By: Pavan Dhillon
Canada, much like the United States, has adopted increasingly protectionist immigration policies that are intended to strengthen the Canadian economy by restricting both temporary resident and permanent residency applications. Employment and Social Development Canada (ESDC), Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) administer and adjudicate Canadian Immigration related applications and are responsible for undertaking enforcement action against non-compliant employers and individuals.
A major difference between United States and Canada’s Immigration reform efforts, is that Canadian agencies can adopt fundamental policy changes through Ministerial instructions. Pursuant to Section 87.3 of the Immigration and Refugee Protection Act (IRPA), the Minister can introduce sweeping reforms of immigration laws that affects “processing of applications” including establishing categories of applications and conditions that must be met. The Harper Government has relied heavily on this provision to fundamentally alter the Canadian immigration landscape. In particular, the liberal use of the ministerial instructions allow the government to use enormous discretion and can to a large degree bypass the checks and balances built into the democratic system. For instance, the ministerial instructions were used to institute a moratorium on parental sponsorships for a two year period. The options to permanent residency in Canada is increasingly narrowing with the introduction of various ministerial instructions but the ministerial instructions have also been used liberally to implement a strict employer compliance regime.
In addition to outlining immigration related general offences and penalties, Canada has recently implemented significant compliance directives including increased inspections and abuse detection measures, increased information sharing between government agencies and increased enforcement measures including site visits and compliance reviews.
With heightened compliance initiatives, Citizenship and Immigration Canada has also provided unequivocal guidance affecting Human Resources (“HR”) professionals who may be at a risk of engaging in the unauthorized practice of providing immigration advice to their employees. The directive is also aimed to provide similar guidance to other professionals who may facilitate an immigration application such as educational agents, adoption agencies and live-in caregivers’ agents.
Specifically, pursuant to Section 91 of IRPA, only the following persons are permitted to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with Canadian immigration applications or proceedings under IRPA:
- A lawyer who is a member in good standing of a law society of a province or
- A notary who is a member in good standing of the Chambre des notaires du Québec;
- Any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
- A member in good standing of a body designated the IRPA regulations (ie. Immigration Consultants)
Any other individuals providing representation or advice may face harsh penalties for unauthorized representation, which is considered to be an immigration offence. Pursuant to Section 91(9) of IRPA, unauthorized representatives may be liable, on conviction on indictment, to a fine to a fine of not more than $100,000 or to imprisonment for a term of not more than two years, or to both; or on summary conviction, to a fine of not more than $20,000 or to imprisonment for a term of not more than six months, or to both.
Granted these harsh penalties will generally be reserved for those who engage in fraudulent activity, but there are nevertheless repercussions for HR professionals. CIC provided the following directive limiting the role of HR professionals in order to provide additional guidance for those stakeholders legitimately involved in an immigration application. Specifically, HR professionals cannot:
- Explain and/or advise an employee about his or her immigration options. This would include permanent residency and temporary resident applications (such as work permits and temporary resident visas) but, strictly interpreted, may also extend to business visitor applications
- Guide an employee on how to select the best immigration stream
- Complete and/or submit immigration forms on an employee’s behalf
- Communicate with CIC and the CBSA on the employee’s behalf (except to provide ancillary translation services regarding an employee’s written or spoken submissions)
- Represent an employee in an immigration application or proceeding
- Advertise that the HR representative can provide immigration advice for consideration
- Complete applications forms, such as work permits and visa applications, on behalf of workers recruited.
HR professionals can however perform the following limited tasks:
- Direct an employee to the CIC website to find information on immigration programs, application forms, or authorized immigration representatives
- Provide ancillary services such as translation, travel arrangements and couriers
- Advise international students on course selection or registration
- Conduct job interviews (as well as conduct recruitment efforts)
- Complete Labour Market Impact Assessment (LMIA) application forms on behalf of the employer
HR Professionals engaging in these prohibited activities are exposing not only their companies and employees but also themselves to liability and risk. licensed Canadian immigration attorneys or certified immigration consultants should be consulted prior to advising any employee about his or her immigration options.
If you have further questions regarding immigration, generally or Canadian laws, specifically, please contact the author, a member of Seyfarth’s Immigration Department or your Seyfarth attorney.