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HOPE FOR OUT-OF-STATUS CONSTRUCTION WORKERS?

Not-so-fun fact: there are an estimated 93,000 vacancies in the construction industry in Canada, according to the Canadian Construction Association.


And another not-so-fun fact: many of the estimated 1.3 million construction positions in Canada are held by people without valid immigration status.


It is therefore a smart policy move for the Canadian government to prioritize providing a pathway for permanent residence for all out-of-status construction workers. In the Greater Toronto Area (GTA), construction work is in high demand despite long-standing labour shortages, and there is a greater need to stabilize the construction workforce to meet GTA residents' housing and infrastructure needs.


On the human side, these undocumented workers remain in precarious situations while continuing to contribute to the construction sector and the Canadian economy. Many undocumented construction workers may be unaware of their employment rights or hesitate to exercise them and may not benefit from workplace regulations, such as health and safety inspections. They may fear detection, detainment and deportation. They may also be subject to abuse and exploitation by their employers due to their undocumented status. By regularizing their status, these workers can gain the work-related rights, privileges, and protections necessary for their well-being and security.


In 2019, Immigration, Refugees and Citizenship Canada (IRCC), in partnership with the Canadian Labour Congress (CLC), launched the Temporary Public Policy for Out-of-Status Construction Workers in the Greater Toronto Area (GTA). On January 2, 2020, the federal government implemented this permanent residence pilot program for 500 out-of-status workers in the construction industry. It was then updated in July 2021 through the Temporary Public Policy to Further Facilitate Access to Permanent Resident Status for Out-of-Status Construction Workers in the Greater Toronto Area (GTA).


In January, 2023, the number of spots in this program was doubled. That month, the CLC announced that it is working with IRCC to process at least another 500 applications for permanent residence for out-of-status construction workers in the GTA. The updated 2023 policy will have the CLC processing applications to 1,000 principal applicants, including those whose applications have already been previously approved by IRCC under the Temporary Public Policy for Out-of-Status Construction Workers and the Temporary Public Policy to Further Facilitate Access to Permanent Resident Status. This new initiative will be in effect until January 2, 2024, when the new public policy will conclude, or until the 1,000 principal applicants (plus their eligible family members) have been granted status.


To be eligible for permanent residence under this public policy, an individual must:


Have entered legally in Canada initially as a temporary resident;

  • Have been living in Canada continuously for at least five years on the date of their application;

  • Be working in Canada without status, and, in the past five years, have worked a minimum of 4,680 hours in an eligible occupation (for a complete list of eligible occupations, see Annex A of Guide 0124);

  • Have a family member living in Canada who is a Canadian citizen or permanent resident or a spouse or child in Canada;

  • Be referred by the Canadian Labour Congress; and

  • Be otherwise admissible to Canada, including no previous offences that would make them inadmissible to Canada other than overstaying and working without authorization.

People cannot apply under this policy if they or their family members have pending refugee claims or are unsuccessful asylum claimants. If family members are included in the application, they must also apply for a work permit, study permit, or a temporary resident permit (TRP). Family members not applying for a work or study permit must apply for a TRP and dependents who are not school-age must also apply for a TRP.


The program, therefore, is an important program both for a vital Canadian industry, and for vulnerable workers. However, it has substantial and curious limitations:


1) First, there is a regional limitation as it only applies to those in the GTA, including the City of Toronto, Durham Region, Halton Region, Peel Region, and York Region. There appears to be no reason why the program could not be expanded to include all out-of-status construction workers nationwide.


2) Second, there is an overly lengthy and unnecessarily complicated application selection process, driven by a third party, namely the CLC. Applicants are referred to the CLC on a first-come, first-serve basis. The identification and referral of potential applicants under the public policy are reportedly carried out in an unbiased, fair and equitable manner. Applicants undergo thorough screening, including possible telephone interviews. Individuals must also meet all criteria established by IRCC and submit an application intake form to the CLC, who will then refer eligible applicants to IRCC for processing. While finalizing the permanent residency application, IRCC will give the worker a TRP and a work permit that allows the applicant to legally work in Canada. However, is also no formal appeal process for CLC's decision-making.


3) Third, the low cap on the number of out-of-status construction workers is problematic. According to the Government of Canada, 452 individuals have been accepted as permanent residents since the launch of the pilot in July 2019. Even though the federal government now allows 1,000 out-of-status construction workers to apply for permanent residency, a larger intake is needed.


4) The requirement to have a family member living in Canada is curious, and seems unnecessarily restrictive. How is this connected to the policy aim of supporting a vital industry, and assisting vulnerable workers? This requirement disadvantages individuals who do not have family members in Canada, even if they otherwise satisfy all other eligibility requirements.


5) Finally and more generally, many low-wage workers other than those in the construction industry are out of status and lack pathways to permanent residency. It is estimated that there are at least 500,000 undocumented residents in Canada, the majority of which came legally and eventually lost status because of issues with student visas, temporary work permits or asylum claims. This number reflects the growing problems surrounding Canada’s temporary immigration system. The federal government should strive to ensure that these same benefits are afforded to all out-of-status residents. The program should serve as a model to be expanded to include other essential workers, such as caregivers.


This Out-of-Status Construction worker initiative is a creative and timely measure to address labour shortages in skilled trades and the housing crisis. Though a significant step forward, it is hope that the program’s unnecessary restrictions will be eliminated, and that the federal government will move toward a broader permanent national strategy to regularize the undocumented population and streamline the process towards permanent residency for all migrants.


For more information, contact us at: reception@migrationlawgroup.com


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