David Nurse
David Nurse, Counsel with McInnes Cooper
Meghan Felt
Meghan Felt, Lawyer, McInnes Cooper
 

On January 27, 2017, the governments of the four Atlantic provinces and the federal government announced details of the Atlantic Immigration Pilot. The Pilot is one part of the Atlantic Growth Strategy announced in summer 2016 that, in addition to the new immigration initiative, involves actions in the areas of innovation, clean jobs and climate change, trade and investment and infrastructure. The Pilot will operate for three years, and over that time will allow the Atlantic region the opportunity to attract up to 2,000 additional principal applicant immigrants. In addition to offering a considerable boost to immigration in the region, the Pilot is designed to also test innovative approaches to retaining immigrants.

The Pilot does offer some significant immigration opportunities for Atlantic Canadian employers. It’s clear the Pilot is aimed at medium and larger-sized employers with identified skills shortages looking to hire a significant number of foreign workers to fill their labour gaps over the next three years. However, the Pilot also creates new risks and obligations making it unlikely to appeal to smaller employers that might hire only one or two foreign workers over the next three years. Neither does it open any new doors to individuals looking to immigrate to Canada unless they have a job offer from an employer participating in the Pilot.

Here are the key opportunities and risks of the Pilot that employers in Atlantic Canada need to know.

  1. The Pilot is employer-driven and employers must apply for designation to participate.

Employers must apply to be “designated” as an approved participant in the Pilot, and this requires they meet certain eligibility criteria. But this designation process and the demands of the eligibility criteria could deter smaller employers from participating.  To be eligible for designation, the employer must provide company details, project their labour market needs and commit to assisting with settlement of workers and their families in their designation application to demonstrate they meet these eligibility criteria:

  • Want to hire full-time, non-seasonal international candidates.
  • Operate a business that’s well-established and in good standing. In particular, it appears an employer must have been in active operation, under current management, in the Atlantic Region for at least two (2) years before applying for designation under the Pilot. This criteria seems to effectively shut-out new businesses that often have difficulty filling high-skilled positions.
  • Be committed to meeting the settlement needs of international candidate(s) and accompanying family members. 
  1. The Pilot does allow employers to avoid the onerous Labour Market Impact Assessment (LMIA) process. 

A key benefit of the Pilot is the opportunity for designated employers permitted to participate in the Pilot to obtain a letter of support from the Province that allows them to avoid the LMIA process. For many employers, the only existing pathway to hiring a foreign worker(s) is the Temporary Foreign Worker Program (TFWP). The TFWP requires an employer to obtain the federal government’s approval, in the form of a Labour Market Impact Assessment (LMIA), before it can hire a foreign worker. But the LMIA process is onerous: there’s an application fee for a LMIA (currently $1,000 per position), advertising requirements (though there are some narrow exceptions), and the processing time is often lengthy, fraught with frequent delays in the review and approval of LMIA applications. The Pilot still requires an employer to demonstrate there’s a clear labour gap, but the process will be less onerous, expensive and lengthily than the LMIA process.

  1. The Pilot requires employers to do more for workers and their families. 

Employers are being asked to take on a greater role in the settlement and integration of foreign workers and their families. This approach is innovative, and addresses an identified and significant problem: Atlantic Canada’s low immigrant retention numbers. But it also creates potential financial and legal risks. While well-intended, many smaller employers without full-time human resources staff to manage these additional responsibilities or the financial resources to take on the related risks will likely view them as onerous. However, medium and large-sized employers that typically have well-trained and experienced human resources staff should be able to effectively manage these additional responsibilities and the associated risks.

To be designated, an employer must commit to partnering with an immigrant settlement agency in its area and to supporting the settlement and integration of the foreign worker and their family members. Assisting the worker’s family may be a significant burden for the employer if the family has high needs (low language ability, for example) and the employer is located in an area with few federally or provincially funded settlement supports.  Furthermore, this obligation could also include a financial commitment from the employer. This is uncharted territory, and it’s unclear at this point just what the financial burden on employers will be. In addition, employers could also be assuming new, additional legal risks by more actively supporting the settlement of workers and their families. It remains to be seen how this will evolve, but presumably, an employer’s failure to comply with the settlement obligations will result in its suspension from the Pilot. And it’s also not known whether non-compliance with the Pilot will result in any restrictions on the employer’s applications under the other Provincial Nominee Program (PNP) streams.

An employer must also commit to fostering a welcoming workplace. Again, however, this could prove onerous for employers, particularly smaller ones with limited resources. Fostering a welcoming workplace might include staff training staff, at the employer’s expense. For example, the Nova Scotia designation application form states: “Activities leading to welcoming workplaces may include employee and management participation in culture and diversity awareness training (at the employer’s own cost) as well as mentoring programs that match newcomer employees with existing employees.”

  1. The Pilot also requires prospective workers to meet certain criteria.

The Pilot doesn’t open any new opportunity to individuals looking to immigrate to Canada unless they have a job offer from a designated employer. The Pilot offers two streams for skilled workers and one stream for international graduates. The specific work experience requirements vary for each stream, but all applicants to Canada under this Pilot must meet these common criteria:

  • Approved language testing demonstrating a minimum level of Canadian Language Benchmark (CLB) of four (4).
  • Canadian high school or equivalent education level, demonstrated by a third-party educational credential assessment.
  • A non-seasonal job offer, in a high-skilled or intermediate-skilled occupation. The Province must also approve and “endorse” the job offer. Although it’s not entirely clear what this entails, presumably it means the Provincial Nominee Program (PNP) will check the job offer to ensure it is indeed medium or high skilled according to Canada’s National Occupational Classification (NOC), that it complies with existing labour laws for the particular province, and that the wage being paid is at or above the prevailing wage rate for the particular occupation in the particular province.
  • The worker must also have a settlement plan, developed in cooperation with an approved settlement agency. However, to date there’s no published list of “approved” settlement agencies.
  1. The Pilot is an additional pathway to – not a replacement of – existing immigration programs.

It’s important employers keep in mind that the Pilot offers a new, additional opportunity to hire foreign workers that will run alongside, rather than replace, any existing Provincial Nominee Programs (PNP) or federal programs. These existing programs will remain available as an option to employers either deterred by the Pilot’s requirements, or that fail to meet the eligibility criteria to participate in the Pilot.  Each Atlantic Province will continue to operate their respective PNPs, the existing federal permanent residence programs, such as the Canadian Experience Class and the Federal Skilled Worker and Trades Programs (to name a few), aren’t changing and the Temporary Foreign Worker (TFWP) and International Mobility Programs remain in place and available to all Canadian employers.

To discuss this or any other legal issue, contact any member of McInnes Cooper’s Immigration Law Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2017.  All rights reserved.

About the authors:

David Nurse is Counsel with McInnes Cooper. David assists clients with a wide-range of immigration matters, including work permit applications and permanent residence applications. David has also advised on the design and implementation of immigration programs while he served as the Director of Programs and Corporate Initiatives with the Nova Scotia Office of Immigration. You can reach David at david.nurse@mcinnescooper.com.

Meghan Felt is a Labour and Employment Lawyer at McInnes Cooper. With a particular focus on Immigration Law, Meghan has represented and advised countless clients with Canadian immigration issues, including corporations seeking labour market opinions and work permits to hire foreign workers. You can reach Meghan at meghan.felt@mcinnescooper.com.