In application for foreign workers, what is the substantially the same assessment? Are there any consequences if an employer fails the assessment?

June 8, 2011

Substantially the Same (STS) assessment is a new mechanism introduced in the recent amendments to the Immigration and Refugee Protection Regulations. The test determines whether employers of foreign workers have provided wages, working conditions and employment that were substantially the same as set out in the offer of employment to those foreign workers.

The assessment applies when an employer who had hired foreign workers requests extension of the labour market opinion (LMO) or work permit, or requests new foreign workers. The time period subject to the assessment is limited to two years prior to the date when the employer makes such requests.

There are serious consequences if an employer fails the STS assessment. Such employers will be subject to a two-year bar to the Temporary Foreign Worker Program. That is, they cannot renew LMOs or work permits for current foreign workers, nor can they apply for the coming of new foreign workers. In addition, these employers’ names will be published in an ineligible employer list on the Citizenship and Immigration Canada website.

Noncompliance can be justified under certain circumstances, however. Such circumstances include changes in federal/provincial law or changes to a collective agreement; dramatic changes in economic conditions; errors made by good faith employer in interpreting employment obligations, etc. Employers who successfully justify their noncompliance are exempt from the negative consequences of the assessment.

Hiring a foreign worker is no longer simple as it used to be. Employers are encouraged to seek professional help, especially when they encounter difficulties in dealing with Service Canada and/or Citizenship Immigration Canada.

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