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w w w . C A N A D I A N L a w y e r m a g . c o m J U N E / J U L Y 2 0 1 8 53 program is for those who have "taken part in cultural activities or athletics at a world-class level or been self-employed in cultural activities or athletics." Seligman says she would also like to see the self-employed program extended to those with exceptional talent in areas other than just sports and culture. In 2015, the federal government reformed the temporary foreign work- er program, establishing a compliance regime that includes random, warrantless inspections. The audits are intended to ensure that employers have held true to their employment offers, not changing the salary, work conditions, location or posi- tion of the foreign worker. Partly because of the changes to the program, after reaching a peak of 199,218 in 2012, the number of temporary foreign workers approved by ESDC is on the decline with 90,211 approved in 2015, according to an ESDC report on the TFWP. The changes were meant to prevent the abuse and exploitation of foreign workers, such as when the caregivers hired by for- mer Liberal MP Ruby Dhalla to look after her mother said they were assigned tasks like cleaning offices and washing cars and made to work 16-hour days while hav- ing their passports kept from them. The program's changes partly stemmed from this scandal. But the new regime is creating unin- tended hassles for companies that use the federal foreign worker programs, say immigration lawyers. Not only are com- panies out of compliance if they pay a temporary foreign worker less than prom- ised, but companies cannot raise the sal- ary, change the duties or give bonuses to highly paid executives either. "If someone in the company comes over and they're fabulous and you want to give them a big raise, you can't do it," says Seligman. That is because there cannot be a "substantial change" in the employee's contract without filing a new work permit. "Protect vulnerable people. You don't need to protect the CEOs from being overpaid," she says. Bart says employers do not seem to understand how strict the new compli- ance regime is. "Ever since December of 2015, the changes are dramatic and employers still don't understand it," she says. "Good counsel will be very careful on how they address simple compliance filings . . . as well as ensuring that if there are any changes to the employees' working condi- tions, as settled in the employer compli- ance filing, that a new work permit is obtained and a new employer compliance document is filed in advance of the chang- es as opposed to after them," Bart says. Employers using the foreign worker programs are subject to random audits to ensure compliance. Hesse says he hears from employers that the random auditing feels like overkill. "Some employer complaints with respect to LMI assessments are that the government's gone to an extreme and it seems like everyone is being audited at all times," he says. "It seems that companies can be going through three or five audits for various locations all at the same time." Similar programs exist at the pro- vincial level. For example, the Ontario immigrant nominee program allows those with a minimum net worth of $1.5 million, or $800,000 outside the GTA, to make an investment ($1 million in Toronto and $500,000 outside of Toron- to) into a business of which they own a third and provided they demonstrate a viable business plan, to settle and be eli- gible for permanent residence in Canada. Most other provinces have similar programs with varied investment and net-worth requirements. For example, Nova Scotia only requires a net worth of $600,000 and investment of $150,000. The problem with the provincial nominee programs, says Seligman, is there are no small-business options. The required investment and net worth are too high, she says. "Whether they are serving employers' needs, I can only speak with respect to my clients and the answer would be a definitive no. There is no small-business program," she says. According to Seligman, another prob- lem is that those who receive the tem- porary work permit lose their and their family's status if they do not meet all the terms and conditions. It is a tough sell to get people to give up their business abroad and come to Canada with a busi- ness idea, if when the business does not work out, they lose everything, she says. "It seems to me that the only people benefiting from this are the consultants who are selling the program," she says. Peter Rekai of Rekai LLP in Toronto says few use the provincial programs. Many who intend to start and manage a business in Canada avoid the pro- vincial programs, hiring themselves as an employee and coming though the TFWP. "They're not straightforward. They involve people showing more money. They involve looking at assets. They involve evaluating businesses. They're not very useful," he says. "They're not highly used as a result, particularly in Ontario." Manitoba is revamping its provin- cial business immigration program, and Hesse says the changes represent a trend where provincial programs are becom- ing more similar. "The federal government is trying, I would say, to create similar programs in the various provinces. I think we're see- ing less variation in provincial business programs than before," Hesse says. The person applies, gets a work per- mit, begins operating their business and after a verification period they will be nominated by the province to get per- manent residence. A language require- ment has been added, the minimum net worth and investment requirement has increased and a deposit is no longer taken from the applicant. The Atlantic Immigration Pilot pro- gram is like the Manitoba program, and is a partnership between the fed- eral government and the four Atlantic provinces. Nurse, who practises in Halifax, says the program is working well and it is always good to have another option to work with, but employers are averse to some aspects of it, such as the language requirement and the responsibility to pay for language training for families. "I think it's a good integrity measure, but it's not something you know a Filipino cook with just a high school [diploma] is going to do proactively," he says. "Employers are very willing to support settlement overall, but they do get a little bit risk averse when it comes to signing off on unspecified financial commit- ment," he says.

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