The federal government has cancelled the 10% cap on Low-wage Temporary Foreign Workers one week from its implementation.  As previously posted on June 17, 2016 in Time to Count your Employees:  10% Cap on Low-Wage Temporary Foreign Workers Comes into Effect on July 1, 2016, the plan was to reduce the cap for all employers to 10% of the workforce at any given location on July 1st.  Instead, the government is keeping the cap at its current levels.  For employers that first hired Temporary Foreign Workers prior to June 20, 2014, the cap will continue to be 20%, or frozen at the employer’s current level, whichever is lower.  Employers that first hired after that date or are new to the immigration program will, however, be subject to the 10% cap. For further comment from the government on this change, see the full Statement by the Minister of Employment, Workforce Development and Labour The original blog below, as modified by the preceding news, is still relevant for helping understand how the cap affects your business.  As in the original post, this cap only applies to employees that are a) “Low-wage” and b) classified under the government’s “Temporary Foreign Worker” program.  “Low-wage” “Low-wage” means a wage that is below the provincial median hourly wage established by Service Canada.  These are revised from time to time.  As of April 29, 2016, the median hourly wage for Saskatchewan was $22.80.  Any employee paid below this wage is considered to be in a “Low-wage Position”. “Temporary Foreign Worker” The use of this term in common parlance is often at odds with the government’s definition.  Not all foreign workers that are in Canada temporarily are Temporary Foreign Workers.  A Temporary Foreign Worker is an employee for whom a Labour Market Impact Assessment is required.  This is the process by which an employer runs a bona fide job search and satisfies the government that there are no qualified Canadians available for the position.  If satisfied, Service Canada issues an LMIA and the employer hires a foreign worker temporarily.  There are onerous record keeping requirements, costs and the need to lay out a detailed plan as to how the employer will later transition to a Canadian workforce. Many employees, however, are exempt from this LMIA process.   Where employees are LMIA exempt, the employer does not have to prove no Canadians are available.  LMIA-exempt employees fall under what the government calls “International Mobility Programs”. Does the Cap Apply to my Workforce?   The cap, applies to employees that are “Low-wage” (under $22.80 per hour) and “Temporary Foreign Workers” (LMIA required).  If more than the allowed percentage of your workforce meets both of these criteria then you have 20 days to resolve the situation.  Solutions may range from simply hiring more Canadians to finding an International Mobility Program such as a Saskatchewan Immigrant Nominee Program nomination to take your workers out of the calculation. Please contact our office for such solutions or to discuss your business immigration needs generally.

About the author: Brett is business lawyer in the Saskatoon office focusing on corporate and commercial law with a concentration in employer-side immigration.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made us a top ranked firm by Canadian Lawyer magazine (2011, 2013). Innovation, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.