Author: Kranc Associates

Who is Impacted

Alberta employers whose employees are seeking permanent residence through the Alberta Provincial Nominee Program.

Background

On April 1, 2011, Citizenship and Immigration Canada (CIC) announced that subject to various exceptions, work permits in Canada would be capped at four years. Thereafter, workers would need to be absent for a further four years before they might work in Canada again. CIC said at that time that the provision was not retrospective; as such, the first possible date that someone could hit the four year cap was April 1, 2015. There are therefore people at this moment who are starting to be caught by this provision, and whose work permits will not be renewable.

What Has Changed

In what seems like a ‘common sense revolution’, however, CIC has recognized that there needs to be some adjustment to this pronouncement, and has made some modification.

Specifically, CIC has recognized that there are many well-qualified foreign workers who have applied for permanent residence under the Alberta Provincial Nominee Program (AINP). However, the AINP is currently taking some 29 months to process applications. Therefore, it may well come to pass that a foreign worker in Alberta who has applied under the AINP will need to leave in the interim, caught between the four year cap and the 29 month processing period.

CIC has therefore allowed an exception to the four year cap, and announced the ‘AINP Pre-Nomination Initiative Work Permit’ (AINP-PNIWP). This will allow some people to bridge the gap to permanent residence finalization, even though they are in Canada beyond four years.

Program Requirements

To qualify for this kind of work permit, the following conditions must be met.

The worker must:

• be working on an International Mobility Worker work permit (i.e. not based on a Labour Market Impact Assessment)
• have applied to the AINP before July 1, 2014
• be currently in Canada with a valid work permit set to expire in the 2015 calendar year (caution must be exercised in that if an expiry period passes before the AINP-PNIWP application is made, the person concerned will lose all right to use this program)
• have applied for an “initiative” work permit for work in Alberta with the same employer
• have a letter from the AINP indicating that Alberta intends to nominate the worker, and
• have created an Express Entry profile if they have a NOC B position

No further guidance has been provided, but if the logic follows through, it may be reasonable to believe that such a program would be renewed into the following year or years.

What you should do

If your organization has a foreign worker who meets the above criteria, you and he/she should take action to secure the necessary documentation and lodge the relevant application as appropriate. Failure to do so, could lead to a foreign worker being put back in the black hole between the four year cap and the AINP permanent residence finalization

Conclusion

Since 2011, Canadian immigration laws, regulations, and policies have been changed on countless occasions – and always to make them harsher and more restrictive. This seems to be the first recognition that sometimes, CIC may need to relax or at least review some elements of its program. Failure to do so in reality leads to harm to foreign workers, to their employers, and indeed to Canada. Hopefully this philosophy may take root, but for now, at least some foreign workers who have applied for permanent residence under the AINP, will be able to secure a kind of ‘bridge’ work permit, mitigating the impact that the 4 year cap that could have been be harmful to all involved.

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

Who is impacted:
     Employers seeking to hire LMIA-based foreign workers, and prospective employees

Application Type Impacted:
     Labour Market Impact Assessments

Effective Date:
     April 30, 2015

What is changing:

Further to the myriad of changes that have affected Canada’s Temporary Worker Program in the last few years, it appears that we still haven’t seen the end. This change impacts LMIA applications.

Effective April 30, a new method of identifying employer requirements to recruit foreign workers will be implemented. This change was contemplated previously (with the June 2014 amendments), but it is only set to come into force now.

Until now, under the post-June 2014 scheme, employers seeking to hire a foreign worker, would need to consider whether the appropriate salary for this occupation was above or below the provincial median wage, and whether the occupation was high skill or low skill (pursuant to the appropriate NOC designation. NOC 0, A, B = high skill; NOC C, D = low skill).

[Please recognize the distinction between the provincial median wage, and the Job Bank-based median wage relating to NOC specific occupations, for the purposes of analysis. Each NOC occupation will have a median wage on the Job Bank which takes into account location and other factors. This is different than the provincial median, which is simply the median wage as taken from across all jobs in the province.]

 

In most cases, high skill positions (which require an LMIA transition plan) would be above the median provincial wage, and low skill positions (which have a cap on the number of positions that can be filled), would be under the median provincial wage. It is possible, however, that there could be a low skill occupation (i.e. NOC C or D) whose Job Bank-based median wage pays above the provincial median wage, and therefore would be considered ‘high wage’, and subject to a transition plan. [In theory, the corollary could also be true (high skill wage which paid below the provincial median), but unlikely.]

To clarify a bit further, if the Job Bank says that Occupation A, which is a NOC C level occupation, requires a median wage of $X, but it so happens that $X is actually higher than the listed provincial median wage, that job will be caught as a high wage occupation, and would therefore be subject to a transition plan.

Under the new scheme, this will be simplified. The test will simply be whether the wages required for that occupation pursuant to Job Bank guidelines are above or below the provincial median wage. If above, then they are in the ‘high-wage’ stream and if below, they are in the ‘low-wage’ stream. It won’t matter what the NOC code of the occupation is. If it requires a median Job Bank wage higher than the provincial median, it is high-wage (requiring a transition plan and all other high-wage considerations), and if it requires a median Job Bank wage below the provincial median, it is low-wage (subject to the cap and other low-wage considerations).

For low-wage occupations, employers are also required to include return airfare, provide a contract with prescribed obligations, and ensure affordable housing is available. The government will also update its unemployment surveys which impact low wage positions where unemployment is 6% or greater, in particular sectors. [Information available at http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/tables.shtml#h2.5].

Though the actual situation types that may be affected by this change may be limited, it is important to incorporate the legal consideration for all applications, lest an error occur.

A few further points:

• Employment and Social Development Canada (ESDC) and Service Canada, the administrators of the program, use the 2006 National Occupational Classification (NOC) requirements for the job equivalency evaluation (not the newer 2011 NOC). [This is not a new issue, but it is important to keep in mind.]

• Yearly salaries are calculated based on the presumption of a 40 hour work week (times 52 weeks in a year)

• New forms will be introduced on April 30 impacting both high and low wage positions. Whereas there were separate forms before, both types will now be completed on the same form, and post April 30, all applications must use the new form.
  • LMIAs for the purposes of supporting an Express Entry permanent residence application will also have new/different forms.

• LMIAs in Quebec will be subject to the same requirements as all other provinces (except for the list of 42 recruitment-exempt occupations, for which employers will retain some flexibility).

• LMIAs for highest-demand occupations (skilled trades), highest-paid occupations (top 10 percent), or short-duration work periods (120 day or less) will now be provided within a 10-business-day service standard.

Further information and the current provincial median wage information can be found at http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/highlights.shtml.

What you should do:

As an employer, ensure strict adherence to the requirements, and meet all salary or other guidelines prescribed. Ensure that all necessary information is substantiated carefully before filing an application, and that the correct form is used. Review salary requirements before recruiting for and/or launching an LMIA application, to ensure that you can accept the characterization of the occupation in question as high or low wage, and the consequences that flow therefrom.

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

Effective:                           Immediately

Who is Impacted:              All Foreign Workers, Business Visitors and their Employers

What Has Changed

Please note that effective March 31, 2015, Visa Post-specific Canadian immigration information is no longer found (or will no longer be updated) at each Visa Post’s own web site. A Visa Post includes any Embassy, High Commission, or Consulate that processes Canadian immigration applications outside Canada. Different Visa Posts sometimes have different procedures, including the need for different kinds of identification documents, work history documents, or otherwise, based on local issues in the countries they serve. Until March 31, 2015, research for any specific Visa Post-specific or country-specific requirements or forms were found at a web site maintained at each individual Visa Post’s web site.

Moving forward, all Visa Post-specific information will now be found at www.canada.ca (also accessible through http://www.cic.gc.ca/english/index.asp).

Please note as well that though this alert focuses on business categories, this change will also impact ‘ordinary’ visitors and students.

 

What You Should Do

The change seems cosmetic from the user’s vantage point (though it may improve functionality). However, the real issue here, and the reason for this release of ImmPulse™ is to apprise readers that they should no longer rely on information found at a Visa Posts’ specific web sites. Even if information is on the Visa Post’s site, and even if it seems on point, it will soon be outdated, and can no longer be considered reliable. In view of the rapidly and ever-changing requirements of Canadian immigration applications, care should be taken to ensure that any application is made using the most reliable, up-to-date forms and information, and a review of the www.canada.ca before each application is made is the only way to be sure that your information is as current and accurate as possible.

 

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

Effective:                           Immediately

Who is Impacted:              All Foreign Workers (subject to exceptions set out) and their Employers

The Issue

Time goes quickly. On April 1, 2011, Citizenship and Immigration Canada (CIC) instituted a regulatory measure providing that temporary work permits could only be extended for a total work time of four (4) years. The clock for the new provision began to run on April 15, 2011 – that is, any time already spent in Canada as of that time was not included in the cap, so the first date on which someone could possibly reach the 4 year cap would be April 1, 2015. The future has now arrived.

Factors/Strategies to Consider

Subject to exceptions set out below, any foreign worker in Canada who has now hit the 4 year cap would be ineligible to renew his/her work permit. A few notes about the nature/implications of the 4 year cap provision, and strategies to recognize:

• The 4 year cap is ‘real time’. That is, work permits may have been issued for a period totalling 4 years, but it is only the actual time that someone has spent in Canada that is counted. So, a foreign worker with a 2 year work permit who has been working in Canada only 6 months would be considered to have used only 6 months, not 2 years. That being said, the worker must be able to substantiate the facts; he/she must therefore maintain documentation such as passport stamps, airline tickets, or other evidence of when he/she was in or out of Canada.

 

• The ‘solution’ to the cap is often an application for permanent residence. This should be made at the earliest possible opportunity (though, under the new Express Entry system, processing for qualified applicants should be faster than it has been in the past). This will avoid the potential gap between reaching the 4 year gap, and achieving permanent residence. This gap can cause further issues including:
  • The need to depart Canada to comply with the terms of the work permit, and
  • The possibility that the permanent residence application could be negatively impacted by the fact that the person is no longer working in Canada. For instance, this could mean that a previously existing LMIA on which the work permit was based may have lapsed, impacting the points required.

 

• Once a person reaches their cap, they will not be entitled to another temporary work permit for a further 4 years.

Exceptions:

The 4 year cap is not universal. Exceptions to the cap include:

• Managerial level (NOC 0) or professional level occupations (NOC A)

 

• Those who have applied for permanent residence, and have received an approval letter. (If necessary, one could also therefore get a bridge work permit.)

 

• If a work permit is based on a free trade agreement. At this time, these agreements would be:
  • North American Free Trade Agreement (NAFTA)
  • Canada-Chile Free Trade Agreement (CCFTA)
  • Canada-Peru Free Trade Agreement (CPFTA)
  • Canada-Colombia Free Trade Agreement (CCoFTA), and
  • Canada-South Korea Free Trade Agreement (CSKFTA)
  • (Immigration provisions under a new European free trade agreement may also come into effect in the near future)

 

• Those exempt from the LMIA process, e.g., spouses or common law partners of highly skilled foreign workers, those under reciprocal benefit, etc.

 

• Note though that those exempt from the 4 year cap may still be subject to other caps. For instance, Managerial level Intra-Company Transfers are subject to a 7 year cap, and Specialized Knowledge Intra-Company Transfers are subject to a 5 year cap.

 

 

What Employers Need To Do:

To summarize, the 4 year work permit cap is now in play, effective April 1, 2015. Though no one would be caught by theses provisions until now, those who have failed to fully consider the matter may wish to take another look at their circumstances, and what actions they may need to take that may allow them to extend their maximum time, if desired. Moving forward, employers and employees should plan for the future taking this provision into account, and noting some of the issues and strategies set out above.

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

What’s New

As set out in our last issue of ImmPulse™, Citizenship and Immigration Canada (CIC) has announced that, effective February 21, 2015, work permit applications in LMIA-exempt (‘International Mobility’) categories will require additional compliance measures, notably, employer declarations/offer summaries. This will impact many categories including intra-company transfers, and NAFTA professionals.

Despite the substantial impact of this announcement, and the proximity of the announcement to the effective date, information is only slowly and gradually being released to allow the immigration community to digest and understand the requirements.

Today, CIC released the form that they have created that employers will be required to complete for LMIA-exempt work permits. The actual form can be found at http://www.cic.gc.ca/english/pdf/kits/forms/imm5802e.pdf. We urge readers to review the form, as it will become a staple of everyday life for this involved in work permit applications.

Much of the information requested seems innocuous (though time-consuming). However, initial analysis of the information requested reveals possibly difficult or contentious requirements. Among other concerns, the forms asks for:

• Information about Company Size
  • It is not clear how this request may be relevant. It is also not clear if this means just the Canadian business, or whether this includes foreign affiliates where applicable.
• Employer ID/Canada Revenue Agency Business Number
  • As innocuous as this seems, this raises concerns about (a) requests for Service Canada employer IDs (which should be related to LMIAs), and (b) situations where the employer is a foreign company, which is not out of the ordinary.
• Applicable Licensing Provisions
  • There are a number of otherwise regulated professions which are exempt from CICs scrutiny. For instance, NAFTA professionals do not need to demonstrate licensing to CIC; only that they have the appropriate credentials. This question implies that this is something that CIC will now wish information about, which could greatly complicate an application.

Impact

It is not clear how strictly each element will be enforced to create a ‘complete’ form. As noted, specific questions may not be relevant, or legally appropriate. We advise readers to ‘brace for impact’, and we will continue to provide information and strategic considerations as they are provided or as they evolve.

Further information

We refer readers again to the applicable form at:

http://www.cic.gc.ca/english/pdf/kits/forms/imm5802e.pdf.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Effective Date:                       February 21, 2015

What’s Changed:

Citizenship and Immigration Canada (CIC) has announced that, effective February 21, 2015, work permit applications in LMIA-exempt categories will require additional compliance measures. LMIA-exempt work permits are now referred to as work permits under the ‘International Mobility Program’.

Under the new measures, before employees can seek non-LMIA based work permits (see below re application types), employers will be required to meet certain guidelines. Employers will need to:

• Provide specific company information
  • Specified forms and/or guidelines are anticipated, and readers will be apprised
• Provide an offer of employment
• Pay a $230 compliance fee online

Failure to Comply:

Failure by employers to comply with the above can lead to penalties not unlike those now in place for LMIA-based work permits. Penalties may include:

• Monetary penalties
• Ban on foreign worker recruitment, and
• Possible criminal sanctions

Who is/Case Types Impacted:

Examples of application types that will be impacted include:

• Intra-Company Transfers
• NAFTA Professionals
• Reciprocal Benefit
• Significant Benefit
• Employer-specific International Experience Class
• Emergency Repair, and
• Treaty-based work permits (notably professionals)
  • GATS
  • Canada-Chile Free Trade Agreement
  • Canada-Peru Free Trade Agreement
  • Canada-Colombia Free Trade Agreement
  • Canada-South Korea Free Trade Agreement

Open work permit types will not be impacted. Examples of these application types include:

• Spousal
• Post Graduate
• Working Holiday (this does not include employer specific IEC work permits, as noted above; i.e. employer specific IEC work permits would need to meet the new requirements)
• Bridge

However, open work permits will now be required to pay a further $100 fee (beyond the usual $155 work permit fee) in application for such work permits.

Further information

Additional information can be found at: http://www.cic.gc.ca/english/department/media/notices/2015-02-09.asp.

What Employers and Employees Need To Do:

Employers need to ensure that they are aware of the requirements and comply. Systems should be put into place with regard to information required and other aspects of the new requirements. Internal company personnel should be advised, failing which, they may seek a non-LMIA work permit without realizing the requirements, which can lead to sanctions for the employer, and rejections for the employee.

Employees should check with their counsel or HR departments before planning any work in Canada, and ensure that they are fully instructed of the requirements before proceeding to Canada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

In June 2014, Citizenship and Immigration Canada (CIC) released Operations Bulletin 575, containing new guidelines with regard to Intra-Company Transfers for personnel with specialized knowledge (ICT-SK). These pronouncements had tremendous impact on the Canadian immigration system, particularly since Intra-Company Transfer provisions are among the most widely-used means by which foreign workers are granted work permits. Some of these guidelines altered well-established concepts upon which employers had relied for many years. (There was no modification to the other branch of the Intra-Company Transfer allowance – the allowance for those with senior managerial or executive level positions.)

Among the new requirements were:

1. ICT-SKs would now need to meet the median wage requirements for their occupation (based on the National Occupational Classification).  [The new guidelines relieve officers of this consideration with regard to Free Trade Agreement (FTA) based Intra-Company Transfers (notably NAFTA), but indicates that the issue is still a factor to be considered, even under FTAs.]
   • Previously, there was no such requirement.
2. ICT-SKs would have to have ‘advanced expertise’ with the company PLUS ‘proprietary knowledge’. 
   • Previously, the test was ‘advanced experience’ OR ‘proprietary knowledge’.
3. The terms ‘advanced expertise’ and ‘proprietary knowledge’ were in turn further narrowed. 

   ‘Advanced expertise’ was to be ‘recent and significant’ [and presumably more than just the technical one year minimum].

•         Previously, this requirement was not stipulated.

  The considerations for ‘proprietary knowledge’ was narrowed, requiring, for instance, that the knowledge be unusual within the host company, and that it be critical to the company.

•            Previously, the term allowed for broader interpretation.

4. ICT-SKs were to be “clearly employed by, and under the direct and continuous supervision of, the host company”.
   
   • Previously, there was no such requirement, though certain visa posts were starting to unilaterally implement this concept.

Now, with the passing of time, we have seen how some of these guidelines are being implemented in practicality. Certainly, the process is still relatively new, and will continue to evolve (particularly in the current, stricter, Canadian immigration environment), but as of this time, there are a few things we have learned that allow us to navigate the system effectively.

1. Re: New median wage requirements. 
   1. We have seen increased scrutiny with regard to this provision. Not only are median wage requirements being expected, but indeed, often higher than median wage, depending on the applicant’s seniority. That is, it may be true that the median wage for Occupation X is $Y/hour, but Ms. Smith, the applicant, has 10 years’ experience, so presumably she should make much more than just the median wage.
   2. Further, this has been true for both FTA and non-FTA applicants.
2. Re: New ‘advanced expertise’ PLUS ‘proprietary knowledge’ requirement. 
   1. This is of course a much more difficult standard, but officers are indeed insisting on both elements. It is therefore crucial to provide evidence and/or stipulate in supporting documentation how both aspects of the test are met. Failure to substantiate one factor or the other will likely result in refusal.
3. Re: Changes to the terms ‘advanced expertise’ and ‘proprietary knowledge’. 
   1. With regard to the redefinition of the terms themselves:
      1. Firstly, the guidelines say that the greater the time with the company (within the last 5 years), the greater the presumed advanced level. This is creating in the minds of many officers a de facto reality that advanced experience is indeed 2 years or more. This also seems to contradict the very principle of a 1 year requirement already built in to the law for the purpose of establishing sufficient experience. Non-the-less, people with a mere’ 1 year of experience may find it more difficult to get consideration.
      2. Secondly, what is ‘proprietary knowledge’? Interestingly, CIC has distinguished between proprietary knowledge and advanced proprietary knowledge. In practicality, however, it would seem to all boil down to proprietary or not.
         1. That being said, it should be noted that CIC is accepting arguments of proprietary knowledge that are based on information that is not necessarily patented or otherwise protected. Proprietary is being considered to include internal processes that are not known outside the company. Certainly, the closer to patented, the better, but the lack of a patent does not necessarily stop the viability of the application.

4. Re: Employees to be “clearly employed by, and under the direct and continuous supervision of, the host company”. 
   1. This can sometimes be a very difficult standard. For instance, what is ‘employed by’? Does this mean that such Intra-Company Transferees needed to be on Canadian payroll? This was indeed the initial understanding of the provision by many in the field. However, it now appears to be accepted that the test being implemented is more about being supervised by, and carrying out activity on behalf of, the Canadian entity. Transfer to Canadian payroll may be more indicative of this, but officers are not insisting on it.  Documentation that may assist in this regard can include corporate charts, a job description which clearly evidences that this matter is supervised by and/or carried out on behalf of the company, etc.

Yet again, the rules are still new and still evolving. But with the passage of time, we are learning to adapt, and have seen the rules take on some of the interpretations above. Certainly, those seeking to utilize the Intra-Company Transfer provisions afforded by Canadian law must continue to be very cautious in their considerations under the new guidelines, to avoid frustration or complications.

On Friday, January 23, 2015, Benjamin Kranc will be speaking at the Annual Conference of the Human Resources Professionals Association (HRPA) in Toronto. His topic will be:

     A Passport to Effective Foreign Worker Recruitment:
     Understanding Canadian Immigration in a post-RBC World

For further information, please see the HRPA web site listing at:

     http://www.hrpa.ca/Conf2015/Sessions/Pages/SessionDetails.aspx?SessionScheduleId=114

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.

In addition to the myriad of continuing changes to Canada’s Temporary Foreign Worker Program (TFWP) made available to the public, there is a significant amount of unpublished information ‘below the surface’. Failure to be aware of what Employment and Social Development Canada (ESDC) didn’t tell you can lead to devastating effects in the course of seeking to hire a foreign worker.  (ESDC administers the TFWP along with Immigration Canada.)

Before hiring a foreign worker (with few exceptions), an employer must seek a Labour Market Impact Assessment (LMIA) to substantiate why a Canadian is not being hired. The program is administered by ESDC, but operated by Service Canada. Here are some crucial, and unpublished, factors that ESDC has indicated are to be considered when seeking an LMIA:

• An LMIA application can be submitted only after the four week recruitment period concludes. That is, although the LMIA process may take longer than four weeks, an employer cannot launch an application, expecting the recruitment to be concluded and provided to Service Canada before the application is considered.
• Ads for LMIA purposes must post wages. The internal directives indicate that the wages can be posted as a range, but the low end of the range must meet the prevailing wage, that would ordinarily be the minimum salary possible for the position in that location.
• ESDC dictates that recruitment for LMIA applications needs to be carried out on the applicable national or provincial job bank, plus two additional methods. Examples of the two additional methods are given, such as general employment web sites, specialized web sites for specific industries, social media web sites, etc. What is not made public, however, is that each of the two additional methods must be a different type of recruitment. That is, only one of the two postings can be to a general employment web site (i.e. you can’t use both Monster AND Workopolis to satisfy the requirement for two postings), only one of the two posting can be to a social media site (i.e. you can’t use both LinkedIn AND Twitter to satisfy the requirements for two postings), etc. Certainly, this would not be obvious from the government’s publicly-provided information.
• The employer must post all mandatory information directly in the advertisement.  A link to the information is not acceptable.
• The requirement to target underrepresented groups may be satisfied through the use of web sites such as Kijiji, however, the ads must be explicit that underrepresented groups are encouraged to apply.
• There may be occasional leniency in allowing an employer not to disclose certain information in an ad (e.g. salary, company name). This may occur, for example, in high profile occupations (e.g. senior executive), or for competitive reasons. ESDC (via Service Canada) may allow this, if the employer can demonstrate that the advertised position should be exempt from including any of the listed mandatory job advertisement information. Recognize, however, that an employer seeking an LMIA will not know if this position has been accepted until the application is adjudicated.
• Specific geographic regions may still have leniency in waiving recruitment requirements, but this is not fully articulated. If the prior LMO regime is to be instructive in this regard, consideration could be given to waive the recruitment requirements when the following are present: (a) a high salary (e.g. $200,000/year), (2) very high skilled (e.g. NOC 00), (3) specialized nature of the position (e.g. international knowledge); and (4) recruitment efforts will not likely result in finding the expertise being sought. Yet again, the employer will not know if the position in the LMIA application is accepted until the application is adjudicated.
• Head-hunters can be considered as one of the additional methods of recruitment, but the employer must demonstrate that the head-hunter meets the requirements otherwise set out, by providing proof of its efforts.  As well, the advertisements must state the employer’s name and for job advertisements where a CRA business number is required by the employer’s business number.
• ‘Spin Off’ advertisement does not constitute an appropriate method of recruitment. That is, the employer must post the ad, and cannot rely on a web site which has automatically uploaded information from the original posting. As such, if an ad appears on Monster because Monster automatically reposted it from an industry-specific web site, the Monster ad does not count. (The Monster ad would count if the employer itself posted the ad on Monster).

Actions to Take:

Changes to the TFWP are continuing. Employers must ensure that they are constantly updating their knowledge base vis-à-vis the TFWP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.