What should we do???

[cjanssen]

Thanks in advance for the help/advice. I am an employer who had a foreign worker as a supervisor and we just received a negative LMIA since our job postings were 15 cents off of the median (Lawyer advised us improperly). I believe we now need to take her off payroll immediately; but that puts our business in a bad position and we will likely have to layoff a few employees until we can find a replacement. I have listed the timeline of events below with a few questions.

Timeline of Events
• Employee started working on a part-time basis during September 2015 with an IEC open work permit (Average 20 hours per week)
• Employee started working on a full-time basis during April 2015 as a supervisor
• Employer submitted a LMIA on August 2nd for employee, allowing her to continue to work until a decision was made. At the same time the employee also applied a work permit extension tied to her employer
• The employer received a negative LMIA on November 27th 2015 with the letter dated November 13th 2015
• Employee will be taken off of payroll November 30th 2015

Questions
• Is there any grace period here to find a replacement or does she have to leave the company immediately?
• Are we able to give severance pay to help her with the transition?
• If the employee assisted in the transition/training of new team members as a volunteer, would this be illegal? If so, what are the consequences and how likely will any repercussions happen?

Thanks!

 

[scylla]

1) No grace period. The employee must leave the company immediately and stop working immediately.
2) Yes.
3) This will be illegal work even if it's unpaid. It could jeopardize future work permit approvals for that individual or even result in removal from Canada. It could also jeopardize future LMIA approvals for the company.

 

[Lammawitch]

4) An IEC can not be extended. I hope the employee stopped working as soon as her IEC expired & if still in Canada, applied to change her status to visitor.

 

[cjanssen]

The IEC was not extended. She applied for a closed work permit with the company at the same time the company applied for a LMIA which ultimately allowed her to continue to work until a decision was made. There are not too many people who are aware that this is a possibility, but I have checked with multiple lawyers/forums to ensure it was possible. If you have heard otherwise, please send me a link!

 

[Lammawitch]

We shall have to agree to disagree: the process you describe just doesn't fit with any CIC process. To apply for a closed work permit, the applicant needs to have received a positive LMIA. A WP application before reception of an LMIA would be refused.

 

[cjanssen]

I have asked our lawyer for the exact procedure that was taken and will copy & paste her response.

 

[scylla]

I have asked our lawyer for the exact procedure that was taken and will copy & paste her response.

I missed that she was on an IEC when I responded the first time. Lammawitch is correct. Your laywer is wrong. (Lawyers unfortunately get this wrong all of the time and falsely assume the same rules apply to IECs as do to all other classes of work permits.)

IECs cannot be extended and do not benefit from implied status. There are people on this forum who have in fact run into big issue specifically because they thought IECs benefited from implied status. CIC has confirmed in writing that they don't. Legally, she should have stopped working as soon as the IEC expired. Any work completed after the IEC expired was technically illegally (and can't be claimed as work experience for any immigration program).

I don't have time now - but later will try to find the threads where individuals ran into issued with IECs not qualifying for implied status. The worst case was someone who had actually been approved for a PR visa but was then refused landing for working illegally (she thought she had implied status because she applied for a new work permit before her IEC expired - CIC made it crysal clear that she did not have implied status and had in fact been working illegally for months). Unfortunately we don't know what happened with this individual's case since she never came back to the forum to tell us. Last we heard, her case was being investigated due to the illegal work and it was unknown if she was going to be granted PR or not.

Long story short - it's 100% certainly IECs don't benefit from implied status. However the vast majority of people aren't caught or penalized for the illegal work.

For this case she should apply to restore her status and change her status to visitor. Most likely there will be zero impact from having worked illegally (just don't claim this as work experience for any Canadian immigration program).

 

[cjanssen]

This is what the lawyer stated so I am guessing she is wrong...

"As long as the work permit is filed before the date of expiration she is in implied status until a decision on that extension is made by Citizenship and Immigration Canada. On November 26, 2015 you received the decision on the work permit and it was rejected. So she can no longer work in implied status."

She has now been taken off of payroll so I hope there is no problems moving forward. She is now filling out a common-law sponsorship so should she stay away from stating she worked here the last 3-4 months? When she is filing a tax return in 2016 will she be caught? Will there be any repercussions on the business?

One last thing, should she wait for the restoration approval as a visitor before applying for common-law or can she do them both around the same time.

Thanks for all the help and advice, I am very disappointed I have been informed improperly.

 

[y-axisoverseas]

I see that this is a concern & you want immediate resolution. I would recommend you to consult an Immigration Lawyer to look for an alternate option.
Also, based on the inputs here are the answers for the questions listed above:
(i) As much as I would like to say “yes” however there is no grace period.
(ii) Yes, that’s completely employer’s discretion as per the Canadian Labour Law.
(iii) It’s not suggested to include the mentioned employee for any such transition which could result in employee & employer being persecuted based on the Labour Law.
You could still approach the authority (CIC), explaining the situation about the business & the impact of the mentioned employee leaving the organization & overall. If CIC agrees to the same they might consider your appeal.