This is an introductory piece to a series of articles where we will examine and explore abuse and fraud in employment-based immigration, one of the most serious and frequently reported issues that undermines public confidence in the immigration sector and the consultancy profession.
What is employment-based immigration abuse or fraud?
In general, it refers to situations where foreign nationals (i.e., migrant workers) are asked to pay large sums of money in exchange for an employment opportunity in Canada, which is then used to obtain either temporary or permanent resident (PR) status in Canada. While the payment for a job, a job offer, or recruitment-related fees are, in of themselves, illegal, in some instances, the misconduct can go further:
- the job or conditions do not match what was outlined to the government or the foreign national
- the job does not even exist
- coercion of the foreign national into accepting new conditions
- wage theft or deductions for recruitment costs
- misrepresenting PR pathways (time, costs, likelihood of success) to the foreign national
- threats, intimidation, and passport or other document confiscation
Employment-based immigration abuse or fraud consequences
First, it exploits the desperation and naïveté of certain clients – given their circumstances, they may not fully appreciate or understand the illegality of the practice and the risks they will face.
Second, it hurts the Canadian economy. By bringing in unqualified or unskilled workers or by misrepresenting their jobs, the Canadian labour shortages that prompted the need for specific Temporary Foreign Workers (TFWs), are left unaddressed.
Finally, this persistent abuse and fraud has a profound impact on Canadian immigration. Breaking the rules outlined in the relevant immigration and employment laws undermines the integrity of our immigration system and public confidence in immigration programs, immigrants, and the professionals who advise them.
Professional obligations and legislation
The process of hiring a foreign national should be employer-driven and licensees must exercise care when getting involved as an intermediary between the employer and foreign national. It may seem upon first glance that, because the foreign national is benefitting from the work arrangement, it would be reasonable to charge them for all the costs associated with recruiting/hiring and immigration. However, it is important to recognize that the work was primarily arranged to support Canadian employers who are in need of qualified workers, not just to support the foreign national in obtaining employment, their work permit, and possible PR. In other words, employment-based immigration is designed to mutually benefit both the employer as well as the foreign national.
A licensee must demonstrate law-abidance by complying with the relevant legislation and professional obligations when retained to assist with employment-based immigration, which may include but are not limited to:
- Labour Market Impact Assessments (LMIAs),
- LMIA-based work permits and PR,
- job-offer based Provincial Nominee Programs (PNPs), and
- registration with provincial bodies.
Licensees should educate employers they assist with recruitment on the process and fee responsibilities tied to hiring a foreign national to ensure the employers are compliant with the applicable legislation.
Licensees incur significant risks when engaging in employment-based immigration and recruitment. When confronted about their unethical and/or illegal recruitment dealings, licensees often assert that they were unaware of their professional and legal obligations. Whether true or not, this is not a defence accepted or tolerated by the College or other enforcement authorities. Taking the time to review and understand the relevant legislation
before engaging in such work, is critical to maintaining your professional obligations, your license to practice and your business.
A risky business
Those who take part in unprofessional, illegal or fraudulent conduct, including the so-called “job and LMIA selling”, would not only be subject to regulatory penalties by provincial and federal authorities and criminal sanctions, but also disciplinary measures from the College (including revocation).
A breach of any of the following may result in you losing your licence:
- Provincial employment (worker) legislation,
- the Immigration and Refugee Protection Regulations (IRPR) (specifically section 203)
- the College’s By-Law and Regulations
- the Code of Professional Conduct (particularly sections 15-17)
The Code of Professional Conduct outlines the standards of professional conduct that licensees must meet. Additionally, the College released a comprehensive Interpretation Guide that provides more in depth information on each section of the Code with examples of what can and cannot be done in your practice. The Interpretation Guide also discusses safeguards that can be followed to avoid potential problems, including those relating to foreign worker recruitment.
Subsequent articles will explore in more detail other key aspects of employment-based immigration abuse and fraud, the actual process by which it occurs, and how individuals engaging in these activities (licensees, employers, and foreign nationals) are affected financially, mentally, and emotionally.