The Next Brain Gain: Unpacking the Global Skills Strategy Evan J. Green, Senior Partner Green and Spiegel LLP

Transcription

1 The Next Brain Gain: Unpacking the Global Skills Strategy Evan J. Green, Senior Partner Green and Spiegel LLP 1

2 Agenda 1. Business Visitor Permit or Work Permit? 2. What Type of Work Permit? 3. Global Skills Strategy Short Duration Work Permit Global Talent Stream 4. Compliance and Enforcement 5. Questions 2

3 Business Visitor Permit or Work Permit? 3

4 What makes a person a Business Visitor? Broad category facilitates entry of foreign nationals into Canada for the purposes of engaging in international business or trade. There must be no intent to enter Canadian labour market Business activity must be international in scope, a presumption of underlying cross-border business activity Primary source of remuneration must be outside Canada Principal place of employment must be outside Canada Accrual of profits of the foreign employer must be outside Canada 4

5 Business Visitors may: Attend meetings, conferences, conventions or trade fairs Train employees at a Canadian subsidiary of a foreign parent Be trained by a Canadian parent for employment at a foreign subsidiary Attend Board of Directors meetings Provide after-sales service Buy goods and services for a foreign business or government Business Visitors may not: Engage in employment that will provide services or create competition within, or remove opportunities from, the Canadian labour market. Receive any form of remuneration from the Canadian company 5

6 What Type of Work Permit? 6

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8 Good News: Two-Week Processing Goal for Skilled Worker Work Permits If the employee is outside of Canada, the application must be made online. If the application is part of the Global Talent Stream, this must be identified through the Come to Canada Tool. Remember to submit the medical exam and biometric fee where applicable. Critical to complete form fully and accurately with correct fees paid, or application will be rejected. 8

9 Global Skills Strategy 9

10 Global Skills Strategy The Global Skills Strategy came into effect in June 2017 in what was promised to be faster access to highly skilled foreign talent to help Canadian companies grow and prosper. The ambitious plan is aimed at reducing barriers and regulatory provisions, helping attract foreign investment, and speeding up the process to bring in foreign skilled talent. There are two main pathways to facilitate the faster entry of skilled foreign workers: 1. Short Duration Work Permit Exemptions and 2. Global Talent Stream for Canadian firms to scale-up their highly-skilled work force with global talent. 10

11 The Short Duration Work Permit Exemption Those entering Canada: to perform work for 1-15 consecutive calendar days or less and six months have passed since the first day of work under the previous use of this exemption; Or for days and 12 months have passed since the first day of work under the previous use of this exemption. The worker must possess a job offer for a position within skill level 0 or A of the National Occupational Classification (software engineers, software developers, managers etc). Researchers day work permit exemption. Renewals and consecutive uses of this exemption are not permitted. 11

12 Eligibility for the Global Talent Stream Companies may be eligible for Category A of the Global Talent Stream if they have been referred to the Global Talent Stream by one of Employment and Social Development Canada s designated partners and are hiring unique and specialized talent. Category A: Unique Specialized Talent: Advanced knowledge of the industry; Advanced degree in an area of specialization of interest to the employer; AND/OR Minimum of five years of experience in the field of specialized experience; AND A highly paid position with a salary of usually $80,000 or more. Employer Must operate in Canada Focus on innovations Have willingness to grow and scale up Requires unique and specialized global talent Has identified a specific foreign worker. Category B: Companies may be eligible for Category B of the Global Talent Stream if they are seeking to hire to hire highly-skilled foreign workers to fill positions in occupations found on the Global Talent occupations list. Global Talent Occupations List NOC 0213 Computer and information systems managers; NOC 2147 computer engineers (except software engineers and designers); NOC 2171 Information systems analysts and consultants; NOC 2172 Database analysts and data administrators; NOC 2173 Software engineers and designers; NOC 2174 Computer programmers and interactive media developers; NOC 2175 Web designers and developers; NOC 2241 Electrical and electronics engineering technologists and technicians who earn a wage of at least $38.94; NOC 2283 Information systems testing technicians who earn a wage of at least $37.50; Sub-set of 5241 Digital Media and Design 12

13 Category A ESDC Designated Partners as of September 2017 Federal Regional Provincial Private National Research Council Industrial Research Assistance Program Federal Economic Development Agency for Southern Ontario (FedDev) Ontario Ministry of Citizenship and Immigration Communitech Corporation Innovation, Science and Economic Development Accelerated Growth Service Atlantic Canada Opportunities Agency (ACOA) Ontario Ministry of Economic Development and Growth Council of Canadian Innovators (CCI) Business Development Bank of Canada Government of Manitoba, Manitoba Education and Training BC Tech Association Global Affairs Canada s Trade Commissioner Service Government of Prince Edward Island, Island Investment Development Inc. MaRS Discovery District Investissement Québec VENN Innovation ICT Manitoba (ICTAM) Invest Ottawa Montréal International Québec International 13

14 Labour Market Benefits Plan for the Global Talent Stream Employers are required to develop a Labour Market Benefits Plan (one time only) that demonstrates a commitment to activities that will have a positive impact on the Canadian labour market. A Labour Market Benefits Plan (LMBP) will help employers and the Government of Canada identify and track employment of highly-skilled global talent. The LMBP is employer specific and employers only create one plan which can be used for subsequent Global Talent Stream Work Permits. Commitments within the LMBP are divided into mandatory and complementary benefits Mandatory Benefits for Category A: provide quantitative targets for jobs creation Mandatory Benefits for Category B: increasing skills and training investments Complementary benefits, could include, but are not limited to, job creation, investment in skills and training, transferring knowledge to Canadians and permanent residents, enhanced company performance and implementing best practices or policies as an employer for the workforce. Activities to support mandatory and complementary benefits could include, but are not limited to: increasing the number of Canadians or permanent residents employed full-time and part-time by the firm establishing educational partnerships with local or regional post-secondary institutes or with other organizations that are supporting skills and training paid co-op or internship programs developing and implementing policies to support the hiring of underrepresented groups directly training Canadians or permanent residents directly supervising and mentoring Canadians or permanent residents increasing growth of revenue, employment or investment; and ensuring compliance with the Temporary Foreign Worker Program requirements. Employers who fail to comply with these requirements will be subject to consequences for non-compliance. 14

15 Labour Market Benefits Plan Benefits LMBP Category A Category B Mandatory Benefit Complementary Benefits Employers must include: one (1) Mandatory Benefit with quantitative targets and timeline Employers must include: At least two (2) Complementary Benefits with quantitative and qualitative indicators and timeline Job creation for Canadians and/or permanent residents Increase in skills and training investments for Canadian workers Increase in skills and training investments for Canadian workers Job creation for Canadians and/or permanent residents Increase in diversity in Canadian workforce Knowledge transfer to Canadian workers Enhanced company performance Best policies and/or practices 15

16 Best Practices and Tips for Global Talent Stream Ensure that the employer contact will be available for the 2 weeks following submission of the application; Officers require quick responses to ensure that service standards are met. Create a detailed addendum for a more productive ESDC phone call. Beware of potential compliance issues and encourage reasonable targets. Diarize 6-month ESDC check-ins to ensure that targets are being met. 16

17 Compliance and Enforcement 17

18 Compliance Review Standard All employers hiring foreign workers are subject to compliance reviews There are no appeals, and rendered determinations are final Review standards is substantially the same (STS) Terms and conditions of the job should be STS as those laid out in the LMIA ESDC will accept limited justifications for divergence from LMIA 18

19 Inspections 25% of all employers of TFWs will be inspected each year Authority to conduct onsite and warrantless inspections 6 years starting on the first day of employment Interview foreign workers and Canadian employees May demand production of any document necessary to demonstrate compliance Banks and payroll companies can be compelled to provide records to verify information provided by employers Tip-line set up for people to report suspected abuse of program 19

20 Consequences of Non-Compliance Suspension of current LMIAs and new LMIA processing during investigations Revocation of LMIAs if rule-breaking is found Published on an ineligible employers list online List will include both employers who have been suspended and employers found to be in violation of rules, and will include the consequences that have been imposed. Fines, and criminal charges and penalties for misrepresentations to ESDC Information sharing by ESDC may trigger employment standards, occupational health and safety, and other investigations 20

21 AMPS for Non-Compliance AMPs came into force December 1, Up to $100,000 per violation / $1M cumulative cap per annum Determined according to a points system that considers: Employer size History of compliance Type of violation, including severity Whether economic benefit was derived from violation If wrongdoing is identified prior to the start of any enforcement or compliance action, a voluntary disclosure may be made in order to mitigate against some, or all of any subsequent penalty 21

22 Questions? 22

23 Evan Green Green and Spiegel LLP 390 Bay Street, Suite 2800 Toronto, ON M5H 2Y2 Canada 23