CIMM Committee Report

Introduction

If these are good workers, if we can't fill the positions and they want to stay—and we want them to stay—what is that process going to look like? Will they be able to? Will they not be able to? That's what I start to worry about. What are we going to face in the go-forward?[27]

The Committee believes that all temporary foreign workers in the current programs should have the opportunity to apply for permanent residency after meeting certain criteria, an opportunity not currently universally available to them. The Committee’s vision is the vision of immigration that Canada has long cherished: mutual commitment on the part of immigrants and this country to work hard and invest in improving the future. We want immigrants to feel that Canada is welcoming and that there are no barriers to social and economic participation. We also want them to feel that it is worthwhile to commit their time, talents and their children’s futures here. These commitments follow naturally from permanent immigration, serving all parties—employers, workers, and communities—well. The Committee recognizes that many workers and employers desire their employment arrangement to be permanent and we feel that permanent migration is in Canada’s best interests. Of course, those who do not wish to apply to remain in Canada would be under no obligation to do so.

While temporary work programs diverge from the Committee’s vision of immigration, providing a pathway to permanent residency to all temporary foreign workers is a step in the right direction. Allowing temporary foreign workers in the current programs access to permanent residency is the best short term measure, coupled with the long-term changes previously mentioned. In the long term, when the temporary foreign worker program is more limited and reserved for genuinely temporary situations, a path to permanent residency may no longer be desired.

There are three avenues currently available for transitioning from temporary to permanent status from within Canada: the provincial nominee programs, the live-in caregiver program and the Canadian Experience Class. Witnesses addressed the current opportunities for transition to permanent residency, identifying concerns and helping to shape the Committee’s recommendation for a broader avenue.

Provincial Nominee Program

Section 87 of the Immigration and Refugee Protection Regulations[28] creates the provincial nominee class of economic immigrants, pursuant to which a person may become a permanent resident of Canada if nominated by a province under a provincial nominee agreement between the Government of Canada and the government of the province. All 10 provinces and one territory have entered into these agreements, with the overarching aim of filling labour shortages identified by provincial and territorial governments.

Each provincial or territorial nominee program is unique, varying in eligibility criteria, program size and history. This variation in provincial nominee programs also affects the opportunities for temporary foreign workers to transition into permanent residency. Two temporary foreign workers with the same profile could have different opportunities to settle permanently based on the province or territory of their original work permit. Factors such as years of schooling, official language capability and occupational classification are assigned different values in the different programs.

As the Committee traveled across Canada, it was clear that in some provinces, the temporary foreign worker and provincial nominee programs were working in tandem to provide a pathway to permanent status for temporary foreign workers needed on a long-term basis. Eric Johansen described the partnership in his province as follows:

The temporary foreign worker program generally has quicker access to workers than can be provided through an immigration program, such as the Saskatchewan immigrant nominee program, or any other federal stream, so it's very critical for employers. We've designed our nominee program to take advantage of that fact, and we have several categories in which individuals come into the province initially on a temporary work permit gained through a labour market opinion process with Service Canada. When they're here for six months, they can then apply to our nominee program for permanent status. So we see that two-step program as often serving employers very effectively. If we can get more temporary foreign workers here, we think it'll build our program and help us meet our goals as well.[29]

The Committee was impressed with the way that some provinces, in particular Saskatchewan and Manitoba, use the temporary foreign worker program to meet long-term labour market challenges and strengthen communities. Their strategic approach and collaboration between business, government, and community sectors is a good news story that might be of interest to other jurisdictions. All measures should be taken to facilitate the transition from temporary worker to permanent resident through the provincial nominee avenue.

Recommendation 3

The Committee recommends that the Government of Canada initiate dialogue and facilitate cooperation with the provinces and territories, so that the temporary foreign worker and provincial nominee programs function together smoothly to provide a pathway to permanent residency.

Live-in Caregiver Program

People who enter Canada under the Live-in Caregiver Program are eligible to apply for permanent resident status if they have completed two years (24 months) of authorized full-time employment as a live-in caregiver within three years from the date of entry into Canada under the program. Additional eligibility criteria such as a valid work permit and valid passport and admissibility criteria for permanent residency must also be met.

Witnesses generally applauded the opportunity available to live-in caregivers to apply for permanent resident status. However, their testimony revealed that the current policy increases the vulnerability of live-in caregivers and provides insufficient flexibility to meet eligibility criteria. In particular, caregivers are under great pressure to complete the required period of employment. The stakes are high not only for themselves, but also for their families left behind in the country of origin who are hoping to reunite in Canada as permanent residents.

In this context, periods of unemployment can be devastating. Witnesses suggested that caregivers tolerate poor working conditions in order to meet the employment requirements:

For example, many of them are forced to work overtime without pay or are forced to work without pay at all. Since enforcing their rights could potentially mean getting fired and being unable to complete the two-year employment requirement for permanent residence, caregivers are almost always willing to tolerate abuse from the employer.[30]

Witnesses also suggested that live-in caregivers sometimes failed to complete the period of employment due to circumstances beyond their control, such as illness, relocation with the employer overseas, pregnancy, or the death of an employer.[31] When a live-in caregiver loses her job, witnesses attested to waiting periods of several months for a new work permit to be authorized, further affecting the worker’s prospects of completing sufficient months of employment to apply for permanent residency.[32]

Live-in caregivers who do not fulfill the requirements for permanent resident status are sent home to their country of origin. They have the right to apply for humanitarian and compassionate consideration to remain in Canada, although this provision is meant to be for exceptional cases. One witness stated that the Federal Court and CIC have offered very little leniency in these situations.[33] Yet the consequences of not meeting the employment requirements can be devastating for a family.

The Committee recognizes that the current program places the live-in caregiver in a disadvantaged position, dependent on her employment for more than her livelihood. No one should feel that they have to tolerate mistreatment in the short-term for the long-term gain of permanent residency. Nor should anyone be prevented from obtaining permanent residency when they fail to meet requirements through no fault of their own. Greater flexibility should be introduced into this policy.

Recommendation 4

The Committee recommends that the Government of Canada provide for a possible one-year extension of the three-year period during which a live-in caregiver must complete 24 months of employment in order to be eligible to apply for permanent resident status, when there is a good reason the live-in caregiver did not complete the employment requirements within the initial three-year period.

Recommendation 5

The Committee recommends the implementation of the "Juana Tejada Law" which would exempt live-in caregivers from the second medical exam when they apply for permanent residence.

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Canadian Experience Class

The Canadian Experience Class (CEC) was introduced in Budget 2007 and implemented in August 2008. It allows certain skilled temporary foreign workers and international students with Canadian degrees and Canadian work experience to apply for permanent residency from within Canada. The Immigration Levels Plan for 2009 indicates that the government anticipates 5,000 to 7,500 individuals will become permanent residents through this new channel.

The idea of allowing temporary workers to apply for permanent residency from within Canada appealed to many witnesses. Some were concerned, however, that the eligibility criteria for the CEC (in development at the time of this study but announced officially on August 12, 2008) would reflect the same preferences as the points system in place for skilled workers.[34] In particular, witnesses were concerned that individuals with lower levels of formal training and/or lower levels of official language ability would not be eligible for the CEC. While some felt that excluding such individuals was wrong as a matter of principle, others were concerned with retaining their current temporary workers.

When the CEC was officially announced in August 2008, it was confirmed that this path to permanent residency is available to temporary foreign workers with skilled work experience in Canada. Under the Canadian National Occupational Classification, skilled work experience means skill types O, A or B (managerial, professional or technical occupations, and skilled trades). Temporary foreign workers with lower levels of formal training are not eligible to apply for permanent residency under the CEC.

While the Committee applauds the introduction of the CEC as a pathway to permanent residency for some temporary foreign workers, we believe that it is too narrow in scope. Following the success of the live-in caregiver program, the Committee believes that the transition to permanent residency should emphasize employment and ability to settle in Canada. All temporary foreign workers should be eligible to apply for permanent resident status after working 24 months within a 36 month period, with the possibility of extension in extenuating circumstances as recommended above. Seasonal agricultural workers and others with shorter work permits would need to be accommodated through special requirements for the eligible employment period.

Recommendation 6

The Committee recommends that the Government of Canada create a path to permanent residency for all temporary foreign workers modeled on the opportunity currently available to live-in caregivers.

Supportive Policy Changes

Following from the premise that all temporary foreign workers should be eligible to apply for permanent residency, other policy changes are needed to facilitate the workers’ long-term integration. They include family accompaniment and work permits for family members.

A. Family Accompaniment

Not all temporary foreign workers bring their families when they come to work in Canada. The visa officer will take into account the ability of the temporary worker applicant to support any dependants on the anticipated salary. Because workers with lower levels of formal training generally earn less, they are less likely to be able to demonstrate adequate financial support and therefore less likely to be accompanied by family members.

The experience of live-in caregivers illustrates some of the difficulties of family separation during the period of employment as temporary foreign workers and during the transition to permanent residents. After receiving permanent resident status, former live-in caregivers may apply to sponsor family members if they qualify as eligible sponsors.[35] The entire process, from the caregivers’ departure from their country of origin to reuniting in Canada can take years. One study found that Filipino youth experienced an average of five years of separation from their live-in caregiver parent[36] (most often, their mother). Witnesses told the Committee about the adverse effects of what often turns out to be prolonged family separation under this program:

Often the years of separation result in trauma of these Filipino youth. A recent study with [the University of British Columbia] found that family reunification and family separation have resulted in the youth's lack of integration and isolation here in Canada.[37]

Witnesses identified family separation as a concern and felt that all temporary foreign workers should be entitled to bring their immediate family members or have a clear path to family reunification. The reasons for this position varied. Some felt that family separation contributed to workers’ isolation[38] and social problems such as alcoholism. It was felt that permitting family members to accompany temporary foreign workers would assist them to integrate, especially for the long-term.

Others felt that it is a question of equal rights. Eugénie Depatie-Pelletier observed, “In the recognition of temporary family reunification rights, that is to say the right to bring in one's family during the worker's stay in Canada, and also with regard to recognition of the right to seek permanent status, we see that there is discrimination based on gender, on sex, and also on the basis of certain countries of origin.”[39] Others claimed simply that those with lower levels of formal training should have the same rights with respect to family as the highly skilled.[40]

The Committee recognizes that, where family separation occurs, it is not in the best interests of anyone—workers, their children, or Canadian society. It is not an acceptable consequence of government policy and administration that youth, many of whom are future Canadian citizens, become isolated and have difficulty integrating into Canadian society. Accordingly, the Committee believes that the immediate family of temporary foreign workers should have the opportunity to accompany the worker to Canada.

For those situations that are short-term and truly temporary, family separation may be preferred to relocation. Work permits of six months or less should authorize only the worker’s entry to Canada. In addition, in situations where the temporary foreign worker will reside in employer-provided housing, family accompaniment may not be practical, unless the family resides separate from the principal worker.

Enabling accompanying immediate family members to work, as proposed in the next recommendation, increases the family’s earning potential and likelihood of coming together to Canada. However, the Committee believes that this outcome should be monitored, in the event that further changes are required to avoid family separation for temporary foreign workers. The effect on family is one aspect that the proposed advisory board could monitor.

Recommendation 7

The Committee recommends that the Government of Canada mandate the proposed temporary foreign worker advisory board to include family separation in its monitoring.

B. Work Permits for Family Members

Under the current temporary foreign worker programs, family members accompanying the worker may not necessarily be eligible to work. For instance, spouses of workers with lower levels of formal training are limited in their opportunities to work in Canada. They may only work if they too apply as temporary foreign workers and are not automatically issued an open work permit, unlike spouses of highly skilled workers. [41]

Witnesses explained that this limitation inhibits the long-term settlement of temporary foreign workers under existing avenues. Chelsea Jukes, a human resources consultant, identified the lack of an open work permit for spouses as “one of the biggest stumbling blocks” faced by her transport company. She explained the impact it has had on their recruitment efforts:

It has contributed in some of our locations to up to 90% of our turnover for the drivers who have left. Ninety percent of them would identify that the inability of their spouse to settle in our communities and in Canada was one of the biggest factors in going home.[42]

The Committee believes that immediate family members of all temporary foreign workers should be automatically eligible for an open work permit if they are in Canada. We applaud the government of New Brunswick, which has approached CIC to conduct a pilot project along these lines. It is a matter of fairness to extend the same opportunities to families regardless of the skill classification of the temporary worker applicant. Furthermore, spouses and teen-aged children are a potential pool of labour that should not be overlooked, especially given the current demand. Finally, if we want to encourage temporary foreign workers to remain in Canada as permanent residents, it is unwise to deny them the opportunity to work in the initial stages, especially as this barrier may jeopardize their likelihood of staying long-term.

Recommendation 8

The Committee recommends that the Immigration and Refugee Protection Regulations be amended so that accompanying immediate family members of persons with a temporary work permit are automatically eligible for an open work permit.

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