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Regulatory Impact Analysis Statement
Amendments to increase the flexibility and efficiency of the permanent residence component of the Live-In Caregiver Program (LCP)
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.
After working as a live-in caregiver for two years within three years of their date of entry to Canada, LCP participants may apply from within Canada to become PRs. Currently, over 90 percent 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, 98percent 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 proposed 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 are 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. Currently, live-in caregivers must 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 is possible that a live-in caregiver be admitted as a temporary resident but denied as a PR. Though this situation is rare (average 3 cases per year), it could unduly penalize live-in caregivers who have contributed to the Canadian economy. It is expected that if this requirement remains unchanged, these sorts of cases will continue to arise from time to time.
To address these program issues, CIC has recommended a multi-instrument approach combining administrative and regulatory changes. The former could include improved information products for live-in caregivers and mandatory clauses in employment contracts that stipulate how hours of work and overtime would be compensated and documented. The proposed regulatory amendments to the LCP would 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 would 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 would improve the LCP while maintaining the objective of the program to respond to labour market shortages. They would 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 proposed LCP changes would complement the proposed 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.
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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 is completion of two years of employment as a live-in caregiver within three years of arrival in Canada.
It is proposed that live-in caregivers would have four years, rather than three years, to complete the employment requirement of the LCP.
This would respond to concerns that some live-in caregivers are not 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 would 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 are currently 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.
It is proposed that live-in caregivers would 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 ten percent of their overtime hours could 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 would more accurately reflect the actual accumulated work of some live-in caregivers, including overtime hours.
This 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.
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 are currently 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 lies 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.
It is proposed that all live-in caregivers 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 would 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 would mean 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 would be streamlined and cost savings for live-in caregivers could be achieved. The examination at the work permit/temporary resident stage would continue to screen for infectious disease and the chance of contracting such a disease after arriving in Canada would be minimal.
CIC would 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 ten years, would save the estimated average cost of the second medical examination of $125, which would be a savings of approximately $8,000,000 over ten years (noting that full savings won’t be reflected until 2012, as some of those live-in caregivers who arrive in Canada prior to the potential implementation of this new initiative would still need to undergo a medical examination at the permanent residence application stage).
This change would 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 medically 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.
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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 begun to work to coordinate these potential changes with the Government of Quebec processes. Officials-level consultations with other provinces and territories are planned for late November.
Implementation, enforcement and service standards
Necessary implementation measures, including training of current staff, would 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 would be conducted by program departments and is expected to be completed by 2013.
Service standards relating to processing of applications for permanent residence from live-in caregivers are not anticipated to be largely affected by these regulatory changes. For example, processing times are not expected to be impacted significantly by the elimination of the second medical exam.