Author: Kranc Associates

Canadian law provides that foreign nationals (including international students and foreign workers) coming to Canada for 6 months or more, who have resided in ‘designated countries’ for 6 or more consecutive months in the last 1 year, must undergo an ‘Immigration Medical Exam’ (IME). Designated countries are those identified as having a higher risk of medical concerns. (In addition, people involved in certain fields such as health care, child care, or food preparation would also need IMEs.)

Effective November 23, the list of designated countries has changed.

The following countries, previously not designated, are now designated (i.e. they now require an IME):

• Fiji
• Singapore
• Timor-Leste (previously not listed as a separate country)
• Tunisia

The following countries, previously designated, have now been removed from the list of designated countries (i.e. they now do not require an IME):

• Argentina
• Bahrain
• Belize
• Colombia
• French collectively of Wallis and Futuna
• Portugal
• Seychelles
• Surinam
• Venezuela

The full list of designated countries can be found at http://www.cic.gc.ca/english/information/medical/dcl.asp. The government has indicated that the next review will occur in 2021, and every three years thereafter.

In view of the above, and if you have commenced or are about to commence any type of Canadian immigration procedure, and are coming from a newly designated or newly undesignated country, you should check to ensure that you are following appropriate protocol for your case.

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

Each Canadian province and territory maintains its own provincial nominee program (PNP). Though these are primarily systems geared toward providing (or achieving) permanent residence, selection in these program will also have consequences for the ability to secure temporary work permits as well.

Manitoba has now announced some new programs/features to its PNP. Among the highlights are:

• There will be four streams:
  • (1) The International Education Stream
  • (2) The Skilled Worker in Manitoba Stream
  • (3) The Skilled Worker Overseas Stream, and
  • (4) The Business Investor Stream

Please note that the time at which different programs take effect will be staggered.

1. The International Education Stream, set to come into effect in April 2018, will allow for expedited nomination for graduates of ‘STEM’ programs (science, technology, engineering, and math), completing internships that support industry innovation. The program will also allow post-secondary students who graduate from Manitoba institutions and have longer-term employment in an in-demand occupation (pursuant to a prescribed list found at http://www.immigratemanitoba.com/immigrate-to-manitoba/in-demand-occupations/) to seek provincial nomination immediately. (Previously, there was a six month waiting period.)
   .
2. The Skilled Worker in Manitoba Stream has two Pathways. There is (a) the Manitoba Work Experience Pathway, and (b) the Employer Direct Recruitment Pathway. Details can be found at http://www.immigratemanitoba.com/immigrate-to-manitoba/mpnp-renewal/renewed-swm/#1.
   .
   (a) The Manitoba Work Experience Pathway is for foreign workers already working in Manitoba in an in-demand occupation for at least six months, with some variations for other possibilities, such as foreign workers with twelve months of Manitoba experience in non-in-demand occupations.

   (b) The Employer Direct Recruitment Pathway allows for applications identified by Manitoba employers as having at least three years experience (in the past five) in the relevant occupation.
   .

3. The Skilled Worker Overseas Stream, set to come into effect in the new year, provides for (a) an ‘Express Entry’ Pathway, as well as (b) a Direct Provincial Pathway, with priority given to applicants with Manitoba-based family connections as well as language/training/experience that would allow the applicant to find employment quickly.
   .
   (a) For the Express Entry Pathway, applicants qualified under the Federal Express Entry program could be chosen for nomination by Manitoba.

   (b) For the Direct Pathway (technically referred to as the ‘Human Capital Pathway’), applicants with skills and experience in the Manitoba prescribed in-demand occupation list noted above, may seek nomination.
   Details can be found at http://www.immigratemanitoba.com/immigrate-to-manitoba/mpnp-renewal/renewed-swo/#1.
   .

4. The Business Investor Stream allows (in addition to a separate farm investor category) applicants to secure a temporary work permit based on a business proposal. (A prior requirement to provide a deposit has been eliminated.) The applicant then must meet the conditions of a ‘Business Performance Agreement’ prescribing measures of establishment (typically required within 12 months of arrival), and will thereafter qualify for permanent residence. Though this stream seems geared toward private entrepreneurs, there may also be some value for corporations generally seeking to establish in Manitoba to consider the use of this program (by sending a relevant managerial level applicant to the province). Details can be found at http://www.immigratemanitoba.com/immigrate-to-manitoba/mpnp-for-business/#1.

These new provisions will of course be of value to applicants destined for Manitoba – as well as employers with businesses in Manitoba.

 

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

Alberta, as all provinces now, maintains a Provincial Nominee Program, whereby people can be nominated for permanent residence based on criteria set by the province (rather than under the federal programs).

Alberta has announced that effective January 2, 2018, all of its economic class Provincial Nominee categories will be streamlined. Other than a separate category for self-employed farmers, the only category available for the AINP will be the “Alberta Opportunity Stream”. Applications filed prior to January 1, 2018 will still be eligible for the currently-available streams including the Employer-Driven Stream and the Strategic Recruitment Stream.

The Alberta Opportunity Stream’s essential tenet is that it allows for people already working in Alberta (or in some cases, elsewhere in Canada) to seek permanent residence, unless their occupation is on a list of ineligible occupations.

Though full information is not yet available, and there are certainly futher complexities, eligibility for the program generally will have aspects of:

• language qualification,
• minimum education and/or occupational certification
• minimum Alberta/Canada work experience, and
• minimum gross income based on family size

General information about the program can be found at http://www.albertacanada.com/opportunity/programs-and-forms/ainp-alberta-opportunity-stream.aspx, and the current list of ineligible occupations can be found at http://www.albertacanada.com/opportunity/programs-and-forms/ainp-aos-ineligible-occupations.aspx.

There will be a quota for the number of applications each year, and there may be sub-quotas set based on sector or occupation.

The Alberta government has indicated that it will publish more information about the program and its details in or around the beginning of the new year.

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

The National Occupational Classification (‘NOC’), is a system created by Employment and Social Development Canada (ESDC) in which all occupations are classified and defined for various Canadian legal purposes, including immigration considerations.

The classification is broken down into a grid which determines:

• along its X-axis, the type of field
  • e.g. scientific, health, business occupations, etc., and
• along its Y-axis, the level within the field
  • e.g. management level, occupations typically requiring a university degree, occupations typically requiring a college diploma, etc.

Occupations within the grid are then further broken down into specific categories, and each occupation is assigned 4-digit code.

For immigration purposes, the NOC is instrumental in determination of various issues, including, but not limited to:

• applicability of particular work permit categories (e.g. what are the duties of a Computer Systems Analyst for the purpose of consideration of a possible NAFTA Professional application in that category)
• consideration of whether a particular applicant can be classified in a specific job, based on its educational or other requirements
• salary, and
• the right of spouses/common-law partners to work.

Except for open work permits, determination of the appropriate NOC code is always relevant for work permit applications, and it is also relevant for economic class permanent residence applications. [Note that there are cases where NOC consideration may intersect with different occupational classifications for immigration purposes. For example, under the new Canada-European Union Free Trade Agreement (CETA), the United Nations Provisional Central Product Classification is referenced. There will typically be a concordance that allows consideration under an appropriate Canadian NOC Code, but it is important to ensure that appropriate requirements are met under all applicable classifications.]

Along the way, various versions of the NOC have been published. Immigration, Refugees and Citizenship Canada (IRCC) has announced that it will be now be relying on the most recent 2016 version of the NOC. Previously, the 2011 version was in use (and prior versions before that). As such, anyone dealing with a prospective Canadian work permit or permanent residence application must now ensure that they are considering the NOC elements as set out in the 2016 version, and not prior versions. The 2016 NOC can be found at http://noc.esdc.gc.ca/English/noc/welcome.aspx?ver=16. There is currently no concordance table published showing the relationship of NOC 2016 categories, and categories under any prior NOC version.

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

What’s New

Canada has now implemented the Canada-European Union Comprehensive Economic and Trade Agreement, referred to as CETA. This agreement has various immigration components, and Canadian companies are expected to greatly benefit from its provisions.

Impact

CETA’s immigration provisions will provide a number of benefits for foreign workers and business visitors from EU member countries. These include:

• ‘Enhanced’ Intra-Company Transfer Provisions

The basic concepts otherwise employed for intra-company transferees from around the world are otherwise enshrined in CETA, including allowances for ‘Senior Personnel’ (parallel to those having executive capacity), and ‘Specialists’ (parallel to those having specialized knowledge). However, CETA adds a third type of intra-company transferee, the ‘Graduate Trainee’. The criteria for such trainees is that they:

(a) possess a university degree, and
(b) are being temporarily transferred to an enterprise in Canada for career
development purposes or to obtain training in business techniques or methods.
Such trainees may receive work permits for the lesser of the length of their assignment contract and one year. No extensions are permitted.

• Contractual Service Suppliers and Independent Professionals

Those dealing with issues of Canadian contracts with foreign service suppliers, or necessities for after-sales service, are keenly aware of the issues sometimes faced in those types of scenarios. CETA provides some relief with regard to foreign service providers.

The provisions of this category apply to certain industry sectors, which can be found at http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/a10-e.asp. There are different sectors in the two categories, but some examples of the types of industries include engineering, computer and related services, manufacturing advisory, and legal advisory. Further, within these sectors, the nature of the position must fall within National Occupational Code (NOC) levels ‘0’ (management) or ‘A’ (usually requiring a university degree). Work permits will be granted for a maximum of 12 months. To qualify as a Contractual Service Supplier or Independent Professional, applicants must have:

(a) a university degree or a qualification demonstrating knowledge of an
equivalent level, and
(b) professional qualifications if required to practice an activity pursuant to the
laws or requirements in the province or territory where the service is supplied.

Note the distinctions between Contractual Service Suppliers and Independent Contractors:

(a) Contractual Service Suppliers are employees of an EU enterprise that has no Canadian establishment, where there is a contract by their company to provide a service to a Canadian customer. The employee must have been with the EU enterprise for at least one year, and possess three years of relevant professional experience.

(b) Independent professionals are self-employed professionals, contracted to supply a service to a Canadian customer. Such applicants must be engaged in the supply of the service as a self-employed person, and must possess at least six years of relevant professional experience.

 

• Investors

Investors are EU citizen who will establish or develop, on their own behalf, or on behalf of their employer, Canadian operations. Their roles must be supervisory or executive, and the investment must be ‘substantial’. Initial work permits are for one year, with extensions possible.

• Business Visitors

CETA provides for two categories of business visitors – short-term business visitors, and business visitors for investment purposes. The provisions that allow for these business visitations are in addition to rights that might otherwise exist for ‘ordinary’ business visitors.
Short-term business visits are for up to 90 days in any six-month period, and allow for brief visits, typically for a specific project. The activities permitted can be found at http://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/10-A.aspx?lang=eng. Certainly, many of the activities parallel ordinary business visitor provisions, but are defined at this site.
Business visitors for investment purposes are EU visitors in a managerial or specialist capacity responsible for setting up a Canadian enterprise, where the person does not engage in direct transactions with the general public, and is not remunerated from Canada. This presumably is a lead-in to a potential future Investor work permit as set out above.

What You Should Do

The foregoing is of course only a brief summary of the provisions of CETA, and there are many details. If you engage or seek to engage EU nationals for activities in Canada, CETA may offer various benefits, but you must also be cognizant of limitations, and should ensure that you are informed about specific requirements for a particular case. We hope to expand on CETA provisions as time goes on, but at this juncture, the above summary should provide a basis to know whether a CETA provision may benefit you, which will allow you to then consider the details.

 

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

Every international traveller knows the trauma that ensues when the flight attendant comes around the cabin with the destination country’s ‘Customs Cards’. Certainly, business travellers/foreign workers have added concern because the responses given on the cards may have some implication as to the nature of their activity/work, financial considerations, etc.

The Canadian government has now introduced an app that allows travellers to complete the Customs Card declaration on their smartphones. The app works in airplane mode (after download), so the information can be input before or during a flight. The declaration, when complete, will generate a QR code, which can then simply be scanned upon arrival at an airport which has a ‘Primary Inspection Kiosk’. These electronic kiosks are replacing humans, and are being rolled out at airports across the country. Kiosks are currently located in Toronto, Edmonton, Ottawa, and Vancouver, and they will be installed at all airports as time goes on.

Please note that neither the Customs Card app, nor the Primary Inspection Kiosks, change the substantive issues that have been, and will continue to be, the subject of what needs to be declared/said/done when travelling to Canada. Any issues about value of goods, purpose of travel, etc., is still being checked – just in a more efficient way. If there is any issue, a traveller may be sent to a human officer for more detailed analysis. In cases where there is a more complex immigration aspect to the travel, notably a work permit application, the traveller will certainly be sent to ‘Immigration Secondary’ for further processing – which is an ordinary procedure.

Though, and again, the new app does not change the substance of the considerations related to travel to Canada, it may be a valuable and important tool for business travellers.

The app can be found at http://www.cbsa-asfc.gc.ca/new-neuf/app-eng.html.

 

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

In June 2016, Immigration, Refugees and Citizenship Canada (IRCC) created a work permit category whereby French-speaking foreign workers in NOC 0, A, or B (high skill) occupations, destined for a province other than Quebec, could be hired without the need for a Labour Market Impact Assessment (LMIA). Note that this work permit category is available to French-speaking foreign workers whether or not the actual position in question requires the use of French. [LMIA exemption Code C16]

At the time of creation of the program, one of the requirements was that the foreign national had “been recruited through a francophone immigration promotional event coordinated between the federal government and francophone-minority communities”.

The reality was that this requirement became perfunctory (and as such, essentially meaningless) as the requirement could be fulfilled by, for example, simply sending job offer information through to the Canadian embassy in Paris, France, whether or not any action resulted from that offer. (Without expounding on the full rationale behind this procedure, it was designed to get Canadian employers linked with foreign recruitment services.)

The government has now removed this requirement. Though they have left wording still ‘encouraging’ such recruitment, the requirement is no longer mandatory. As such, employers outside Quebec seeking to hire French-speaking foreign workers can now simply proceed with the filing of their Offer of Employment on through the Employer Portal, and otherwise following through on application procedures, as would be the case for any non-LMIA work permit.

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

Background

Employment and Social Development Canada (ESDC), the government agency responsible for Canada’s Temporary Foreign Worker Program (TFWP), has announced that new, stricter, regulations will go into place on August 28, vis-à-vis recruitment requirements to hire a Temporary Foreign Worker (TFW). Hiring a TFW in Canada requires an employer to seek a Labour Market Impact Assessment (LMIA) – essentially government certification that the employer was not able to fill a position from the Canadian labour market, and has therefore been granted permission to hire a foreign worker. Once an employer secures an LMIA, the prospective TFW may then apply for a work permit – either at a visa post if he/she requires a visa, or at a Port of Entry otherwise.

There are exceptions to the need for an LMIA before a TFW applies for a work permit, such as intra-company transferees, certain professionals from specified countries, etc. These categories, which all fall under the umbrella of the International Mobility Program, will not be impacted by the changes to the TFWP. Further, specialized programs such as the Global Talent Stream will continue to maintain their unique requirements (see http://www.kranclaw.com/2017/06/canadas-global-skills-strategy-implemented-today/).

LMIA applications are divided into those for high-wage occupations, and those for low-wage occupations (the dividing line being the provincial median wage). The new rules impact both of these categories, but we will be focusing in this article on the high- wage occupations.

High-wage occupation LMIAs have various aspects to them. Among other issues, the salary offered must be at prescribed rates (which depend on the job and the location), and recruitment must occur in a prescribed way. It is the method of recruitment which the government is altering.

Prior Requirements

Until now, the basic recruitment requirement in relation to an LMIA application, briefly summarized, was:

• For 4 consecutive weeks within the 3 months immediately preceding the LMIA application, advertise the position:
  • On the Canadian job bank, or, where a provincial job bank existed, on the relevant provincial job bank
  • On 2 other sources as may be appropriate for a particular industry, such as:
    • Employment web sites
    • National newspapers
    • Recruitment agencies
  • One of the ads must continue to run until the LMIA application is adjudicated (i.e. beyond the 4 weeks)
  • The content of the ad had to meet certain requirements, including:
    • Listing salary
    • Listing job duties
    • Listing place of employment, and
    • Skills required

What’s New

Effective August 28, the following additional requirements come into effect:

• For positions in provinces that have their own provincial job banks, the employer must now use the national job bank. However, the provincial job bank may serve as one of the additional 2 sources otherwise required.
• Employers will be required to use the job bank’s ‘Job Match’ service. This service provides employers with the ability to see anonymous prospective applicants whose skills corresponding to those set out in the job posting.
• Most importantly, the Job Match service noted above ranks each prospective candidate matched to a position on a system of 1 to 5 stars. It will now be mandatory for employers to invite any prospective candidate who applies within the first 30 days and who receives a 4 or 5 star ranking, to apply for the position.

What You Need To Do

Clearly, employers seeking to hire TFWs, and those advising them, must incorporate these changes into their processes.

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

Work Permit Application/Renewal Procedure Background

There are many situations where someone may apply for a work permit at a Port of Entry. These include the vast majority of work permit applications for applicants who do not require a visa before seeking entry to Canada. Once those people have been granted work permits, the process to renew that work permit as it comes up for expiry is to be made through an application to an inland Case Processing Centre. [There are other kinds of applications made at Ports of Entry, but for our purposes, we are focusing on work permits.]

Work Permit Renewal Alternatives

Though, as noted, renewal applications are to be made through the inland Case Processing Centre, where someone can seek a work permit without a visa, and they are already physically in Canada, they may instead, (through the same legal authority as the initial application), drive to the nearest land border crossing, exit Canada, and seek a new work permit on re-entry. This is of course separate from the issue of what happens on the U.S. side, though this issue can usually be alleviated through appropriate communications.

[This is typically done to save time, but sometimes it is just due to the reality of the need to exit Canada without enough time to process an inland case, and therefore a new work permit needs to be sought on re-entry (whether by land or air). Note that, though from the applicant’s point of view, the ultimate impact of the application may be the same, an inland application is technically a renewal, while the Port of Entry process is a separate work permit application.]

The term often used for such exit and re-entry work permit applications is ‘Flagpoling’.

The Issue

From Immigration Canada’s point of view, it should be recognized that though flagpoling is an available option in some cases, it is frowned upon because the inland renewal system is set up for this purpose, and a flagpoling application utilizes precious Port of Entry resources. [As anyone seeking to enter Canada will know, there can often be congestion.]

What’s Changed

Recently, due to the impact on resources, Immigration Canada has issued a new pilot policy with regard to flagpoling at Southern Ontario Ports of Entry, and specifically, the Queenston-Lewiston and Peace Bridges. The policy does not change any flagpoling processing issues with regard to applications made on Tuesdays, Wednesdays, or Thursdays. However, for flagpoling applications made from Friday to Monday, applicants will be permitted entry under their current immigration status, but given the option to either:

• Thereafter, seek a renewal through the inland Case Processing Centre, or
• Return to the Port of Entry between Tuesday and Thursday for processing in the ordinary manner.

What You Should Do

This can be an important issue in the planning process for anyone seeking a new work permit by flagpoling at those Ports of Entry. After taking time off work, travelling somewhat long distances in some cases, and otherwise taking steps in a ‘flagpole’ application, failure to recognize the guidelines can lead to wastes of time, resources, and money for both employer and employee. All concerned should be aware of the issue, and take appropriate, and generally not that onerous, steps to avoid any concerns.

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

The Canadian government has announced that, effective June 27, citizens of Antigua and Barbuda will require a visa to travel to Canada. Any Electronic Travel Authorization previously issued will become invalid.

This change is due to a concern by the Canadian government concerning the integrity of travel documents from Antigua and Barbuda. It is not clear at this time if and when the concerns may be addressed, and the visa requirement lifted.

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