In the fast-paced world of corporate transactions, where mergers, acquisitions, and reorganizations are the norm, companies often overlook a critical aspect of their operations: immigration compliance.
The consequences of neglecting this vital aspect can be severe, with potential financial penalties of up to $1 million, and even a permanent ban on hiring foreign workers. Let's delve into the world of immigration due diligence, important questions to ask during corporate transactions, and best practices to safeguard your company's immigration compliance.
Immigration Due Diligence: Unveiling the Impact of Corporate Transactions
Corporate transactions come in various forms, from mergers and acquisitions to spin-offs and name changes. Each of these can have far-reaching implications for a company's ability to retain its foreign workforce and bring in new talent. To add to the complexity, some transactions may require disclosure to government authorities.
This is where immigration counsel plays a crucial role. They can assess the impact of a transaction and develop strategies that align with the post-transaction interests of all parties involved.
Essential Questions for Due Diligence
Before diving into any corporate transaction, comprehensive due diligence is a must. This includes specialized immigration due diligence to identify and mitigate risks associated with non-compliance. Here are some critical questions to consider during the due diligence process:
1. Are all foreign workers authorized to occupy their positions, and does the employer possess the necessary documentation to verify this?
2. What procedures are in place to systematically verify the immigration status of new employees and manage the expiry dates of work permits?
3. Will the transaction affect the qualifying relationship for foreign workers with Intra-Company Transfer work permits? If not, what alternative work permit options are available?
4. Has the employer ever faced compliance inspections under the Immigration and Refugee Protection Act, and if so, what were the outcomes?
5. What fees related to immigration processes have been agreed upon, and are there policies in place to ensure compliance with provincial and federal rules?
6. Are there any outstanding obligations under the Temporary Foreign Worker Program's Low Wage Stream?
7. How many foreign workers are on maintained status, and have any applied for work permit extensions that might be refused?
8. Are the employment conditions for foreign workers consistent with the terms outlined in their work permit applications?
9. Could the transaction negatively impact pending immigration applications that rely on a specific corporate structure or employment relationship?
Best Practices for Employers
Staying on top of immigration compliance is essential, as rules can change frequently. Employers should establish and maintain a robust internal immigration compliance program to mitigate legal risks. Here are some best practices to consider:
1. Stay informed about employer compliance rules, especially after recent changes.
2. Include specific language in employment agreements for non-Canadian citizens or permanent residents to address potential issues.
3. Understand which fees can and cannot be recovered from employees and establish clear internal policies.
4. Maintain records of employees' authorization to work in Canada and track work permit expiries.
5. Ensure equity in employment between foreign workers and Canadian citizens or permanent residents to avoid discrimination claims.
6. Be mindful of corporate reorganizations, as they can impact employees holding work permits and require creative immigration strategies.
Immigration compliance isn't just a checkbox; it's a vital part of any corporate transaction. Non-compliance can lead to significant legal and reputational consequences. Whether your company is involved in a corporate transaction or not, having a robust internal immigration compliance program is crucial. It's not just about following the rules; it's about protecting your business and its employees in an ever-evolving immigration landscape.
A Future of Simplified Recruitment: Our value added
Canada is ccommitted to addressing labor shortages and makes foreign worker recruitment accessible to companies all across the country. As advocates for both employers and foreign workers, we at Yanique Russell Law are here to ensure a seamless recruitment process. Through our immigration expos, we have been able to curate a database of skilled and qualified workers who have expressed interest in becoming temporary foreign workers in Canada.
At Yanique Russell Law, we assist employers in creating and structuring companies, navigating immigration processes, understanding LMIA requirements, and capitalizing on opportunities to fill labor gaps. Contact us today to learn more about how we can help you leverage immigration laws to achieve your recruitment goals.