We had previously written about the new ‘Express Entry’ Canadian permanent residence application system. The system is set to commence on January 1, 2015. We noted in our last article that many of the issues were still unclear. Though it may not be correct to say that we now have complete clarity, there are indeed recent developments that enhance our understanding of the system, which we hope will be of value to our readers.
Existing Permanent Residence Programs
We first note that (theoretically), Express Entry does not change the need to first qualify under existing economic class permanent residence categories, which will continue to exist (it is the nature of the processing that will change, to be canvassed below). As noted in previous articles, these categories are:
- Canadian Experience Class (CEC) – an application which allows a foreign worker with at least one year of Canadian work experience to ‘convert’ his/her work permit to permanent residence.
- Federal Skilled Workers (FSW) – a system by which an applicant garners points for factors including age, education, language, occupation, length of experience, and arranged employment. If an applicant garners sufficient points, he/she will qualify for permanent residence.
- Federal Skilled Trades Program (FSTP) – this program allows skilled tradespeople an opportunity to obtain permanent residence based on experience, language, and a job offer or provincial certification. In many ways, the considerations in this category are hybrids of the CEC and FSW, applied to skilled tradespeople.
There also exist Provincial Nominee Programs, and the Quebec selection program, wherein provinces nominate/select candidates based on criteria that they set, and which are separate from the above. These applications will not be affected by the new processes (subject to clarification below).
It is important to note that though we speak of these programs continuing based on the same legal criteria, there are nuanced changes in some situations (and of course, future changes to these programs could occur at any time). For instance, under the current process, one must have experience in an occupation on a prescribed list, in order to qualify for the FSW program. Further, there are quotas set for the number of FSW applicants generally and per occupation. Under the new scheme, the list will be eliminated, and all applicants in NOC 0, A, or B categories will be eligible. This is a broader topic that will be covered in future articles, but at this time, the essential reality is that the programs remain essentially intact.
Permanent Residence Processing Up To December 31, 2014
Until now, when someone qualified in one of the above programs, he/she submitted an application, which was to be processed on a first in-first out (FIFO) basis. There were variations to the FIFO situation in view of the fact that some visa posts processed faster than others, ‘targets’ (quotas) were set for visa posts, and various other factors, but the theory remained that the process was driven by the applications received, and the intent to process them in an assembly line fashion.
Permanent Residence Processing From January 1, 2015 and Onward
Under Express Entry, the FIFO system is eliminated. Instead, all potentially qualified applicants (again, based on the existing federal permanent residence categories as noted above), submit a profile online, which is valid for one year. The government then, from time to time, selects from this pool. (Neither the exact schedule nor the number of selections per round, is available yet, though the first selection round is tentatively set for the end of January 2105.)
What we can now share with readers is a better understanding of how one gets chosen from the pool.
To be clear, to go into the pool, one must meet the provisions of one of the existing permanent residence programs. Indeed, the system will automatically determine whether a person qualifies under a particular permanent residence program based on the factors input, including work history in or out of Canada, language skills, etc. The system will also force those with no Canadian job offer to register with the Canadian Job Bank, where there could be a potential match up with employers seeking the person’s skills (and as such, ultimately the ability to secure an LMIA-based job offer which will assist them in the process).
However, to be selected from the pool, a different set of criteria must be met, as will now be described.
- Under the new ‘Comprehensive Ranking System’ (CRS), the maximum number of points is 1200. A breakdown of the points can be found athttp://www.cic.gc.ca/english/express-entry/grid-crs.asp#a4. Points are indeed awarded on the basis of ‘Human Capital’ factors including age, education, language, etc., but this is not to be confused with an assessment under the FSW program. It is based on these points that an applicant could receive an ‘Invitation to Apply’ (ITA), to proceed with the process as further noted below.
- It is important to recognize that the points will be used to rank candidates against each other, rather than to provide a minimum passing mark (which would be similar to the FSW program). That is, as it is currently explained, when the government is set to carry out one of their selections, they will set a target of how many applicants they will choose, and take the top ranked applicants. For example, if a round of selections is to provide 1000 ITAs, it is the 1000 top ranked applicants that will qualify; it is not a question of meeting a threshold of X points.
- Perhaps more importantly, candidates receive extra points for LMIA supported job offers or provincial nominations. Based on the calculations, these points will always place these candidates at the top of the ranking chart – and the government is indicating that these people will receive ITAs.
- Please note that there are two ways to get LMIA ‘credit’. One way is a situation where a worker is already in Canada, based on an LMIA-approved job. The other way is to seek an LMIA for the purpose of ‘arranged employment’ with regard to permanent residence/Express Entry. The latter LMIA applications are free.
- To clarify the PNP situation – though we noted above that PNP programs will continue to run independently of the new system, there will also be ‘enhanced’ PNP candidates who will be part of Express Entry. This will occur in cases where a province chooses a candidate from the pool – not unlike what an employer would do.
- What seems to be a bigger surprise is that unlike previously where a person with a non-LMIA based work permit (e.g. an Intra-Company Transferee, NAFTA Professional) got credit for ‘arranged employment’ in Canada, this is no longer true. To get credit for arranged employment (and as such the far higher ranking in the system), an employer would have to secure an LMIA for positions filled by a foreign worker, even though no LMIA was required to fill the position for the initial work permit.
- In view of the fact that LMIA-based applications are given far greater priority (if not effectively guaranteed immigration), the government is in essence forcing employers to first research the availability of Canadians (through the Job Bank) before making an offer to a candidate.
- What this means for non-LMIA based candidates, is that they could still qualify for permanent residence, but only if the number of ITAs offered on a selection round is greater than the number of people who have the job offers – which seems less and less likely.
After all of the above, if a person is selected from the pool, then he/she is given an ITA and 60 days to submit an application, with all appropriate evidence (language certificates, educational credential evaluations, etc. – these should actually be done prior to profile submission to ensure that the person will be getting the points he/she thinks he will be getting). Failure to meet the timeline will result in a withdrawal of the ITA and a refusal of the application. That person would need to re-enter the pool as set out above. The government is promising expedited processing, in about 6 months.
Impact
Though we have strived with this article to provide the latest information on the changes coming, and to explain the process appropriately, there is still, as with any new system, still further understanding needed in many respects, and we will continue to update readers. Clearly, however, the status quo is ending, and stakeholders need to be prepared to take action to accommodate the legal and procedural needs set out in this article.
What Employers and Prospective Immigrants Need to Do
As an employer:
- Recognize that high-level employees (e.g. intra-company transferees), no longer get any kind of ‘free pass’ into permanent residence. Rather, an LMIA/arranged employment will now need to be secured for that position/person. This cannot be taken for granted.
- Notwithstanding supposed faster processing, do not hesitate in getting the permanent residence process rolling for relevant individuals. Full evidence should be secured immediately (language tests, educational credentials, etc.) to allow smooth processing.
- Whether with regard to high-level employees or otherwise, recognize that LMIAs are becoming more and more a reality of the Canadian immigration system, and take action to assure success in those cases (though a separate topic, this can relate to recruitment efforts, etc.)
As a prospective immigrant:
- Ensure that you meet the criteria for entry into the pool
- Submit a profile online
- If you do not have a Canadian job offer, register with the Job Bank
- (Better yet, if possible, get an approved job offer)
- If you are working in Canada with an LMIA based work permit and wish to become a permanent resident, take immediate action as that work permit could expire, and its value in your application could therefore drop (in whole in in part).
- Be ready with necessary documents in anticipation of an ITA, failing which, you may not meet the deadlines.
The challenges ahead are great. Knowledge and preparation will allow participants to make the best of the new system.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.