Can HR Professionals Provide Immigration Advice?

by Reis Pagtakhan, Aikins Law
Over the last twenty years, the number of temporary foreign workers entering Canada’s work force has increased dramatically. In 1995, there were over 52,000 temporary foreign workers in Canada. By 2014, that number had grown to about 360,000 temporary foreign workers.

As a result, HR professionals are increasingly being asked to provide advice on immigration approaches and strategies by their temporary foreign worker employees. While the temptation is to always be helpful, there are very restrictive federal laws outlining what immigration advice HR professionals can and cannot provide. So, where is the line drawn?

Under the Immigration and Refugee Protection Act, it is illegal for anyone to receive compensation for providing immigration advice unless the person providing immigration advice is a lawyer, licensed immigration consultant, articling student-at-law, or an individual designated by the federal government.

If a person is not being paid for immigration advice, that person is not restricted from providing immigration advice.

Can HR professionals paid by companies provide immigration advice since they are not being directly paid by the employee?

Most HR professionals believe that since they are being paid by their company and not by the employee, they can provide immigration advice without any issue.

Unfortunately, the way that the law is worded is that anyone who "directly or indirectly" receives "consideration" in exchange for providing immigration advice must be approved to do so under the law.

In the legal context, receiving “consideration” encompasses not only the payment of money but the receipt of any good or service. Since HR professionals are paid a salary by their company, the government considers that HR professionals are being “indirectly” compensated for any immigration advice they provide to company employees.

In an attempt to be clear, Immigration, Refugees and Citizenship Canada specifically indicates on their website that, with respect to immigration applications for new temporary foreign worker recruits, "HR personnel cannot complete application forms, such as work permits and these applications, on behalf of workers recruited."

What immigration advice can HR professionals provide?

While HR professionals cannot provide immigration advice to company employees, the federal government has published a list of “Stakeholder do’s and don’ts” to better communicate what sort of immigration advice can be provided. Under this list, HR professionals and others are only permitted to do the following:

1. Direct individuals to Immigration, Refugees and Citizenship Canada 's website to find information on citizenship and immigration programs, application forms, or authorized representatives;
2. Provide translation, travel arrangement and career services;
3. Conduct job interviews; and
4. Complete Labour Market Impact Assessment application forms on behalf of their employer.

In Immigration, Refugees and Citizenship Canada’s manuals, certain other additional permitted functions performed by HR professionals and recruiters are set out. These include: scouting for jobs, making offers of employment, and reviewing job applications.

What immigration advice are HR professionals not allowed to provide?

While the list of “do’s” is short, the list of "don'ts" is larger. Under this list, HR professionals and others are not permitted to do the following: 

1. Explain and/or advise on a person's immigration or citizenship options;
2. Guide a person on how to select the best immigration stream;
3. Complete and/or submit immigration or citizenship forms on a person's behalf;
4. Communicate with Immigration, Refugees and Citizenship Canada or the Canada Border Services Agency on a person's behalf (with the exception of providing translation services);
5. Represent individuals in an immigration or citizenship application of proceeding; and
6. Advertise that they can provide immigration or citizenship advice for a fee.

This combination of do’s and don’ts effectively prevents HR professionals from providing any meaningful immigration advice to employees. Unfortunately, in order to be safe, the best solution for HR professionals is to not provide any advice on immigration or citizenship questions.

What are the penalties for providing immigration advice without authorization? 

Under the Act, if any person provides immigration advice without authorization, the maximum penalty is a fine of up to $20,000 or a term of imprisonment of up to two years. As a result, HR professionals should be very careful when asked to give immigration advice.

Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg. Connect with him on LinkedIn , follow him on Twitter @ImmigrationReis, or contact him directly at 204–957-4640 or rrp@aikins.com