Author: Kranc Associates

The Background

Ever since the ‘Royal Bank Scandal’ in 2013, the Canadian immigration system continues to implement further guidelines, restrictions, requirements and constraints for employers  hiring and employing foreign workers. Many of the changes are with regard to ‘Labour Market Impact Assessments’ (LMIAs, formerly LMOs), under the jurisdiction of Employment and Social Development Canada (ESDC), but they all ultimately impact the ability to recruit and retain foreign workers.

Previous Changes to the System

Among other measures implemented to date, the test for recruitment requirements has been tightened, and the tests have been altered (from an occupational level division, to a wage based division); application fees have been raised from $275 per position to $1000 per position; caps have been placed on the number of foreign workers that can be brought to Canada in certain categories;  foreign employers are restricted from hiring certain foreign workers in areas where the unemployment rate is six percent (6%) or higher; and the list goes on.

What’s Changing Now

With the volume of changes brought about (not to mention the numerous changes made previously in 2013 and 2014), it seemed that at least the dust was finally settling when the latest round of changes were announced in June 2014. Apparently, there’s still plenty of dust.

The government announced last week that it was considering yet further measures. Though these are still not finalized, the following are just some of the upcoming changes that employers can expect to face soon in their desire to hire and retain foreign workers:

• Bans on employers for non-compliance, currently fixed at 2 years across the board, will now be varied and could range from 1 year to 10 years.
• Monetary penalties will now be imposed on violations. The monetary penalties will vary based on various factors including the nature of the violation, the severity, and the size of the employer. Penalties can range up to $100,000 per occurrence.
• Any violation of conditions under the program could lead to a ban or monetary penalty. Beyond items like meeting wages and working conditions approved, these would now include:
  • A determination with regard to the genuineness of the job offer
  • Deficiencies in reporting and document retention, and
  • A determination of non-cooperativeness during inspections.

Among other concerns in this regard, the degree of subjectivity, and
therefore the government’s discretion, in such determinations plays a
much greater role, notwithstanding a proposed review process which is
to be made available.

• Corrective action for ‘good faith’ errors, previously allowed, may no longer excuse the imposition of one of the permitted sanctions (bans and/or monetary penalties)

What Employers Need to Know and Do

Expect these proposals to be implemented, and implemented soon. The government is accepting submissions until only October 16, after which the proposals will be implemented, with or without any modification. Employers who wish to make submissions to the government before the deadline are encouraged to do so, but in any event, employers should make themselves aware of the full gambit of requirements under the proposed scheme, and commence action forthwith to ensure that they are both in current compliance, and that they have systems in place to ensure ongoing compliance.

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

The News

Canada has announced that it has entered into yet another free trade agreement – this time with South Korea, and this time, with some ‘new and improved’ immigration provisions. These beneficial provisions, detailed below, could have significant impact on the ability of Canadian companies to retain skilled workers for positions which cannot be filled by Canadians or workers from other countries.  Among other features of the agreement (and as also detailed below), enhanced professional categories means that Canadian companies can now seek foreign workers in areas that would typically not be allowed to work in Canada, without a Labour Market Impact Assessment (“LMIA”). [The LMIA process is used to prove that no Canadian is available for a position – it is a long, expensive, and cumbersome process.]

Background

Canada has in place free trade agreements (that include enhanced immigration provisions), with:

• The United States
• Mexico
• Chile
• Colombia, and
• Peru

Canada is also party to the General Agreement on Trade in Services (“GATS”) which also has enhanced immigration provisions for signatory countries.

Further still, Canada is finalizing implementation of yet another free trade agreement with the European Union, and negotiations are in process for free trade agreements with other countries as well.

Each of these bilateral agreements or international instruments has provisions that allow for eased entry for various types of scenarios. Each agreement is different, but if relevant, each agreement can be referenced as a legal tool to get needed foreign workers to Canada.

New Provisions and Benefits

The new Canada-South Korea Free Trade Agreement calls for enhanced immigration considerations for:

• Business Visitors
• Intra-Company Transferees
• Traders and Investors, and
• Professionals

Though each of these may have benefit for Canadian companies seeking to fill positions, the categories of consideration are similar to provisions in existing free trade agreements. (Counsel should be sought to ensure compliance in the use of any free trade agreement, given that there are indeed differences in between the agreements.)

However, there are important new features and/or nuances in this agreement which are different from other agreements, and which may greatly benefit Canadian businesses in their need to fill positions in Canada. These are some highlights of the agreement:

• The ‘ordinary’ professionals include various scientists and business professionals similar to other agreements, however, there appear to be two unique categories which may be very important, and which are much more difficult for workers from other countries. They are:
  • Computer Programmer
  • Software Engineer/Designer

    Whereas other agreements may provide for systems analysts (also allowed here), this expansion is a welcome addition for the IT industry.

• There is a new type of ‘professional’; that is, “Independent Professionals”. These professionals can be engaged to provide service in Canada on their own. The categories for such professionals are:
  1. Architect
  2. Engineer
  3. Management Consultant, and
  4. Veterinarian
• The intra-company transfer provisions specifically provide for management trainees. This seems to be a (welcome) departure from recent pronouncements that in intra-company applications generally, people who require training are not qualified as intra-company transferees.
• Intra-company Transferees, Professionals, and Business Visitors do not require labour certification tests (e.g. licensing)
• For seemingly the first time, the agreement indicates that Canada will normally accept oral declarations from business persons as to the place of business and accrual of profits, and that if further proof is required, a letter from the employer should normally be sufficient proof.

Impact

There are certainly many further issues and nuances which need to be canvassed if an organization wishes to benefit from the agreement, but the above factors are important advances in the nature of temporary immigration entry. If a Canadian company has close ties with South Korea, OR if a Canadian company wants to fill positions which may be hard to fill from other countries, the Canada-South Korea Free Trade Agreement is a welcome new legal tool.

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

Citizenship and Immigration Canada (CIC) has announced that effective January 2015, Canada’s permanent residence system will undergo a complete overhaul, and will work on an ‘express entry’ model. This will have serious ramifications for foreign workers wishing to become permanent residents, as well as for employers for whom they work, as set out below.

Background

Currently, there are essentially three programs by which skilled workers can seek permanent residence (in addition to provincial programs). Briefly, these programs 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.

Within these programs, applicants make applications, and they are processed on a first in/first out system. The government does set quotas per year in each category, as well as ‘sub-caps’ within some categories (e.g. X number of engineers within the FSW), but the process is applicant driven. There may be various positive or negative aspects to each of the systems, but their outcomes have been based on the use of an established set of parameters, against which the facts of the case could be tested. This has created an element of certainty in the system.

The New ‘Express Entry’ Model

Under the new system to be implemented in January 2015, the process will cease to be applicant driven. The process will be government driven. Full details are not yet available, but the process would require applicants to file a profile, which signifies to the government that they are interested in permanent residence, and which would set out their backgrounds. CIC, on grounds which are also not yet clear, would then select those applicants it thought were ‘highest ranked’ and who had arranged employment (or a provincial nomination). These applicants would be invited to apply for permanent residence, and would have 60 days to file their applications.

No longer will applicants be processed in a first in/first out system, and no longer can applicants know that they have met the criteria through clearly established guidelines. Rather, as noted, the government will choose from among the pool of prospective applicants, who it wants to process. Further, applicants who are not invited to apply for permanent residence will be removed from the pool of potential applicants after 12 months.

Impact

This new system creates uncertainty. No longer can an employee know if he/she can become a permanent resident, and no longer can an employer know that he would have the ability to retain a desired employee. Though further details may clarify some of the issues, it would seem apparent that the new system gives CIC a large degree of discretion, and as such, the inability for employers/employees to plan for their immigration issues.

What Prospective Applicants and Their Employers Should Do Now

Given the doubt and insecurity of the new system, the net effect of the above is that it is better to utilize the certainty of today’s system, rather than take a chance on the uncertainty of the future system. If a Canadian company has a non-Canadian employee on a work permit, and that employee intends to seek permanent residence, or if indeed the company wishes to secure permanent residence for that person, preparation and submission of the application should occur now. January 2015 is not that far away, and failure to lodge the application before then could mean the inability to seek permanent residence. There are various preparations involved in the filing of permanent residence cases, including the need for an English test (and quotas must be considered), so it is not too early to start.

Employers and employees alike should take necessary measures now, if they wish to secure permanent residence for the future.

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

Background

Canada’s immigration system allows students in Canada to work after their studies are complete (subject to certain qualifications). Though not our direct topic for today, this program is commonly known as the “Post-Graduate Work Permit” (PGWP) system, and is the precursor to the discussion below.

Canada has to-date also provided people completing their work term pursuant to their PGWP (that is, people who have completed their studies AND completed their allotted time under their PGWP), a further benefit. The benefit was that if the worker wanted to work in Canada beyond their PGWP, their employer could seek a Labour Market Impact Assessment (LMIA – previously a Labour Market Opinion) without the need for recruitment, as otherwise required for an LMIA. [Though not an official term, people in this situation are sometimes referred to as POST Post-Graduate Workers.] Recruitment can be a lengthy and onerous task, the results of which can greatly impact an LMIA application.

For employers, this was an important vehicle to training post-graduate students and having them grow within their companies, rather than have to start all over again every few years. For employees, this was an important way for them to continue to work in Canada, perhaps leading up to permanent residence.

What Has Changed

Recently, Employment and Social Development Canada (ESDC – Canada’s ‘Labour Department’) mandated that employers seeking an LMIA for the hiring of Post Post-Graduate Workers, would no longer benefit from the recruitment exemption. This means that the hiring or rehiring of a Post Post-Graduate Worker must be conducted in the same way as required for any position to be filled in Canada. That is, the employer must recruit for 4 weeks, show that it could not find a qualified worker in Canada, and otherwise start the process from scratch – as if the Post-Graduate Worker was never there.

What is the Impact of the Changes:

As noted, the ability to easily secure an LMIA to (re)hire a Post Post-Graduate Worker was an important way that employers could take skilled graduates of Canadian learning institutions, have them work and be trained pursuant to a PGWP, and then have them grow with their company. This was a win-win whereby the employee gained experience, and the employer gained the ability to seek qualified workers and have them develop in their companies, rather than have to restart their searches every few years.

Employers and employees must now recognize the need to access the LMIA system in a manner no different than any LMIA-requiring job. Given notably that this means the need for recruitment and a longer LMIA application process, employers should start their processes early, to ensure that the employee can continue to work seamlessly, moving from Post-Graduate Work Permit to POST Post-graduate Work Permit. Indeed, employers must recognize that they may not be able to continue to employ the foreign graduate/worker in question, if other qualified candidates are found – less-experienced though they may be.

Actions to Take:

Employers need to ensure that they recognize the new system in place and take action to carry out an LMIA application in a timely manner, long before the expiration of a Post-Graduate Worker’s current PGWP (perhaps 6 months in advance). Employers must also be able to justify why they should be allowed to retain the employee in question, rather than another qualified candidate.

Given the impact of the pronouncements, it is strongly suggested that employers affected consider their options forthwith.

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

Application Management Strategy/
Skilled Worker Overseas Stream Paused

The Manitoba Provincial Nominee Program (MBPNP) provides for various categories of applicants to seek permanent residence in Manitoba. Among the categories of applicants are skilled workers in Manitoba, as well as applicants overseas. These are separate groupings, each with its own requirements and limitations. In 2015, the government will be implementing an ‘application management strategy’ to restrict the number of applications received from overseas based on the quota numbers which it is permitted under agreement with the federal government.

In the interim, while there remains no limit for the grouping of workers already in Manitoba, the province has received more than enough applications to fill its quota for skilled workers overseas. It is therefore disallowing the submission of further applications effective August 1, 2014. The category will not reopen until January 1, 2015, at which time the new management strategy will be implemented to limit the number of applications received, rather than allow the backlog to grow.

What Has Changed/What Will Change

Previously, applications for the MBPNP from eligible workers overseas would be received year-round, and applications that were received after the yearly quota was filled would have their applications queued for the re-opening of the quota. This would create a backlog of cases, as the number of applications in queue continued to grow. In addition to cutting off applications in the current fiscal year effective August 1, 2014, noted above, the government will at all times in the years beginning with 2015 limit the number of applications to those which it can intake for a given year. Applications received thereafter would have to refile in the following year.

Impact and Response

The impact of the above-measures will of course make it important to prepare and time the submission of applications carefully.

In the short-term, anyone currently seeking to utilize the MBPNP from overseas should file their application immediately, and no later than July 31, 2014.

In the long term, applicants will need to ensure that they properly prepare applications and submit them in a timely fashion, before quotas fill. Given that quotas, forms, requirements, etc. can change, it will become imperative to keep up-to-date to ensure that a proper application, filed in accordance with then applicable requirements, will be ready to be filed when the time is right. Otherwise, a great deal of time, energy, and cost may have been wasted, and the ability to utilize the program may be significantly delayed or even eliminated.

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

On top of the seemingly never-ending changes to Canada’s Temporary Foreign Worker Program, comes a new twist. In order to hire a foreign worker, an employer must (subject to only a few exceptions) conduct a recruitment campaign pursuant to strict guidelines. The employer must then substantiate the need to seek a foreign if no Canadian could be found pursuant to the recruitment campaign. This is the basic tenet of the Labour Market Impact Assessment system (until recently called the Labour Market Opinion program). Among the recruitment guidelines is a requirement to post jobs to Canada’s Job Bank (except in some provinces that have their own job banks). The way to carry out such postings has changed drastically, and employers must be prepared.

The Old System

Until now, when posting on the Job Bank, employers input information about the employment opportunity, including:

• The applicable NOC code>   NOC is the National Occupational Classification, which categorizes all jobs by type of work and level of seniority within that type of work. (e.g. in the legal field you may have legal secretary, paralegal and lawyer in ascending order).>   The NOC code along with the place of employment will determine salary

• Other information about the job duties, etc.

These factors were key, because not every job fits into a nice pigeon-hole, and sometimes it was necessary to ensure that the NOC code used was appropriate for the opportunity in question. The consequences of using different NOC codes can have a great impact on the process, and notably the appropriate salary.

The New System

Recently, the government has altered the way that jobs are posted to the Job Bank. They have reduced or indeed eliminated the degree of flexibility that an employer has in posting the job to the Job Bank. Essentially, the system forces the employer into a specific NOC category, no matter what nuances there may be to the type or level of the job. Under the new scheme:

• An employer must choose from a pre-set list of general job categories (which are NOC based), which further filters down into a specific job within the broader NOC category.>   e.g. An employer looking for a Botanist would log on to the Job Bank, and choose from a drop down menu of general categories (which are general NOC categories). Assuming the employer gets it right, he/she would choose the ‘Biological Scientists’ category. The employer would then be given a list of all job titles within the NOC, and presumably Botanist will appear. [Note that failure to find the correct NOC/job title may cause an inability to properly post the matter leading to further delays or refusals.]

• The system, based on the foregoing and the location of the position, will automatically set the minimum wage

Significance and Impact

This change drastically shifts the ability to characterize occupations based on their reality vs. based on how they are slotted by a rigid government computer program. It was certainly useful, and indeed legitimate and appropriate, to seek to characterize a job in various ways, given the nature of that particular position. What happens, for instance, where a job has two parts to it, one of which is in NOC X and the other in NOC Y? This alteration to the system is dramatic, and changes the ability to offer appropriate salaries that legitimately do not match the pigeon-holed value assigned by the government.

What Can Be Done

Certainly, it is important for employers to research in advance the anticipated characterization that the government will make for a position that the employer is seeking to fill. The employer can then better understand, and prepare for, the impact of the NOC and salary classifications. Where there is a truly unique/unusual circumstance, it may be necessary to seek Service Canada advise prior to lodging the Job Bank posting – but Service Canada are not so apt to ‘pre-screen’ issues. This is certainly a development which employers should take into consideration when seeking to access the Temporary Foreign Worker Program.

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

Expedited Visa Processing in India

Citizenship and Immigration Canada has announced the launch of the CAN+ program in India. This program allows people who have travelled to Canada or the United States in the 10 years prior to the date of application to have their visa applications processed on an expedited basis. There is no special application form or action to take – the Visa Post will automatically screen for eligibility. However, based on experience in other countries, applicants may be able to apply without the need for the same degree of extensive support documentation as previously required (the Visa Post’s web site should be consulted for ongoing updated instructions in this regard). Where the Visa Post determines that a person is eligible for the program, the application will be processed in accordance with the program. Expected processing time for a CAN+ visa is seven (7) days.

What Has Changed

Previously, there was no ‘fast track’ based on the criteria noted above and all applications were processed on a First In First Out basis.

Impact and Response

For Indian individuals, or corporations who require Indian nationals to travel, this will certainly expedite processing. No specific action is required by an applicant, but unless otherwise notified, it would appear prudent not to reduce, or fail to provide, the supporting documentation ordinarily provided in such applications to date. No detailed instructions that would reflect a change to the document checklist has yet been released in this regard. Certainly as well, in addition to the value of increased speed in and of itself, this program will allow for improved planning by corporations and individuals concerned.

Further, in view as well of the recent but separate change to the nature of visas issued (10 year multiple entry as the norm), combined with the speed of the program above, long term planning will also be improved.

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

Processing Procedures for Temporary Immigration Matters

Over the past few years, intake processing of temporary immigration applications (including work permits, study permits, and temporary resident visas) at Visa Posts outside Canada has changed drastically.

What has become the norm is that Visa Posts (which include Embassies, Consulates and High Commissions) delegate initial temporary immigration application intake to ‘Visa Application Centres’, or VACs. These VACs are external offices entrusted to streamline the flow of applications into the Visa Post by filtering the appropriateness of the application, and supporting documents. Once the VAC has received the application and is satisfied that it is properly completed, it then passes applications on to the Visa Post which reviews and adjudicates the matter. (In some cases, the VACs are unable to properly deal with cases that our out of the ordinary – which causes its own issues, and which is a separate topic of discussion.)

Meanwhile, over the past few years, it has also become possible to submit the same types of applications online. In such cases, the VAC has been completely bypassed with regard to any aspect of the particular application.

The benefit of one method over the other will depend on the specific case, and even with the above procedures, the law has always supported the notion that an application could always still be made directly to the Visa Post, if so desired.

Summary of What has Changed

It would seem that as time goes on, the VACs are taking over even greater processing responsibilities. Notably, until now, with an online application, when approval was granted and passports were requested, the passports could and would be forwarded to the Visa Post for finalization. However, recently, some Visa Posts are advising applicants that have filed their cases electronically to submit their passports for finalization to the VAC rather than directly the Visa Post. This is a break from previous protocol, which dictated that if the VAC was not involved in the initial intake, it would also not be involved in the balance of the case. Indeed, applicants are advised that submitting their passport directly to the Visa Post rather than the VAC in such situations could mean that the passport will be returned to the applicant without having been processed – which will of course be very frustrating, and in some cases, can be a serious issue.

Impact and Response

At this time, not every Visa Post appears to have adopted this policy, but it seems to be happening more and more. As such, it is very important to verify with the relevant Visa Post (usually with a simple online check) whether passports can or should be sent to the Visa Post, or to the VAC. Failure to adhere to the new requirements will cause delays.

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