II. Who are Temporary Foreign Workers?

Temporary foreign workers are non-citizen individuals admitted to work in Canada for time-limited periods through immigration permits issued under the federal Immigration and Refugee Protection Act (IRPA).[xiii] Some of these workers are highly skilled, specialized workers employed on short-term work contracts, while others are lower-skilled workers who fill temporary or seasonal positions. Some of these lower-skilled individuals will work long-term in Canada under consecutive time-limited permits.

Officially, TFWPs are designed to address temporary or periodic labour shortages that result from insufficient supply in the domestic labour market. These supply shortages ostensibly derive either from the cyclical or season nature of some sectors, such as agriculture, or from systemic barriers to permanent immigration, such as backlogs in processing applications for permanent resident status and complications arising from the economic selection criteria for new immigrants. Temporary foreign workers are not, according to federal government policy, intended to fill “permanent” labour market gaps or to provide a long-term solution for present challenges in the immigration system.[xiv]

But it has become increasingly obvious that Canada’s heavy reliance on foreign labour belies the “temporary” nature of many foreign worker programs. The annual inflow of temporary foreign workers has accelerated in recent years, along with an increasing “stock” of these workers who continue to reside in Canada on multi-year or renewed work permits. The number of temporary foreign workers coming to Canada annually has nearly doubled in past decade, reaching a total annual inflow of 192,519 workers in 2008.[xv] At least 65,801 of these were lower-skilled workers – almost a fourfold increased since 1999.[xvi] This inflow, combined with the number of temporary foreign workers still present in 2008, resulted in a total of 251,235 workers living in Canada with temporary status at the end of that year, 96,644 of whom were lower-skilled workers.[xvii]

Ontario received the highest number of temporary foreign workers of any province in 2008, at a total of 66,634 workers, although the proportion of lower-skilled workers is unknown.[xviii] The province’s inflow of foreign workers has climbed by 26% since 1999, a relatively modest increase when compared to provinces such as Alberta (287%) and British Columbia (168%).[xix] There were over 91,000 temporary foreign workers living in Ontario at the end of 2008.[xx] As a proportion of total provincial temporary and permanent residents, only in Alberta and British Columbia do temporary foreign workers compose more that 1% of the total population.[xxi]

A network of bureaucracies has evolved to administer this foreign labour regime at the national level. The federal government retains primary jurisdiction over the entry and subsequent repatriation of foreign workers, although some of these responsibilities have been devolved to provincial governments in recent years, as discussed in Part III, below.[xxii] Federal administrative roles are shared Human Resources and Skills Development Canada (HRSDC) and Citizenship and Immigration (CIC). Employers seeking to hire a foreign worker apply to HRSDC for a Labour Market Opinion (LMO), which evaluates the likely impact of hiring these individuals on the Canadian labour market within a particular sector. LMOs take into account the foreign worker’s expected occupation while in Canada, the wages and working conditions offered to workers by the employer in the terms of employment, the employer’s advertisement and recruitment efforts, associated labour market benefit, and any external consultations with organized labour regarding effects on current labour disputes.[xxiii] An LMO is then provided to CIC, the ministry ultimately responsible for issuing work permits to temporary workers pursuant to the IRPA.[xxiv] There are several exemptions from the LMO requirement available to employers in certain occupations, such that a significant proportion of foreign workers who actually enter Canada as temporary workers will do so outside of the regular LMO process.[xxv]

Several TFWP streams have emerged over time, each with their own set of employer requirements and each granting different entitlements to workers. These streams include specialized programs for academics, film and entertainment workers, information technology workers, seasonal agricultural workers, live-in caregivers, and oils sands construction workers in Alberta. Most significantly for the PNPs, the federal government also continues to operate a rapidly expanding “pilot project” for occupations requiring lower levels of formal training as a general program stream to facilitate the entry of the lower-skilled workers who are in growing demand in some regions and industries.[xxvi] The experimental status of this project, however, is questionable. By the time the first formal evaluation of the so-called pilot program is completed by CIC in 2012, it will have been in operation for well over ten years. In light of its longevity and the large increases in the number of lower-skilled workers entering Canada through this stream in recent years, it is likely more accurate to characterize the program as a permanent and continuously expanding entity.

As a general rule, foreign workers can work in Canada for a maximum of 24 months under a single temporary visa, with the possibility of renewal upon reapplication to CIC,[xxvii] however evidence suggests that at least some of these individuals work for extended periods in a single employment position by renewing their permits for successive periods.[xxviii] New amendments to the Immigrant and Refugee Protection Regulations (IRPR) proposed by the federal government in October 2009 will severely truncate foreign individuals’ abilities to remain in Canada as serial temporary workers. The proposed new “four year and out” rule will limit workers to a cumulative period of 4 years of employment in Canada, after which time they must leave the country for a minimum period of 6 years. According to the federal government, these regulatory changes reinforce its official stance that TFWPs are designed to address temporary labour shortages, and not to facilitate the use of foreign workers to fill permanent labour market gaps. Moreover, the federal government has said that the proposed amendments are meant to “encourage the use of appropriate programs and pathways to permanent residence where available.”[xxix] For lower-skilled foreign workers, the only available pathways to permanent residency, where they exist at all, are through existing PNP streams. The proposed IRPR amendments may therefore put pressure on provincial governments to increase reliance on their PNPs, and/or cause the federal government to evaluate alternative pathways to permanent residency for lower-skilled workers. Without significant changes to these institutions, or the design of alternatives, the new “four year and out” rule threatens to compound the vulnerable positions of lower-skilled individuals by reinforcing their temporary status and possibly driving them into the informal economy as non-status workers.[xxx]

2.1         Significance of Workers’ Temporary Status

Foreign workers are considered employees within provincial regulatory power while they reside in Canada, and they acquire the formal rights and obligations of domestic workers, including minimum employment standards, occupational health and safety standards, access to the labour relations regime, and workers compensation.[xxxi] But large gaps exist in practice between formal provincial regulation and the realities faced by these workers. In some provinces where foreign workers’ situations have been studied in the greatest detail, flagrant abuses of statutory employment protections are evident on a broad scale. In Alberta, for example, 60% of restaurants employing foreign workers were found to be in contravention of that province’s Employment Standards Code.[xxxii]

Many of the reasons behind these outcomes for foreign workers have been addressed in detail elsewhere. A main emphasis of recent scholarship has been to draw connections between individuals’ status as temporary workers and their various employment-related insecurities.  It has become increasingly clear that an employer’s broad authority to effectively “repatriate” foreign workers skews the balance of power within employment relationships so far in the employer’s favour that workers have nearly absolute disincentives to access even the minimum employment protections available to them. For example, foreign workers are highly unlikely to file employment standards claims, and since most provincial standards regimes are complaints-based systems, a lack of proactive monitoring and enforcement exacerbates existing power differentials between employers and employees, and effectively prevents temporary foreign workers from accessing the system altogether. Moreover, even where foreign workers intend to follow through on claims to vindicate their rights, they are normally back in their home countries before their cases can be adjudicated and as a result are cut off from effective remedies.  

While undeniably valid, this emphasis on foreign workers’ temporary status as a root cause of workers’ employment-related insecurities reinforces the assumption that PNPs provide the best, or even an adequate means to address these problems over the long-term. A main purpose in evaluating the PNPs in Part IV, below, is to dispel this assumption to a certain extent, by focusing on the continuing power imbalances perpetuated by the nomination process in spite of the fact that workers formally enter a pathway to permanent residency designed to help them shed their temporary status.

2.2         Race and Gender Dimensions

The race and gender dimensions of TFWPs in Canada have been increasingly well documented. According to Judy Fudge and Fiona MacPhail:[xxxiii]

Researchers who have examined the limited data concerning the source countries for the TFWP have remarked upon the racialized nature of the low-skilled part of the program. The proportion of temporary foreign workers from Asia and the Pacific has increased, while those from Europe and the United States have dropped. However, more than two-thirds of the temporary migrants in the managerial, professional, and skilled categories originated from Europe and the United States in 2005. By contrast, 59% of the workers from Asia and the Pacific and 85% from the Americas (with the exception of the United States) have low-skilled positions.

Likewise, authors have pointed to the gendered nature of TFWPs, with a focus on programs for agriculture and live-in caregivers, and have emphasized the ways in which racialization, gender and temporary residency status intersect to produce specific forms of disadvantage for these workers.[xxxiv] A full exploration of these dimensions is beyond the scope of this paper, but an important lesson to draw from this research, which I return to in Part IV, below, is that because TFWPs are the direct antecedents to PNPs in all jurisdictions that admit lower-skilled workers, these same aspects of racialization and gender will inevitably carry over to the nominee programs and create key challenges in several areas of program design.

2.3         The Equality Rationale for Permanent Residency 

While this paper emphasizes the real outcomes that lower-skilled foreign workers do and are likely to experience through the PNPs, it is easy to overlook the strong motivating rationale of worker equality behind much of this discussion. The principle of equality in this context is normally interpreted to mean that lower-skilled temporary workers should have the same opportunities to access the benefits of permanent immigration as higher-skilled temporary workers. As long as these skilled workers are afforded pathways to permanency, similar options should be extended to lower-skilled workers. [xxxv] While higher-skilled workers might bring with them specialized knowledge, which is more valuable in wage terms on the labour market and for which there is greater competition internationally, the permanent employment positions currently being filled by many lower-skilled foreign workers are equally necessary for Canada’s economy to function successfully. Low-skilled workers also contribute in non-economic ways to societal development and community building. Allan Wise, a Settlement Facilitator in Manitoba, has explained that assessing access to permanent residency “in simple economic employment-oriented terms undermines the inherent value that our country has placed on the value of human capital. It should be recognized that mere technical expertise may enable the province’s economy to grow in relative terms; however, it does not serve the more cohesive and overarching societal need, that is, to create a community.”[xxxvi] Low-skilled workers are therefore equally deserving of the benefits that flow from their contributions to workplaces and communities. Permanent status affords a means for workers to capture the full scope of these entitlements, which are not fully realized in the wages and limited social-security benefits they receive while employed in Canada with temporary status.

With this underlying rationale in mind, and in light of existing challenges confronting temporary foreign workers, the next section attempts to map the legal and institutional structure of the PNPs in Canada. These programs vary widely between provinces, but this section draws out some of the general features of these programs relevant to their impact on lower-skilled foreign workers.