Immigration and Employment Law: A Marriage Made in Temporary Foreign Worker Heaven
By Sharaf Sultan
The immigration landscape in Canada is increasingly being driven by temporary foreign workers. What used to be a system dominated by the entry of permanent residents has evolved increasingly into one aimed at facilitating the movement of individuals with prearranged employment.
Employers are also increasingly influencing the immigration system through their role in determining who is entitled to reside in Canada. This change is primarily driven by recent changes to immigration laws that have resulted in employers having a significant amount of responsibility with respect to both the initial immigration stage and regarding ongoing compliance.
All signs are that changes made to date will only become more deeply entrenched. While these changes are likely to have many side effects, they are most likely to have the greatest impact in two ways: 1. Employers will play an increasingly central role in the administration of the immigration system and 2. Employers will have much greater responsibilities with respect to compliance than they have had in the past.
What this means is that employment law principles are increasingly playing a central role in almost all matters relating to immigration. Employers specifically need to ensure that they incorporate employment law matters, including employment standards, into their overall immigration strategy. Matters such as how you hire a foreigner, when you hire a foreigner, how much you pay such an individual, touch on both immigration and employment legislation and regulations.
The evolution of both immigration laws and regulations accordingly means that the traditional line between immigration and employment law is not just becoming blurred; it is being erased all together. To approach one area without a comprehensive understanding of the other is becoming increasingly akin to attempting to fly a plane with one wing.
The good news is that these new challenges can be met and that doing so is worth the effort. Specifically, companies that integrate immigration matters into both Human Resources planning and policies will be at an advantage to their competitors.
But how exactly you may ask,
In a world where employers’ success is increasingly dependent on both capturing and retaining talented employees, employers that integrate immigration and employment law in a seamless manner will be better able to get the employees they want to Canada as quickly as possible while significantly reducing the risk that they will not be approved for a permit or turned away upon arrival at the border. This is primarily because employers will be better positioned to satisfy Citizenship and Immigration Canada requirements on individual cases and to avoid being subject to penalties relating to non-compliance.
Such employers will also be better positioned to secure work permit extensions or to assist employees with alternatives, such as permanent residency applications. Such employers will also be better able to proactively respond to any changes to the law and to take advantage of the plethora of ever changing exemptions under the law.
Simply put, you will more often than not get and hold onto the employees you want and, what is often more important, keep talent away from key competitors.