USA: Trump’ Extreme Immigration Vetting ~ Longer Wait for Perm. Residency, Immigrant Workers

 

It’s now official! On August 25, 2017, the U.S. Citizenship and Immigration Services (USCIS) confirmed that, as a part of President Trump’s “extreme vetting” directives, potential legal immigrant workers will be required to bear in-person interviews with USCIS.

This new interview requirement can apply to anyone moving from an employment-based visa to lawful permanent residency. The new mandate will also require visa holders who are relations of refugees or persons who receive asylum, to undergo an in-person interview after they apply for provisional statusa stage that precedes permanent residency.

U.S. Citizenship and Immigration Services have expressed that these interviews are “phased-in” beginning October 1, 2017. There is no additional guidance as to how long the phase-in period will be. USCIS will also take time in determining the impact that these new procedures will place on processing times.

Interviews are already a part of the immigration process, and, in the past, USCIS conducted them for ALL cases, which was their standard protocol.

However, decades past, USCIS started habitually waiving in-person interviews for employment-based cases at its field offices to avoid duplicating the efforts of USCIS Service Centers, that vetted the cases. Under this new policy, USCIS will not grant such waivers.

The added interview workload and necessary field office training will surely lengthen wait times for permanent resident applicants. Employers and staff ought to plan accordingly for these delays.

 

Supporting Article Research Sources: Mondaq, Ogletree, Deakins, Nash, Smoak & Stewart

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Canada Labour Code Amendments

http://lancasterhouse.com/

You may be aware that just a couple of months ago, specifically on June 22, 2017, Bill C-44, the Budget Implementation Act, 2017, No.1 received Royal Assent.

This Act makes a number of changes to the Canada Labour Code (the “Code”) that will impact federally regulated employers, both unionized and non-unionized.

Please note that a date has not yet been set for when these changes will become law.

A ‘GENERAL GUIDELINE’ TO THE PROPOSED KEY AMENDMENTS:

Administrative Monetary Penalties (Added to the Code)

  • Employers can now be penalized for up to and including $250,000 under this section, and any officer, director, agent, or any other person with managerial or supervisory roles can be held liable for the penalty.
  • The specific Code provisions to which these penalties apply, and therefore the specific penalties will be identified in future Regulations.
  • The deadline for issuing a Notice of Violation is 2 years from the day on which the subject-matter of the violation arose.

Complaints Relating to Reprisals (Added to the Code)

  • Employees will be able to file a complaint with the Canada Industrial Relations Board (the “CIRB”) if they believe that the employer has taken reprisals against them for making a complaint pursuant to Part III of the Code, providing information to the Minister, the CIRB, or an inspector in exercising their duties under Part III of the Code, OR testifying in a proceeding or inquiry pursuant to Part III of the Code.
  • Such reprisals include, among other things: dismissing, suspending, laying off or demoting the employee, or imposing a monetary burden or penalty on the employee.
  • The time period for filing a complaint of retaliation is 90 days.

Inspector Orders

  • The authority of inspectors has been expanded. Inspectors will now issue compliance orders if they find an employer has not complied with Code provisions on standard hours, wages, vacations, and holidays.

Internal Audit

  • The Minister of Labour could order an employer to conduct an internal audit of its books, payrolls, and other records to determine whether the employer is in compliance with the Code provisions on standard hours, wages, vacations, and holidays.
  • The Minister may order the audit report to contain any data that the Minister deems appropriate.
  • Once the audit is complete, employers must submit the audit report to the Minister.

Unjust Dismissal

  • Unjust dismissal complaints that are not settled will now be referred to the CIRB, instead of an adjudicator for determination.

Unpaid Leaves of Absence:

Employees with a Newborn or Adopted Child

  • Female employees will be permitted to begin their maternity leave up to 13 weeks before their due date, a 2week increase from the current 11 weeks.
  • Employees will be entitled to take an unpaid leave of absence of up to 63 weeks to care for newborn or adopted children, a big jump from the current 37 weeks.
  • The combined total of maternity and parental leave that one or two employees can take for the same birth or adoption will increase to 78 weeks, a considerable increase from the current 52 weeks.
  • The combined total of parental leave that two employees can take for the same birth or adoption will increase to 63 weeks from the current 37 weeks.

Employees with a Critically Ill Child or Family Member

  • The definition of those eligible to take a leave of absence to care for a critically ill child will be expanded beyond a parent to a family member of a critically ill child. The eligibility period (6 months of continuous employment) and length of absence (37 weeks) will remain the same.
  • Employees who have completed 6 months of continuous employment will be eligible for an unpaid leave of absence of up to 17 weeks to care for or support a critically ill adult family member.

Unpaid Wages Recovery

  • The period for recovering unpaid wages will be extended from 12 to 24 months.

Again, please keep in mind that a date has not yet been set for when these changes will become law.

Supporting Article Research Sources: Mondaq.com, Lawson Lundell LLP

Canada: More Changes Coming to the TFW Program

 

The federal government is looking to enhance the Temporary Foreign Worker Program (‘TFWP’) by bringing in new requirements for those employers looking to hire foreign workers.

Employers will be required to do more to recruit Canadians, mainly those who are typically under-represented in the workforce, such as youth, newcomers, women, Indigenous people, and people with disabilities.

The government intends to work with industry sectors that heavily use the program to create Canadian workforce development strategies in partnership with employers, organized labour, and different stakeholders.

“The changes we are making to the Temporary Foreign Worker Program will help ensure that Canadians have the first opportunity at available jobs, that vulnerable workers are protected, and that the Canadian economy can continue to grow and thrive,” said Patty Hajdu, Minister of Employment, Workforce Development, and Labour.

To meet its commitment to better protect vulnerable foreign workers, the government will also increase on-site inspections of places of work that employ foreign workers. The government will also work with community organizations devoted to protecting vulnerable foreign workers to make certain they are informed of their rights and protections once arriving in Canada.

Background

The Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities tabled its report, Temporary Foreign Worker Program, which outlined 21 recommendations last September.

At that point, the government took early action to respond to the report by:

  • Preserving the cap on the share of low-wage temporary foreign workers at 20% for employers that accessed the program prior to June 20, 2014, and at 10% for brand new users of the program;
  • Extending the cap for seasonal industries for as much as 180 days up to December 31, 2017;
  • Doing away with the 4-year cumulative duration “4-in, 4-out” rule, effective immediately;
  • Committing to further grow pathways to permanent residency so eligible applicants are able to contribute more fully to Canadian society; and
  • Requiring low-wage employers, where appropriate, to advertise to more than 1, and up to 4, under-represented groups in the workforce (inclusive of youth, people with disabilities, Indigenous people, and newcomers). Employers will be advised when these changes are to come into effect.

About 79,000 work permits issued by Immigration, Refugees, and Citizenship Canada became effective in 2016 through the TFWP. This is a reduction of 33.5% over the peak during the past 5 years, consistent with Employment and Social Development Canada.

 

Supporting Article Research Sources:

Canadian HR Reporter – Employment Law Today and Canadian Newswire

Alberta: Upcoming Workplace Laws Overhaul (Part 2 of 2)

…Continued from Alberta: Upcoming Workplace Laws Overhaul (Part 1 of 2)

The second and last part of this article focuses on the Labour Relations Code’ impending changes.

LABOUR RELATIONS CODE

Perhaps unsurprisingly, the areas of the Labour Code where the government is contemplating change is geared to enhancing union powers and increasing union involvement in Alberta. Also, any changes are likely to lead to a more robust Alberta Labour Relations Board, in concert with broader legislative changes that will impact all unionized workplaces.

In particular, the government is considering whether to:

  • Mandate a “Rand formula” in collective agreements, which involves the obligatory payment of union dues regardless of a worker’s status (i.e., workers would no longer be able to opt-out of a union and avoid paying union dues where they benefit from the collective agreement);
  • Change the Labour Code’s definition of “employer” and “employee”, which could bind more successor employers to collective agreements;
  • Give employees greater freedom in choosing, changing, or cancelling union representation (i.e., the introduction of a “card check” system);
  • Make certain unfair labour practice allegations are subject to a reverse onus provision, thereby putting the burden on the employer to contest an employee’s accusation;
  • Broaden the Board’s mandate to adjudicate a wider range of workplace disputes;
  • Augment the Board’s power, procedures, and remedial options; and
  • Undertake a general review of the Labour Code to see where Alberta’s labour laws depart from the Canadian mainstream (in a way which the government determines is “without benefit”).

CONCLUSION

Given that the legislation is due for an update, and the NDP’ orientation towards improved rights for workers and unions, it seems likely that the changes to the Employment Standards and the Labour Code can occur throughout this term of the NDP’s mandate.

The government says these changes are necessary to offer a “family-friendly workplace”. What remains unclear, though, is the extent to which these changes can co-exist with a “business-friendly workplace” since many of the proposed changes tip heavily for employees and unions, while Alberta’s economy remains in a fragile state.

 

Article Research Sources: Blake, Cassels & Graydon LLP, Mondaq

Alberta: Upcoming Workplace Laws Overhaul (Part 1 of 2)

Alberta’s NDP Government to shake up the province’s workplace legislation.

The Employment Standards Code (Employment Standards) and the Labour Relations Code (Labour Code) will be the subject of a brief public consultation (closing April 18, 2017) before the government assumes its review, and rolls out the significant primary changes to Alberta’s workplace laws not seen in decades.

As a matter of interest, Alberta’s workplace laws have remained the same for close to 30 years, while apparently provincial governments elsewhere in Canada have responded more quickly and readily to the changing dynamics of what the face of a modern workforce could, or should be.

Employment Standards and the Labour Code govern everything with respect to the employment relationship in Alberta’s workplaces (outside of federally regulated firms, and in addition to human rights and privacy legislation). The Labour Code regulates union work, and Employment Standards covers the non-union labour market.

The government says the forthcoming changes to Alberta’s workplace laws are actually “modest” and “not a full-scale review“. Still, many employers are most concerned about the consequences, particularly given the NDP’s policies for extending workers’ benefits, in addition to its long-standing union ties.

EMPLOYMENT STANDARDS

Employment Standards sets the minimum standards to which employers must adhere, including standards for hours of work and overtime requirements, vacation, maternity and paternity leave, general holidays and termination.

The government has not specified the precise changes it intends to make to Employment Standards. However, based upon a review of the government’s online consultation, employers may see the introduction of all, or any, of the following:

  • An increase in protected leaves (i.e., maternity, parental and compassionate care) and a reduction of employee tenure to realize eligibility for such leaves;
  • The creation of new unpaid protected leaves for personal short-term illness or injury, personal emergencies, and family responsibilities;
  • Changes to align protected leaves with the federal employment insurance program;
  • An increase in the banked overtime rate from 1:1 to 1:1.5 (i.e., employees can receive 1.5 hours of time off for each 1 hour of overtime banked);
  • Changes to the calculation of all compressed work week arrangements;
  • Stricter requirements on employers to give a mandatory paid or unpaid 30-minute break to employees for each five consecutive hours of work;
  • An increase in the instances that employees are entitled to general and Stat holiday pay;
  • Changes to the calculation of employee’s average daily wage;
  • New deductions from employee wages wherever the employee agrees to such deductions and receives a direct benefit in return (i.e., health and insurance packages, pay advances, meals, and lodging);
  • An increase in the opportunities for youth between 13 and 15 to gain employment;
  • New requirements on employers to notify the Minster of Labour when undertaking a group termination of 50 or more employees at one site within a four-week period (i.e., possibly including a notification to the affected employees and unions, not just the Minister); and
  • Enhanced tools for the government to enforce Employment Standards legislation, including the introduction of administrative and progressive penalties, increased fines, greater authority for employment standards officers, and publicly posting firm names that fail to satisfy judgments, or prove ongoing non-compliance.

 Please continue to read Part 2 here. Thank You!

Article Research Sources: Blake, Cassels & Graydon LLP, Mondaq

Canada: Employers Right to Rescind Job Offers

reject-rescind-offer

 

Employment law in the Alberta region, as well as other areas of Canada, is large in scope. However, in any legal field, there are areas that may be a bit hazy.

While the law clearly states what employers can and cannot do in terms of employment, the time leading up to employment can be one of these hazy, gray areas.

Once an employer extends a job offer, the potential new employee has to take certain actions, such as preparing a notice of resignation to his or her current employer. He or she may also make more extravagant purchases than normal to celebrate the new role, and the anticipation of earning more money. If the job offer is then rescinded, this potential new employee may discover that he or she is in much hot water.

Even though this area of employment law may not be 100% clear, there are a couple of situations in which the employer can withdraw a job offer.

The first is with conditional job offers. For example, an employer offers you a job but tells you that the job hinges on positive reference checks or background checks. In such a case, if the employer receives a bad reference, or spots a problem during a background check, he or she can move to rescind the offer.

The second situation may arise if the potential employer discovers an applicant has not been truthful during his or her recruitment. For example, if an applicant misrepresents his or her education credentials or work history, the employer can legally choose to rescind the offer.

If you believe an employer has illegally rescinded a job offer, you should seek legal advice from an employment lawyer. This can help you determine if the job offer was rescinded in compliance with Alberta’s Employment Standards Code and Regulation.

 

Supporting Article Research Sources: Ridout Barron, HRM Canada, Mondaq

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Canada: Major Changes to our Employment Insurance Program (Part 2 of 2)

Introducing the Working While on Claim (‘WWC’) Pilot Project

This Pilot Project begins on August 7, 2016, and will run through to August 2018.

Every eligible EI claimant will be able to choose to keep 50¢ of their EI benefits for every dollar they earn, up to a maximum of 90% of the weekly insurable earnings used to calculate their EI benefit amount. Alternately, there is the option to revert to the rules of an earlier pilot that took effect back in 2012 (an earnings allowance of $75 or 40% of their weekly EI benefits).

The WWC pilot project will apply to you if you earn money while you are collecting any of the following types of EI benefits:

  • regular benefits
  • fishing benefits
  • parental benefits
  • compassionate care benefits
  • parents of critically ill children benefit

PLEASE NOTE: The WWC pilot project DOES NOT apply to claimants of maternity and sickness benefits or self-employed claimants.

Sample Calculation

Let’s say Christine’s weekly insurable earnings are $800. Her earnings threshold would therefore be $720 ($800 x .90 = $720).

If Christine is collecting EI benefits based on weekly insurable earnings of $800, EI would deduct the equivalent of 50% of her earnings from her benefits, until those earnings reached $720 (the earnings threshold).

Any monies Christine earns that is over the $720 earnings threshold would be deducted from her EI payments dollar for dollar.

To see more examples of how the earnings threshold works, please click here.

Canada: Major Changes to our Employment Insurance Program (Part 1 of 2)

 

 

 

 

 

In concert with my recent article on Supplemental EI Benefits for BC, I would like to share this informative post with you, which outlines our government’s continued commitment to improving Canada’s Employment Insurance System.

You will note that a number of these changes have already come into effect earlier this month, while some are slated for August 2016; such as the Working While on Claim Project.

The balance of the impending changes and enhancements to our EI system will not come into play until 2017; this includes reducing the EI waiting period from 2 weeks to 1 week, which is anticipated to begin on January 1, 2017.

New measures came into effect earlier this month that will permit the eligibility of more Canadians for EI support, simplify job-search rules for claimants, and offer more help for people heavily affected by the commodities sector downturn.

The changes include the elimination of EI eligibility requirements for new entrants and re-entrants. Instead of having to accumulate 910 hours of insurable employment, claimants newly entering the workforce, or returning after an absence of 2+ years must now meet the same eligibility requirements as other claimants in the economic region they live in. This measure will provide access to EI support for many new workers, including young Canadians, women, and new Canadians.

Simplification of Job search responsibilities for EI claimants. The rules enacted back in 2012 which forced unemployed persons to commute farther, or to take lower-paying jobs have been rescinded. The Government will also make sure that there are fair and flexible supports to help EI claimants train for and find new employment.

Extended EI BenefitsCanadians living in the identified EI economic regions hardest hit by the commodities downturn, having sustained a sharp increase in job losses have already begun to receive extended EI regular benefits.

Budget 2016 proposes to ‘extend EI regular benefits by 5 weeks to all eligible claimants, and to provide up to an additional 20 weeks of EI regular benefits to long-tenured workers, in the hardest hit EI economic regions NOTED BELOW ONLY:

  • Edmonton;
  • Southern Saskatchewan;
  • Southern Interior British Columbia;
  • Northern Alberta;
  • Nunavut;
  • Whitehorse;
  • Newfoundland/Labrador;
  • Sudbury;
  • Northern Manitoba;
  • Northern Saskatchewan;
  • Calgary;
  • Southern Alberta;
  • Northern British Columbia;
  • Northern Ontario; and
  • Saskatoon

All of the above three measures came into effect on July 3, 2016, and are part of the government’s plan to help Canada’s middle class, as well as those that are working hard to join it.

Other proposed measures to enhance our EI System over the course of our government’s mandate includes but is not limited to, the following areas:

  • Extending the Maximum Duration of Work-Sharing Agreements;
  • Investing in Skills and Training;
  • Enhancing Investments in Training;
  • Increasing the Northern Residents Deduction;
  • Supporting Flexible Work Arrangements;
  • Easier access to Compassionate Care Benefits; and
  • Flexibility in Parental Leave Benefits.

For a comprehensive list of proposed changes, stats, and further information on Canada’s impending EI enhancements, please visit the websites noted below.

 

Supporting Article Research Sources: Government of Canada, Employment Insurance Benefits

 

Part 2 of 2, ‘Working While on Claim’ will follow shortly

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Supplemental EI Benefits for BC? ~ SalaryGuard

‘The first supplemental employment insurance policy of its kind in Canada’.

SalaryGuard is gap unemployment insurance coverage providing the difference between your former weekly paycheck and Canadian benefits.

Coverage is available for up to 24 weeks in approved territories only.

The Canadian branch of the Great American Insurance Company is offering consumers coverage intended to supplement Federal Employment Insurance benefits through a brokerage; BFL Canada Risk and Insurance Services Inc., as announced earlier this year.

BFL is selling the Great American coverage, aptly named SalaryGuard in BC. Thankfully, other provinces will also be offered this coverage in the future.

SalaryGuard “will replace up to 55% of an employee’s former wages in the event of an involuntary job loss,” BFL Canada added.

 

EI SUPP SALARYGUARD 2016.jpg

For most people, the “basic rate” for calculating employment insurance benefits in Canada is 55% of their “average insurable weekly earnings”, up to a maximum amount, according to the Federal Government.

“As of January 1, 2016, the maximum yearly insurable earnings amount is $50,800, which means that you can receive a maximum amount of $537 per week.”

The maximum weekly benefit payable from SalaryGuard is based on an annual income of $310,000, which of course, eliminates a high percentage of EI recipients.

SalaryGuard is not available to those that had collected regular EI benefits within the past two years, and in order to be eligible, they must have been at their current employer for a minimum of six months.

“SalaryGuard provides gap coverage equal to the difference between 55% of the insured’s former weekly income, and the benefits provided by the government,” BFL stated.

Federal EI benefits are not available to employees that were dismissed for misconduct, or who voluntarily left their jobs without just cause.

However, they may be available to former employees who lost their jobs through no fault of their own, and who are actively seeking employment.

According to the SalaryGuard website, the qualifying criterion for BC EI Recipients is as follows:

  1. Continuous employment for a minimum of 18 months;
  2. Have not been served with a Notice of Termination;
  3. Have a yearly salary over $52,100;
  4. Presently employed on a full-time basis; and
  5. Must be a resident of British Columbia.

 

SalaryGuard is private employment insurance. In the event you lose your job and are eligible for Regular Employment Insurance Benefits, this supplemental employment insurance provides cash when you need it the most.

 

Supporting Article Research Sources: SalaryGuard, Canadian Underwriter, BFL Canada

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Immigration News: Canadian Electronic Travel Authorization (eTA) Coming March 2016

ETA-video-en-xsm

Beginning March 15, 2016, visa-exempt foreign nationals who fly to or transit through Canada will need an Electronic Travel Authorization (eTA).

This new eTA requirement seemingly exists because of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan, which requires that Canada and the United States establish a united approach within the screening of visa-exempt foreign nationals before they travel by air to either nation. Additionally, amendments made to the Immigration and Refugee Protection Regulations has stimulated this new eTA requirement, which will be in effect as of March 15, 2016.

WHO REQUIRES AN ETA?

Subject to the exceptions listed below, all visa-exempt foreign nationals who fly to or transit through Canada would need an eTA. A listing of visa-exempt countries whose citizens will require an eTA can be found at the Citizenship and Immigration Canada (CIC) website.

Notably, citizens of the United States do not need an eTA or a visa to fly to or transit through Canada; however, all lawful permanent residents of the US must obtain an eTA once traveling to or through Canada by air.

Certain people are also exempt from the eTA requirements, and includes some, but not all, transportation crew members, accredited diplomats, members of the Royal Family including Her Majesty Queen Elizabeth II naturally, and certain other people traveling through Canada on the way to a final destination, such as:

  • a foreign national wanting to transit through Canada as a passenger on a flight scheduled to stop in Canada for the sole purpose of refueling and: (i) they are in possession of the documents required to enter the US, and their flight is bound for that country, or (ii) they were lawfully admitted to the US, and their flight originated therein; and
  • a foreign national wanting to transit through Canada as a passenger on a flight that, owing to an emergency or other unforeseen circumstance, is forced to make an unscheduled stop in Canada; and
  • a foreign national who seeks to transit through Canada as a passenger on a flight if the foreign national: (i) is transported by a commercial transporter and there is a memorandum of understanding (MOU) in effect between the Minister and the commercial transporter concerning the transit of passengers through Canada without a Canadian visa, (ii) holds a passport or travel document that was issued by the country of origin for the foreign national as a citizen, and that particular country is listed in the MOU, and (iii) is in possession of any visa requirements to enter the country of destination.

HOW TO APPLY

As its name implies, applying for and getting an eTA will conveniently be handled on-line. A person should log into this link on the CIC website, complete the application form, and pay a modest $7.00 processing fee.

Travelers that apply for the eTA on-line will receive a confirmation email from CIC indicating the standing of their application. The person is not required to print the eTA status confirmation. because the eTA will be automatically linked to their passport.

An eTA will be valid for 5 years from the issued date, or until the traveler’s passport (or another travel document) expires, whichever comes first. The eTA could even be canceled by an appropriate immigration officer sooner, if the officer determines that the traveler is, in fact, inadmissible.

Visa-exempt foreign nationals who file an application for either a Canadian work permit or study permit will automatically be considered for an eTA, and are not required to submit a separate application.

In terms of processing time, CIC anticipates that most travelers should receive a confirmation of their status within a few minutes. However, CIC notes that some applications may require a little more time to process. It is also quite likely, in very few cases, that CIC might ask for more information from the traveler before their application can be approved.

It is important to make it clear here that having an eTA does not essentially grant or guarantee entry into Canada. As always, that determination is left to the examining immigration officer attending the port of entry.

 

Supporting Article Research Sources: Mondaq, McMillan LLP, Citizenship and Immigration Canada

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