Vol. 144, No. 8 — April 14, 2010

Registration

SOR/2010-78 April 1, 2010

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2010-446 April 1, 2010

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations to be laid before each House of Parliament, substantially in the annexed form;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsections 5(1) and 14(2) and section 17 of the Immigration and Refugee Protection Act (see footnote c), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. Section 30 of the Immigration and Refugee Protection Regulations (see footnote 1) is amended by adding the following after subsection (2):

Exception

(2.1) A foreign national who has applied for permanent resident status and is a member of the live-in caregiver class is not required to submit to a medical examination under subsection (1).

2. (1) The portion of paragraph 113(1)(d) of the Regulations before subparagraph (i) is replaced by the following:

(d) they entered Canada as a live-in caregiver and for at least two of the four years immediately following their entry or, alternatively, for at least 3,900 hours during a period of not less than 22 months in those four years,

(2) Subsection 113(2) of the Regulations is replaced by the following:

Calculation

(2) For the purposes of paragraph (1)(d),

(a) the periods of two years and 3,900 hours may be in respect of more than one employer or household, but may not be in respect of more than one employer or household at a time; and

(b) the 3,900 hours are not to include more than 390 hours of overtime.

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Live-in Caregiver Program (LCP) is a stream of the Temporary Foreign Worker Program (TFWP) that facilitates qualified, low-skilled foreign workers entering Canada as live-in caregivers to care for children, elderly or disabled persons in the private home where the person being cared for resides, when there are not enough Canadians or permanent residents (PR) to fill available positions.

Employers must apply for and receive a positive or neutral labour market opinion (LMO) from Human Resources and Skills Development Canada (HRSDC)/Service Canada (SC). LMO applications from employers are reviewed by officers who consider, among other factors, whether the wages and working conditions are comparable to those offered to Canadians working in the occupation and if the foreign worker would be filling a labour shortage. Once their employer has a positive or neutral LMO, live-in caregivers can apply for a work permit. If they meet all the program criteria and satisfy additional criteria, including security and medical admissibility, they are issued a temporary work permit to work as a live-in caregiver in Canada.

Previously, after working as a live-in caregiver for two years within three years of their date of entry to Canada, LCP participants could apply from within Canada to become PRs. Currently, over 90% of foreign nationals who enter Canada as a live-in caregiver with a work permit apply for permanent residence through this stream, and of these applicants, 98% are successful.

Following engagement with stakeholders and live-in caregivers, various aspects of the program were raised, including those that are the subject of the regulatory amendments discussed in this document.

For example, some live-in caregivers have experienced difficulty in obtaining the required experience within three years due to protracted illness or other circumstances beyond their control, which could result in their ineligibility for permanent residence. Others identified that they have felt pressure to remain in unsatisfactory employment to avoid failing to meet this requirement. The Standing Committee on Citizenship and Immigration, in its May 2009 report entitled: Temporary Foreign Workers and Non-status Workers, recommended that the time limit to achieve the requisite work experience be extended from three to four years.

In addition, live-in caregivers and stakeholders noted that live-in caregiver’s overtime hours were not reflected in their work experience component for permanent residence.

Another issue that was raised during the recent round table and in the Standing Committee report is that of the second medical examination. Live-in caregivers had to undergo two medical examinations, one as part of a work permit application prior to entry to Canada as a temporary resident, and another as part of their application for permanent residence. Due to the differing assessments of temporary and permanent residency applications, or due to changes in health over time, it was possible for a live-in caregiver to be admitted as a temporary resident but denied as a PR. Though this situation is rare (average three cases per year), it could have unduly penalized live-in caregivers who have contributed to the Canadian economy. Had this requirement not been changed, these sorts of cases likely would have continued to arise from time to time.

To address these program issues, CIC has developed a multi-instrument approach combining administrative and regulatory changes. The former includes new employer-paid benefits to be identified in mandatory clauses in employment contracts and improved information products for live-in caregivers. The regulatory amendments to the LCP will facilitate the attainment of the employment requirement for permanent residence status by live-in caregivers, provide flexibility in the way the experience requirement for permanent residence is calculated, and will improve efficiencies in the medical examination process (and reduce costs for live-in caregivers) by eliminating the second medical examination.

Both administrative and regulatory changes will improve the LCP while maintaining the objective of the program to respond to labour market shortages. They will also contribute to the Immigration and Refugee Protection Act objective to protect the health and safety of Canadians. This multi-instrument approach would also complement proposed regulatory changes to the TFWP intended to improve program integrity that were pre-published in the Canada Gazette, on October 10, 2009. In particular, the LCP changes would complement the amendments related to a more rigorous assessment of the genuineness of offers of employment. They would also build upon the pre-published TFWP regulation that would make employers ineligible to access the TFWP for two years where the employer has been found, in the past, to have provided significantly different wages, working conditions and/or occupation than those initially offered to a TFW.

Description and rationale

1. Increase the time allowed to complete the employment requirement from three years to four years

One of the requirements to qualify for permanent residence under the LCP was completion of two years of employment as a live-in caregiver within three years of arrival in Canada.

Live-in caregivers will now have four years, rather than three years, to complete the employment requirement of the LCP.

This responds to concerns that some live-in caregivers have not been able to gain the required two years of employment within three years of arriving in Canada for reasons beyond their control, such as serious illness.

This regulatory amendment will apply, upon implementation, to all live-in caregivers, including those already in Canada, for whom a determination on permanent residence had not yet been made.

2. Allow an hours-based calculation of the employment requirement based on 3 900 hours within a minimum of 22 months

Live-in caregivers were previously required to complete two years of employment to qualify for permanent residence. The calculation of the two-year period is based on the start and end dates of employment, as outlined in the employment contract and termination/resignation documents.

Live-in caregivers will now have the option of selecting the current system for calculating the work requirement, or selecting a new hours-based calculation option of 3 900 hours of employment completed in a minimum of 22 months. A maximum of 10 % of their overtime hours can be counted towards that work requirement, to ensure this new option does not encourage caregivers and/or their employers to seek excessive overtime hours of work.

An hours-based calculation of the employment criterion more accurately reflects the actual accumulated work of some live-in caregivers, including overtime hours.

This amendment applies, upon implementation, to all live-in caregivers, including those already in Canada, for whom a determination on permanent residence had not yet been made.

3. Conduct assessment of medical examination at the work permit application stage with a long term view and eliminate mandatory medical examination at PR application stage

Live-in caregivers were previously required to undergo two medical examinations: one at the work permit/temporary residence stage before entering Canada and one at the PR application stage, after a minimum of two years of work experience in Canada. Although both examinations are similar in that they test for health conditions that would pose a risk to public health and safety in Canada or create an excessive demand on the health or social systems in Canada, the difference lay in the manner in which excessive demand costs are calculated — short-term for work permit/temporary residence applicants and long-term for permanent residence applicants.

Live-in caregivers will no longer be required to complete a medical examination when they apply for permanent residence. Instead, the medical examination completed to qualify for the initial work permit/temporary residence as a live-in caregiver will be assessed for excessive demand in anticipation of the applicant applying for permanent residence under the LCP rather than just for temporary residence. Based on the current costing thresholds used in the calculation of excessive demand, this change means that applicants who have a medical condition which would likely result in costs to the health or social systems in Canada of more than $5,000 per year over a five-year period (total of $25,000) would typically be deemed to be medically inadmissible due to excessive demand, at the work permit application stage.

By eliminating one of the two medical examinations and requiring that live-in caregivers, at the time of their application for a work permit, be assessed with a long term view in anticipation of their application for PR status under the LCP, administrative processes will be streamlined and cost savings for live-in caregivers should be achieved. The examination at the work permit/ temporary resident stage will continue to screen for infectious disease and the chance of contracting such a disease after arriving in Canada would be minimal.

CIC will assume a one-time cost of approximately $25,000 in order to update LCP information products concerning these changes. All live-in caregivers applying for permanent residence, a modest estimated average of 10 000 per year for the next 10 years, will save the estimated average cost of the second medical examination of $125, which will be a savings of approximately $8,000,000 over 10 years (noting that full savings won’t be reflected until 2012, as a small number of those live-in caregivers who arrive in Canada prior to the potential implementation of this new initiative will still need to undergo a medical examination at the permanent residence application stage).

The new medical assessment will apply to live-in caregivers whose applications for a temporary work permit and related medical examination have not already been reviewed. For some live-in caregivers already in Canada and whose medical examination results had been assessed as part of their work permit application (and therefore assessed on a short-term rather than long-term basis), results of the initial medical examination may be reassessed at the time of application for permanent residence, where concerns were identified at the initial examination stage. This means that a small number of live-in caregivers may have to undergo a medical examination as part of their permanent residence application process.

Consultation

In developing the proposed regulatory amendments, CIC engaged key stakeholders, including live-in caregivers, through the Minister’s round tables in Vancouver on March 29, 2009, and with the employer community on September 9, 2009. Similar round tables were also held in Toronto on April 26, 2009, and Montreal on May 25, 2009. The Department also participated in a consultation organized by the Maytree Foundation, with several stakeholder organizations, on May 29, 2009. In addition to these specific consultations, the Minister and the Department have received numerous letters, papers and other submissions recommending changes to the LCP. It was through these consultations that live-in caregivers expressed their concern with the current three year limitation, calculation of the eligibility requirement and medical examination requirements.

Furthermore, CIC has consulted with the Ministère de l’Immigration et des Communautés culturelles (MICC), and is coordinating these changes with the Government of Quebec processes. Both regulatory and administrative changes were discussed with provinces and territories at a federal-provincial immigration meeting in late November. No concerns were raised with respect to the proposed regulatory changes.

The proposed regulatory amendments were pre-published in the Canada Gazette, Part I, on December 19, 2009, for a 30-day comment period which ended on January 19, 2010. Comments were generally positive, and no major issues were raised. Most comments indicated the view that the proposed changes would help to protect caregivers as well as help them meet the requirements for permanent residence. Very few comments were critical of the regulatory proposals, and most of these appear to indicate a misunderstanding of how the changes would be implemented. While some respondents suggested that other changes also or alternately be considered, these options had already been considered as part of the policy development that resulted in the regulatory proposals. Following consideration by CIC, it was deemed that those changes would not have been in the best interests of Canadians and live-in caregivers and were therefore not pursued. Consequently, no changes were made to the proposed regulations following pre-publication.

Implementation, enforcement and service standards

Necessary implementation measures, including training of current staff, will be funded out of resources already allocated. An implementation Working Group comprised of CIC officials from all branches and divisions affected by these changes will be established to ensure all necessary procedures, systems support and communication tools will be in place prior to implementation. Standard evaluation of the implementation and impacts of the regulatory amendments will be conducted by program departments and is expected to be completed by 2013.

CIC is in the process of developing a phased-in approach for the establishment of service standards for various business lines. Processing times relating to applications for permanent residence from live-in caregivers are not anticipated to be impacted significantly by these regulatory changes, including the elimination of the second medical exam.

Contact

Maia Welbourne
Director
Temporary Resident Policy and Program Development Division
Citizenship and Immigration Canada
Jean Edmonds Tower South, 8th Floor
365 Laurier Avenue West
Ottawa, Ontario
K1A 1L1
Telephone: 613-957-0001
Fax: 613-954-0850
Email: Maia.Welbourne@cic.gc.ca

Footnote a
S.C. 2008, c. 3, s. 2

Footnote b
S.C. 2001, c. 27

Footnote c
S.C. 2001, c. 27

Footnote 1
SOR/2002-227

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