MCKERCHER LLP BARRISTERS & SOLICITORS mckercher.ca SASKATOON 374 Third Avenue South Saskatoon, SK S7K 1M5 (306) 653-2000 F (306) 653-2669 REGINA 500 – 2220 12th Avenue Regina, SK S4P 0M8 (306) 565-6500 F (306) 565-6565 IMMIGRATION LAW Saskatchewan’s Foreign Worker Recruitment and Immigration Services Act Important New Rules for Employers Hiring Foreign Workers PREPARED FOR THE SASKATCHEWAN CHAMBER OF COMMERCE HUMAN RESOURCES COMMITTEE BY: BRETT J. CAVANAUGH December 13, 2013 Resource Bulletin
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McKERcHER LLP BARRISTERS & SOLIcITORS
mckercher.ca
SASKATOON374 Third Avenue South Saskatoon, SK S7K 1M5(306) 653-2000 F (306) 653-2669
REGINA500 – 2220 12th Avenue Regina, SK S4P 0M8(306) 565-6500 F (306) 565-6565
ImmIGRATION LAwSaskatchewan’s Foreign Worker
Recruitment and Immigration Services Act
Important New Rules for Employers Hiring Foreign Workers
PREPAREd fOR ThE SASKATchEwAN chAmbER Of cOmmERcE humAN RESOuRcES cOmmITTEE
On October 11, 2013 the Saskatchewan Government proclaimed The Foreign Worker Recruitment Immigration Services Act. Minister Bill Boyd highlighted its laudable goal to: “protect newcomers to the province who may be vulnerable to exploitation because of their language ability or lack of knowledge about law or culture.” The Act is another crackdown on foreign worker recruiters and immigration consultants, though achieving its goals imposes significant new obligations on employers bringing foreign workers to Saskatchewan.
Regulation of Immigration, Recruitment and Settlement ServicesThe Act distinguishes between immigration services, recruitment services and settlement services. Those providing immigration services or recruitment services under the new Act must be licensed, with certain exceptions. Employers now need to more carefully evaluate the third parties they have been working with to bring foreign workers to Canada.
Immigration services are defined as assisting a foreign national in immigrating to Saskatchewan, including:
(i) researching and advising on immigration laws or processes;(ii) preparing or assisting in the preparation, filing and presentation of applications and documents related to immigration; (iii) representing a foreign national to or before immigration authorities; and (iv) providing or procuring settlement services.
Recruitment services are defined as assisting a foreign
national or an employer to secure employment for a foreign national in Saskatchewan, including, amongst others:
(i)finding or attempting to find employment in Saskatchewan for a foreign national;(ii) assisting or advising an employer in the hiring of a foreign national;(iii)referring a foreign national to a person who does the above; and(iv)providing or procuring settlement services.
Settlement services are when a recruiter or immigration consultant assists a foreign national in adapting to Saskatchewan’s society or economy or in obtaining access to social, economic, government or community programs, networks and services.
Existing Prohibition on Providing Paid Immigration AdviceThis is nothing truly new for those providing immigration advice. Section 91 of the federal Immigration and Refugee Protection Act, has long prohibited immigration representation or advice for consideration, unless the person representing or advising is a lawyer, paralegal, supervised student-at-law or licensed immigration consultant. The
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SASKATchewAn’S FoReign woRKeR RecRuiTMenT And iMMigRATion SeRviceS AcT
Important New Rules for Employers Hiring Foreign Workers
By BReTT J. cAvAnAughPrepared for the Saskatchewan chamber of commerce human Resources committee
Federal Court of Appeal has held that the regulations brought in by s. 91 are constitutional. Leave to appeal to the Supreme Court of Canada was refused and the case has been positively treated. Since this law was enacted on June 30, 2011, the immigration legal community has expressed concern that employers were technically afoul of this legislation, because it has been a common practice for human resource employees to offer immigration advice to prospective foreign workers. This offends s. 91 because employees indirectly receive consideration for this work, by virtue of being paid by their employers to perform their job. Citizenship and Immigration Canada has recently been enforcing this rule and sending employers warning letters or worse. The government appears to be aware that many employers were acting in good faith, but is nevertheless now enforcing the letter of the law, and it is therefore advisable to more strictly comply. Employees should not be providing immigration advice unless they are lawyers or federally licensed consultants. Given federal s. 91, the Saskatchewan Act will simply add one more registration step for this latter category.
Third Party Recruiters must now be LicensedThe Saskatchewan Act’s unique legal change is that recruiters must now be licensed. There is no federal licensing requirement for the people that put employers and foreign employees together. Under the new Act, any person assisting a foreign national in finding employment in Saskatchewan or assisting an employer in the hiring of a foreign national is deemed to provide “recruitment services” and requires a license. Many employers turn to recruiters out of necessity, in order to match employer demand to worldwide labour supply. Companies simply need to more carefully scrutinize their recruiters going forward.
Employers should not work with an unlicensed recruiter now, but certainly not after January 8, 2014, the extended deadline for existing recruiters to apply for a license. New recruiters have to become licensed before providing recruitment services. Recruiters have to provide the
government a $20,000 security deposit, meaning many will not be able to continue their line of work, or worse, continue unlicensed. Insisting recruiters provide proof of licensing is recommended.
In-house recruiters do not need to be licensed. Recruiting foreign workers for one’s own business or one’s employer is exempt, as are family members and those acting for certain educational institutions. The Act targets third party recruiters.
Employers must Pay for Recruitment ServicesEmployers must bear the full costs of recruitment services. The Act prohibits charging anyone other than an employer, whether directly or indirectly, a fee for recruitment services or employment. The term of any contract providing
otherwise is void and no employer can reduce a worker’s wages to recover recruitment costs. Recruiters and consultants must disclose referral fees to foreign workers.
Prohibited Practices, Employer Registration and New RequirementsThe Act lists other new prohibited employer practices, including distributing misleading information, taking possession of a foreign worker’s passport or property, misrepresenting employment opportunities, threatening deportation or contacting a foreign worker’s family after being requested not to do so. While the Act does not specify
mckercher.caSASKATOON374 Third Avenue South Saskatoon, SK S7K 1M5(306) 653-2000 F (306) 653-2669
REGINA500 – 2220 12th Avenue Regina, SK S4P 0M8(306) 565-6500 F (306) 565-6565
with offices in Regina and Saskatoon, McKercher LLP has over 60 practicing lawyers in all major areas of law. These lawyers are backed by an outstanding team of support staff with a wealth of resources. we are strategically positioned to take advantage of all that Saskatchewan has to offer. Tracing our roots back to 1926, we are proud of what we have accomplished and consistently work towards serving our clients with innovation and integrity.
McKercher LLP’s immigration practice group offers a full range of legal services with regards to immigrating to canada. we handle all type of canadian immigration cases and non-immigration visas, and specialize in business and family immigration.
This resource bulletin is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. counsel should be consulted concerning your own situation and any specific legal questions you may have.
what employers’ contracts with a foreign worker must contain, it does for recruiters and consultants’ contracts with foreign workers, so employers should ensure third parties they work with use legal contracts.
Importantly, employers themselves must now register with the government before hiring a foreign worker. There are carved out exceptions including employers already registered with the Saskatchewan Immigrant Nominee Program, hiring foreign nationals who are on open work permits, and hiring foreign nationals that are work permit or Labour Market Opinion exempt (unless they are clergy or exempt by virtue of an international agreement such as NAFTA). Employers would be wise to consider whether they need to register.
Registered employers also have new record keeping requirements. The Act dictates registered employers and former registered employers prepare and retain complete and accurate records relating to immigration services or recruitment services for at least five years after the date on which they were created.
Penalties under the Act are significant. Individuals can be fined up to $50,000 and face prison terms. Corporations can be fined up to $100,000. To comply with Saskatchewan’s onerous new standards, employers should evaluate current recruitment practices against the Act and its regulations carefully, register with the government if required, ensure third party recruiters and consultants are licensed and seek legal advice as needed.
Brett J. cavanaugh, a lawyer in McKercher LLP’s Saskatoon office, maintains a corporate and commercial law practice with particular emphasis in the area of employer-side immigration issues.
