Canada: FAQs: COVID And Temporary Foreign Workers (TFWs) In Canada

Will an application be refused if an applicant cannot provide a requested document due to the COVID situation?

Are there special COVID related measures for TFW Work Permit Extensions?

There are no special extension rules regarding TFWs who are already in Canada and are seeking to extend a work permit with the same employer and in the same occupation. Such TFWs need to monitor the end date of their work permit and should apply for a work permit extension/renewal well in advance of the end date of their current work permit.

To obtain a work permit renewal, a TFW must demonstrate that they have a work permit category under which they can apply.  If a TFW does not have a category to apply for another work permit, the TFW may need to consider applying to change their status to visitor before the expiry of their current work permit.

Are there special COVID related measures for TFWs in Canada to Change Employers or Occupations?

Can a TFW in Canada obtain a new work permit or finalize PR status by "flagpoling" at a Canada/U.S. Port of Entry?

No.  CBSA and IRCC have made it clear that flagpoling at the border is not currently an option because traveling to the border for immigration purposes is non-essential travel, which is prohibited under the COVID travel restrictions.  Therefore, TFWs in Canada who need to renew their work permit must do so by filing an online work permit extension as they cannot attend at the border to try to get that done. 

Can terms of employment of a TFW in Canada be changed for COVID related reasons?

Changing terms of employment for a TFW may have both employment law and immigration law implications and should be reviewed prior to any changes being implemented.

Generally, where a TFW is working under an employer-specific work permit, IRPA places a condition on employers that the employer continue to provide substantially the same terms and conditions of employment as were set out in the LMIA or in the Employer Portal upload.  However, there can be justification for changes in some circumstances, including due to "changes in economic conditions impacting all employees equally (for example, an economic downturn causing layoffs)" or due to a force majeure.  This justification might apply to some of the changes done in response to the COVID situation. 

For example, TFWs usually work at the location of the employer.  However, many employees due to the COVID situation have been required to work from home if employer premises have been temporarily closed.  Although this is a change in work location, it might be considered temporary and necessary due to government restrictions and therefore might be justified under the IRPA's employer compliance regime. 

However, any change that will fundamentally change the employment terms of a TFW who holds an employer-specific work permit (such as a new position or reduction in salary) will still usually require a new LMIA and/or new work permit before the change is implemented in addition to a consideration of the potential employment law implications.

If a TFW holds an open work permit, such as a post-grad work permit, the employer conditions under IRPA do not apply. However, there may still be employment law implications if terms of employment are changed.

Do changes, due to the impact of COVID, to the employment conditions of a TFW need to be reported to immigration authorities?

This will depend on the nature of the contemplated change.

For employer-specific work permits, minor changes that are a result of COVID restrictions will not usually need to be reported to IRCC, CBSA or ESDC/Service Canada.

For LMIA-based work permit situations, other changes to the employment conditions will usually need to be reported to ESDC/Service Canada and may result in the need to obtain a new LMIA and/or work permit before changes are implemented.  For LMIA-exempt employer specific work permits, changes that negatively affect the terms of employment of a TFW may need to be disclosed to IRCC and may in some cases require a new work permit.

Unfortunately, the line between minor administrative changes that may not need to be reported, and changes that do need to be reported is not well defined.

Employers should also consider whether they may need to file voluntary disclosure with ESDC or IRCC regarding changes to the terms of employment of a TFW.

Can a TFW be terminated during the COVID pandemic?

Termination of employment would be governed by the usual employment law considerations, taking into consideration that there are new job-protected leaves and revisions to employment standards legislation resulting from COVID-19.

However, the termination of a TFW may have implications for a TFW that a Canadian worker may not face. The potential effect on any particular TFW will depend on their work permit situation (such as whether or not they have an employer specific work permit or an open work permit, and the end date of their current work permit) and on whether they have started a permanent resident (PR) application and if so, the PR category under which they have applied.

For example, if a TFW has an employer-specific work permit, then it may be more difficult to mitigate the loss of employment by finding another position, as a new employer-specific work permit would first have to be obtained by a new employer.

Does termination of a TFW negatively affect an application for Permanent Residence?

Does a terminated TFW have to leave Canada right away?

No.  A TFW who holds a valid work permit at the time of termination does not have to immediately leave Canada. The work permit document is a temporary resident document.  It allows the holder to stay in Canada to its end date.  Depending on the end date of the work permit, a TFW may need to consider filing an online extension or change of status application.

Does the employer need to report the termination of a foreign worker to immigration authorities?

As a general rule, there is no obligation on an employer to report the termination of employment to IRCC or to Canada Border Services Agency (CBSA).

If the foreign worker holds an LMIA-based work permit under the TFWP, ESDC/Service Canada takes the position that an employer should advise ESDC's TFWP that the employment has been terminated. This position appears to be based on ESDC's policies and not on any direct statutory obligation. We recommend that employers seek legal advice from corporate immigration counsel regarding this issue.

Does the TFW need to report if they have been laid off or terminated?

Regarding their work permit status, a TFW in Canada does not need to report a lay off or termination to IRCC.  The TFW is allowed to remain in Canada until the end date of their work permit.

However, a TFW who has a PR application in progress usually has an obligation to advise IRCC if their employment ends, or where there are material changes in circumstances regarding employment status. This obligation is set out in the declaration that all applicants agree to when they apply for PR status.

Under an Express Entry PR application, loss of employment may sometimes negatively affect the PR process depending on the stage of the application, and depending on whether the TFW's PR application is under the Canada Experience Class or the Federal Skilled Worker category. 

A TFW who has a PR application based on a provincial nomination will usually have an obligation to report a change in employment status to the provincial program, which could lead to the withdrawal of the PNP nomination. 

Can a terminated TFW still work in Canada?

It depends on the type of work permit the TFW holds. 

If the TFW holds an open work permit, such as a post-graduate work permit, they may use that to continue to work for a new employer until the end date of the work permit.

However, if the TFW holds an employer-specific work permit, they would not be able to work in Canada unless they were able to obtain a new employer-specific work permit through another employer.  That can be an impediment to mitigating the loss of employment.

Will a laid-off or terminated TFW qualify for government assistance?

Are there Travel Restrictions placed on Foreign Nationals (FN) / TFWS seeking to travel to Canada?

Yes. Canada has placed temporary travel restrictions on the entry of foreign nationals, but there are exemptions to the restrictions for TFWs.  The rules are quite complex so legal advice should be sought to review specific situations.

Are there additional COVID related requirements placed on TFWs regarding entry to Canada?

Yes. TFWs who arrive in Canada are required to enter mandatory quarantine for 14 days, unless they qualify for one of the very few exemptions to the quarantine requirement. Significant penalties can be levied against a TFW who violates the mandatory quarantine requirement.  A TFW may also be removed from Canada if they violate the quarantine rules.

TFWs should develop a quarantine plan prior to their arrival in Canada. 

Canadian authorities may follow up with the TFW soon after entry to Canada to check to see if the TFW is complying with the mandatory quarantine obligation.

Some provinces also have additional public health rules and requirements, in addition to the federal government requirements.

Are there additional COVID related requirements placed on Employers regarding the entry of TFWs to Canada?

Yes. Canada's IRPA legislation has been amended to add a number of additional employer conditions which employers must follow to avoid non-compliance.

Conclusion

This FAQ is meant to provide only general information.  Legal advice should be sought for any specific situation.

The hiring and ongoing management of Temporary Foreign Workers (TFWs) in Canada has been affected by the COVID-19 situation and by some of the economic realities facing employers as they deal with the economic fallout of the situation.

A complex array of new rules, procedures and program directives has been introduced, which affect processing options and affect whether a TFW can travel to Canada under one of the exemptions to the travel restrictions. Canada's approach has been to continue to provide exemptions to allow for the entry of TFWs.  LMIAs and work permits applications continue to be accepted and processed, albeit with processing delays.

Employers need to be aware of the new rules and of the increased compliance requirements placed on them.  Given the complexity and the evolving nature of the rules and policies, employers are strongly advised to obtain legal advice regarding these matters.  Policies and procedures are expected to continue to change and evolve.