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  • Article: ‘Substantially the Same’ – An Update. By Benjamin A. Kranc

    ‘Substantially the Same’ – An Update

    by


    One key issue that has arisen in Canadian immigration law since 2012 is the requirement that an employer be able to later demonstrate that it has provided ‘substantially the same’ (“STS”) wages and working conditions to foreign employees as those set out in the initial offer of employment (which formed the basis of an LMIA and/or work permit approval). Failure to adhere to STS standards could mean that the government would impose sanctions on the employer, including restricting the ability to hire further foreign workers. Effective December 1, new regulations will also bring about potential monetary penalties. (Please see http://www.kranclaw.com/2015/07/further-consequences-to-employers-for-immigration-non-compliance/).

    Any deviation of wages or working conditions for foreign workers from terms based on the initial offer which cross the (blurred) threshold from insubstantial to substantial could give rise to the determination of a violation. Since the introduction of STS, there has been confusion about dividing lines between substantial or insubstantial changes, or to put it another way, how to know when you cross the line.

    In terms of wages, though not prescribed in law per se, and though questioned at times, it appears at this time that a raise of not more than 2% per year will not be considered a change warranting STS concern.

    However, in terms of working conditions, there have been, since the inception of the STS concept, various indications/discussions/beliefs/etc. as to what constitutes a change which is more than insubstantial. In large part, this discussion centred around whether there was a significant change based on change of job duties alone, or whether a change of job duties that did not change the NOC category of the occupation meant that the conditions were indeed substantially the same (and no further action was necessary).

    After conferring with government officials, Kranc Associates has been advised that at this time, and notwithstanding prior pronouncements or beliefs, that a change of job duties which does not impact the NOC classification, does not give rise to a change that would take the employer out of the realm of ‘substantially the same’. That is, where job duties change, but they remain within the same NOC category, the terms of employment remain substantially the same. However, despite this information, Kranc Associates is further advised that a change of duties should in any event be advised to Service Canada (for LMIA-based work permits) or CIC as appropriate, to document the change. Such notification, on a case-by-case, fact specific, basis, may give rise to the need for a full amendment application, depending on the opinion of the officer.

    To summarize, the good news is that a change of duties without a change in NOC code (and without a significant change of salary) appears not to give rise to the need for consideration beyond STS, and as such, the employer will not be in violation of the requirements of the law. The less good news is that on a case-by-case basis, this may be considered differently, and therefore, no chances can be taken, and the appropriate government authorities should non-the-less be advised.

    The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

    This post originally appeared on Kranc Associates.. Reprinted with permission.


    About The Author

    Benjamin A. Kranc

    Benjamin A. Kranc is senior principal of Kranc Associates, a leading Canadian corporate immigration law firm. He has many years of experience assisting clients in connection with Canadian immigration and business issues. Ben is certified by the Law Society of Upper Canada as a Specialist in Immigration Law. He is also on the ‘Who’s Who Legal’ list of foremost practitioners in Canadian corporate immigration, as well as rated as AV Preeminent® in a Martindale-Hubbell peer review. Ben has spoken at numerous conferences, seminars, and information sessions – both for professional organizations and private groups – about issues in Canadian immigration law, and has also taught immigration law at Seneca College in Toronto. In addition, Ben has written extensively. He is the author of a leading text on Canadian immigration law entitled “North American Relocation Law” (Thomson Reuters) and contributing immigration author to the “The Human Resources Advisor” (First Reference Books). Ben can be contacted at (416) 977-7500 ext. 226, or bkranc@kranclaw.com.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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