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ImmPulse™ Newsletter

Canadian Immigration COVID-19 Summation

Purpose of this Alert

Immigration, Refugees and Citizenship Canada (IRCC), [along with other governmental authorities], continue to modify and refine issues vis-à-vis entry to Canada during the COVID-19 period. Pronouncements continue to be made through Orders-in-Council, and as elaborated upon though IRCC online notices. There have been a number of pronouncements over time, some of which have lacked clarity, and some of which, respectfully, seem somewhat inconsistent with each other. Further still, different pronouncements are made under different authorities (e.g. the Quarantine Act vs. the Aeronautics Act), and geared toward different end-users (e.g. airlines vs. work permit applicants) leading to further confusion. And even further still, the practical reality is that sometimes, decisions are made by people such as airline workers whose decisions ultimately limit the ability to make proper arguments before immigration officers or other officials. With this alert, we hope to compile and codify the current state of affairs based on information available as of this time.

WE CAUTION THAT EVEN WITH THIS SUMMATION, SOME AMBIGUITY REMAINS, AND SPECIFIC ISSUES MAY COME DOWN TO SPECIFIC OFFICIALS’ INTERPRETATIONS. SEEK APPROPRIATE COUNSEL FOR ANY SPECIFIC SITUATION.

Specific Issues Canvassed by This Alert – Work

For our purposes, we are looking at the issues for people seeking to work in Canada (there are also pronouncements that impact other groups including students, prospective permanent residents, and other groups, but we are focusing here on workers at this time).

The Canadian Immigration System is Functioning

Though perhaps slower than usual, and with certain hurdles, the Canadian immigration infrastructure continues to function.

  • Migration Offices (Canadian Embassies, High Commissions and Consulates that undertake immigration processing, as well as inland centres) continue to function, though again, at a slower pace, given staff reductions, etc.
  • That being said, certain ancillary functions are impacted, which in turn could impact immigration processing. For instance, Visa Application Centres (VACs), which are non-governmental offices that assist Migration Offices in various processes, are generally closed. These offices would typically process biometric requirements needed for visa applications, so without that, any visa application would be on hold.
  • The Canadian government recognizes the issue, and is extending deadlines for provision of biometrics, but non-the-less, applications will not finalize until the ancillary issues can move forward.
  • Each case must be considered individually, but assuming that travel will at some point reopen, it would generally still be worthwhile to file or continue to process an application, rather than wait for travel to resume, only to be at the back of the queue.

Ability to Work in Canada Generally

We would firstly note generally, that as per the Immigration, Refugees and Citizenship Canada (IRCC) web site on March 30, 2020:

  • “All temporary foreign workers are exempt from travel restrictions and can travel to Canada by air or land.”

This is a broad statement, but on its face, it appears that foreign workers can continue to enter Canada. However, there are certainly caveats.

  • The first thing which is not fully clear, and for which clarification is being sought, is whether a foreign worker is only one who already holds a work permit (which a separate pronouncement, discussed below, indicates), or a ‘prospective’ foreign worker. Certainly, in a situation where there is a non-visa national seeking an International Mobility Program (IMP – non-LMIA), an application would be made upon arrival. Based on the above, it would seem incongruous to say that this person cannot seek a work permit at a port of entry, as he/she would have done before. Further guidance in this regard will be provided, however, anecdotally, we are being advised that such port of entry applications are being processed.
  • As will be further discussed below, the ability to enter Canada at this time is often dictated by whether the activity is ‘essential’. Though this IRCC pronouncement does not indicate any such restriction, it may seemingly still be important to show that a person’s presence in Canada is important, even if not in the sense of medical equipment or food chain supplies. Though this is not fully expounded upon, it would be worthwhile, in addition to any other application materials that may otherwise be advisable in a particular case, to have a letter/documentation showing why this person is ‘essential’ (important), at the very least to that business or that operation. For instance, a particular worker’s task as part of a crew may be essential to the operation of a manufacturing facility. An I.T. worker’s input may be crucial for the continued operation of a particular business.
  • Assuming for now that non-visa foreign workers can still make application at a port of entry, it would also seem logical that this would include Business Visitors. Business Visitors are not non-workers. Rather, they are workers who simply do not need a work permit.

Ability to Travel to Canada

Related, though in a sense separate from the right to seek a work permit, is the physical ability to travel to Canada. As such, in addition to the foregoing, there are considerations for travel, which in the end, may dictate the reality of getting to Canada at this time. There are breakdowns based on travel by air vs. travel by land.

(A) Travel by Air

Within considerations of travel by air, are breakdowns of flying from the U.S., and flying from any other location. We will look at issues mutually impacting these issues, and thereafter, issues relating to the U.S. vs. other locations.

(A)(i) Measures Impacting Foreign Workers from Either the United States or Other Countries

  • Anyone exhibiting signs or symptoms of coughing, fever, or trouble breathing, will be barred from entry to Canada.
  • ‘Discretionary’ entry – essentially tourism – is prohibited
  • Other than certain ‘essential services’ (e.g. marine operators bringing medical supplies), travelers are required to self-isolate for 14 days upon entry. [Note that essential in this sense is more about direct impact on life – e.g., food, medical supplies, etc. Argument can be made that a particular person’s duties are such that the need for self-isolation should be waived.]
    • It may be worthwhile for applicants to produce some kind of documentation from their employer or otherwise confirming their need to be in Canada, and a self-isolation plan.

(A)(ii) Measures Impacting Foreign Workers from the United States (in addition to those in item (A)(i)

  • Note that this relates to persons in the United States – not necessarily U.S. citizens.
  • Notwithstanding allowances for entry, no foreign national may enter Canada if they have been in a country other than the United States (or Canada) in the 14 days prior to seeking entry.
  • The order is in effect until April 21, 2020 (unless extended)

(A)(iii) Measures Impacting Foreign Workers from Countries Other than the United States (in addition to those in item (A)(i)

  • Foreign Nationals already holding work permits (or approvals from visa posts) will be permitted to travel
    • Note that an approved LMIA or IMWU opinion does not permit a foreign national to travel
  • Certain other exemptions apply including:
    • A licenced health care professional with proof of employment in Canada.
    • Those providing an essential service.
    • Those delivering, maintaining, or repairing medically-necessary equipment or devices.
    • Those who make medical deliveries of cells, blood, tissues, organs or other party parts required for patient care in Canada.
    • A marine transaction worker essential for the movement of goods by vessel.
    • Those deemed to be coming in the national interest (for which an authorization would need to be sought).
  • The order is in effect until June 30, 2020 (unless extended)

(B) Travel by Land

  • Note that this relates to persons in the United States – not necessarily U.S. citizens.
  • Anyone exhibiting signs or symptoms of coughing, fever, or trouble breathing, will be barred from entry to Canada.
  • Notwithstanding allowances for entry, no foreign national may enter Canada if they have been in a country other than the United States (or Canada) in the 14 days prior to seeking entry.
  • ‘Discretionary’ entry – essentially tourism – is prohibited
  • Other than certain ‘essential services’ (e.g. truck drivers bringing medical supplies), travelers are required to self-isolate for 14 days upon entry. [Note that essential in this sense is more about direct impact on life – e.g., food, medical supplies, etc. Argument can be made that a particular person’s duties are such that the need for self-isolation should be waived.]
    1. It may be worthwhile for applicants to produce some kind of documentation from their employer or otherwise confirming their need to be in Canada, and a self-isolation plan.

(C) Workers Already in Canada

  • Those in Canada will be permitted to extend their status.
    1. Ordinary rules apply for those seeking to extend
      1. before current work permit expiry (implied status), and
      2. within 90 days of work permit expiry (restoration).
    2. For those beyond 90 days of expiry, they may still be able to seek a Temporary Resident Permit, explaining the need to remain.
    3. Those in Canada whose purpose has concluded (e.g. no longer expecting to work), application can be made to change status (e.g. to visitor), again, with explanation.
  • Flagpoling (i.e. exiting Canada briefly for the purpose of making some form of immigration application upon re-entry) SHOULD NOT be attempted. Flagpoling is, in essence, an entry to Canada, and issues above re entry to Canada will be imposed, notwithstanding that the exit from Canada was momentary.

(D) Dependents of Foreign Workers

  • Spouses with work permits and children with study permits should be allowed to accompany a foreign worker. Those on visitor records only will require a letter from a consular officer to allow for travel.

We must caution again that this information is subject to interpretation, and that various variables in the system (in terms of pronouncements and those that implement them) may dictate implementation. Further still, the situation remains fluid and subject to change. We will seek to keep our readers updated, but have sought herein to provide our summary of issues that seem pertinent in the realm of corporate immigration.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.