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Immigration lawyer explains programs
I read editor John Harding’s April 17 editorial (Filipinos Welcome) with a combination of delight and relief.
Having practiced immigration law for nearly 25 years, it has been my observation that our foreign worker program is largely misunderstood and, sadly, the foreign workers take the brunt of our wrath when issues such as the current concerns about foreign workers at McDonald’s are raised. In reality, the Filipinos working at McDonald’s may very likely not have come through the foreign worker program and may not even be temporary workers but actual permanent residents or citizens of Canada.
When reference is made to the Temporary Foreign Worker Program (TFWP), this is generally describing the process of bringing workers to Canada by way of an employer obtaining a Labour Market Opinion (LMO) from Service Canada. Service Canada is essentially Canada’s own human resources department and it is their mandate to ensure that Canadians have first crack at jobs in Canada. Service Canada will only issue an LMO to an employer who has made an application and demonstrated that they have made the necessary recruitment efforts to hire local Canadian citizens or permanent residents. Currently, the necessary period of advertising is for a minimum of four weeks in a minimum of three different sources. For lower-skilled workers such as food counter attendants and kitchen helpers, the advertising requirements are more stringent than this. Once Service Canada reviews the employer’s application, which includes proof of the advertising, an LMO will be issued only when the officer is satisfied there were no suitable Canadian applicants.
It is with the LMO that an individual applies for a work permit to come to Canada. This application for a work permit must be made overseas and cannot initially be made from within Canada. It is not a process that employers turn to lightly as it is expensive and time consuming.
However, there are many other ways that people may be working in Canada and the LMO process is only one facet of the TFWP. Canada is party to several bi-lateral trade agreements which allow for the exchange of youth between member nations. We also allow for the exchange of workers between corporate branch offices under the Inter-company transferee category. In addition, we have work permit options within our Immigrant program. Persons who are married to Canadians and are sponsored for permanent residence from within Canada are eligible for open work permits.
Canada’s Live-in-Caregiver program is also part of Canada’s economic immigration stream that allows individual employers to bring foreign workers to live in their home and provide care for children and elderly family members. There are few such workers in Canada and this program is in high demand. Live-in-Caregivers, who come to Canada on initial work permits under the TFWP program, are eligible to apply for permanent residence after two years of employment. Once their application is approved in principle, they are also eligible for open work permits. Given the lengthy processing times of the permanent residence application process, individuals may remain on open work permits for many years. The greatest number of Live-In-Caregivers to Canada come from the Philippines. These people settle permanently in Canada with their families and make Canada their home.
As a professional woman, I have had the good fortune to have had several Filipino nannies help me in raising my children. Many of these women are considered to be extended family members by my family.
They have embraced Canada and raised their children and grandchildren here. So it was with relief that I read Harding’s editorial that recognizes their contribution to our communities. As an immigration lawyer, I can also anticipate that many of the workers at the McDonald’s may not even be temporary foreign workers but actual immigrants. Service Canada’s policy of requiring Canadian employers to place jobs with “Canadians first” is a good one. There have been many recent changes to enhance the TFW program and ensure that this policy is fulfilled. However, in the current situation in our community, the individuals involved may already be “Canadians”.
Catherine Sas, QC, is a partner in the immigration group of Miller Thomson LLP. She is a past chair of both the B.C. Immigration Law section and National Immigration Law section of the Canadian Bar Association. E-mail: firstname.lastname@example.org