On April 24, 2014, the Minister of Employment and Social Development Canada (ESDC), Jason Kenney, issued a statement “announcing an immediate moratorium on the Food Services Sector’s access to the Temporary Foreign Worker Program” in response to the media frenzy over allegations of employer abuse of the Temporary Foreign Worker Program (TFWP). This moratorium will affect numerous Temporary Foreign Workers (TFWs) who are already working in Canada, or who had plans to come to Canada to work in the Food Services Sector. With this moratorium, employers are unable to obtain a Labour Market Opinion (LMO) authorizing them to either hire or continue the employment of a TFW – ESDC has suspended processing of all LMO applications for food service industry positions. In addition, Citizenship and Immigration Canada (CIC) has put a hold on processing all Work Permit applications that are based on a valid LMO for a job in the Food Services Sector. This includes LMOs and Work Permit applications for both skilled and semi-skilled positions. The moratorium is expected to remain in effect until the completion of an ongoing review of the TFWP. This blog post explores the implications the moratorium has for immigration lawyers and their TFW clients.
While immigration law practitioners have come to expect the unexpected from both CIC and ESDC, this moratorium has produced more questions than usual within the immigration bar, likely due to the fact that it is a knee-jerk reaction to media frenzy as opposed to a well (or even not-so-well) thought out plan. Most of these questions remain unanswered despite attempts by immigration lawyers to get clarification on the moratorium. According to the ESDC website, “LMOs will not be processed for occupations classified by the 2002 North American Industrial Classification System (NAICS 2002) in Food Services and Drinking Places (NAICS subsector 722). Specifically, certain occupations related to sales and service and sales and service management as set out in the National Occupational Classification (NOC 2006)”. NAICS (i.e. North American Industry Classification System) subsector 722 “does not include food service activities that occur within establishments such as hotels,” however it is unclear at this point whether this exclusion will be reflected in the issuance of LMOs. The website also provides a list of all the occupations affected by this moratorium. Some of these jobs quite obviously fall under the Food Services Sector umbrella; for example, food and beverage servers, cooks and bartenders. However, the list also includes jobs that one would not normally connect to the food services industry, such as dry cleaning and laundry occupations, retail trade managers and janitors, caretakers and building superintendents. Phone calls to Service Canada and discussions amongst immigration law practitioners with respect to what specifically constitutes the “Food Services Sector” or why some of the listed occupations are included in or affected by the moratorium have not produced any answers, nor has a question and answer posting on the ESDC website.
The moratorium affects both employers and TFWs. While some are immediately impacted by it, others may escape its consequences depending on how long it lasts. For employers, who require an LMO to hire a foreign worker, the moratorium lends to the possibility of a depleted or lost labour force (unless they are willing to employ TFWs who remain in Canada illegally, which is NOT advised). For TFWs, who depend on an LMO to maintain both employment and legal status in Canada, the moratorium will lead to immediate or potential unemployment and the possibility of having to leave the country. Those TFWs who are currently working in Canada and have an application to extend a Work Permit in processing will be able to continue their employment with their current employers until they receive decisions on their applications, as long as they were submitted prior to the expirations of their current Work Permits. If/when the moratorium lifts, these TFWs may be issued Work Permits. However, TFWs who do not already have applications in processing will have to cease working upon the expiration of their Work Permits and are expected to leave Canada at that time, unless they have found employers with LMOs for positions outside the Food Services Sector. (Such employers will be few and far between, especially given that the moratorium applies to occupations that are “parallel” to the occupations currently being held by many of these TFWs.) If/when the moratorium lifts, some of these individuals may still be eligible for Work Permits; some will decide to go home, in accordance with their Work Permit conditions, while others may decide to remain in Canada, either working illegally or not at all, and with no options for obtaining new Work Permits from within Canada at any future time.
The lack of clarity has made it extremely difficult to advise TFW and employer clients on matters related to the employment of TFWs, as well as Work Permit and permanent resident applications. Service Canada has advised that further announcements clarifying the specifics of the moratorium will be issued; however, these announcements and clarifications have yet to happen. In the meantime, immigration lawyers are faced with the difficult task of advising their clients on the unknown, and preparing them for the worst.