Review of the Live-in Caregiver-Program

By Herbert Brownstein

The Live-in-Caregiver Program (LCP) was introduced by Citizenship and Immigration Canada on April 27, 1992, to replace the earlier Foreign Domestic Movement Program which had been in effect since 1981.

The program was last revised on June 28, 2002, with the introduction of the Immigration and Refugee Protection Regulations (IRPR). The definition of "live-in caregiver" is found in section 2 of IRPR: "… a person who resides in and provides child care senior home support care or care of the disabled without supervision in the private household in Canada where the person being cared for resides."

The purpose of the program is to meet a labour market demand for live-in caregivers in Canada, while providing an avenue for these workers to gain employment and eventually apply for permanent residence in Canada. The Canadian employer is required to obtain a confirmation of employment from the Human Resources and Skills Development Canada in order to engage the services of a foreign live-in caregiver.

The Canadian qualifications require a minimum of the equivalent of Canadian secondary school and a six-month training period with a rated assessment in a caregiving field, or, alternatively, include one year of prior work experience related to the job within the last three years. Further, the existence of an employment contract is required. (See section 112 IRPR).

In Quebec, based on the Canada-Quebec Accord, an employer must obtain a joint confirmation of employment. Further, Quebec Immigration has its own eligibility requirements for the live-in caregiver. A lack of harmonization of the regulations causes confusion in the operation of the program.

To make the program especially attractive to foreigners, a right to apply for permanent residence from within Canada was incorporated. Live-in caregivers who have completed 24 months of work within the 36-month period following their initial entry into Canada are eligible. (See s.113 IRPR)

The problem occurs when a worker arrives in Canada and is required to transfer their work permit to another employer. This often arises in situations involving long processing delays, as in the Philippines, where cases now take 18 to 24 months to process. (See CIC Manila website.)

Once in Canada, the caregiver can only work for the employer stipulated on the work permit, and if the job is no longer available, they must seek a new employer who is required to go through a confirmation process. It can take up to six months before the worker obtains a new work permit. The problem is particularly acute in Quebec, where a job offer confirmation is required from both Quebec Immigration and HRSDC, and where the worker is required to obtain a new CAQ from Quebec and a new work permit from CIC-Vegreville.

Reports indicate that in over 70 per cent of cases there is at least one transfer. Employers may terminate the work due to a loss of financial or social status, health, or other personal reasons. Transfers take too long, and if one factors in the time it takes to find a new position, the 24-in-36 mandatory requirement to apply for permanent residence becomes totally unreasonable.

When an applicant is unable to meet the 24-month requirement, the only option available is to apply for permanent residence based on humanitarian and compassionate grounds. (Section 25 IRPAM) However, this is entirely discretionary. Further, the caregiver cannot add her dependents to the application.

Section 113 IRPR leaves no room for discretion on the part of the immigration officer to deviate from the 24-in-36 month rule.

This, in the author’s opinion, must be addressed in order to remedy the injustice caused to the live-in caregiver.

One recommendation would be to introduce the concept of implied status for the caregiver to work, once the Canadian employer secured a confirmation of employment, and, in the case of Quebec, the worker would receive a new CAQ. This implied status would take effect once the application for an employment authorization was submitted to CIC-Vegreville. The visa officer would be instructed to issue a work permit with a date retroactive to receipt of the application. This practice could be adopted without the need for regulatory change.

A second recommendation would require a regulatory amendment to increase the time required to complete the 24 months from 36 to 48 months.

A third recommendation would allow the live-in caregiver to redo the program without having to leave Canada.

The live-in caregiver program is currently under review by CIC, which is now holding round-table discussions with stakeholders.