Tuesday, January 19, 2010

Live-in Caregiver Program

According to Immigration Canada (CIC):

"Amendments to increase the flexibility and efficiency of the permanent residence component of the Live-In Caregiver Program (LCP)

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.

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.

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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