Category: ImmPulse™ Newsletter

Generally speaking, employers hiring foreign workers in Canada must pay such foreign workers at least the ‘prevailing wage’ for that occupation in that location. These prevailing wage figures are set by the Canadian government, and specifically Employment and Social Development Canada and the Canadian Job Bank. (Prevailing wages by occupation and location can be determined at https://www.jobbank.gc.ca/explorecareers?select=ec-wages. Each occupation has a high, low, and median wage – and it is the median wage which is taken as the prevailing wage.)

Recently, and as it does from time to time, the Canadian government updated its prevailing wage information. Employers must therefore make sure they are checking for current prevailing wage figures before lodging a Labour Market Impact Assessment (LMIA) application or otherwise hiring a foreign worker subject to prevailing wage guidelines. Moreover, if an employer is currently recruiting in the expectation of lodging a possible LMIA application, and using a now obsolete wage, the employer may need to recommence recruitment to reflect the newer prevailing wage. Further still, employers already employing foreign workers may need to ensure that foreign worker salaries are brought in line to match the new prevailing wage guidelines.

Compliance with immigration-related guidelines (including, for example, prevailing wage in ongoing hire/rehire situations) is an ongoing matter, and must be monitored throughout the life of a foreign worker matter – from inception of advertizing through conclusion of employment (and records to verify compliance must be kept for six years).

Employers employing, or set to employ, foreign workers in Canada should consider the issues above vis-à-vis any relevant situation that may be impacted.

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

There has been a great deal of media coverage in recent days, (and in the weeks and months before that) about the NAFTA negotiations, and the now (tentatively) renegotiated USMCA (United States, Mexico, Canada) agreement. Though much of the media relates to trade in various commodities, and other free trade issues, the USMCA, and its NAFTA predecessor, also have immigration provisions. In that regard, a few notes:

• Firstly, and perhaps most notably, this is not a final agreement. This agreement must now be ratified by each of the member countries’ legislatures. This could take a number of months, and actual implementation could take a further number of months thereafter. For now, NAFTA remains in force, and all aspects of NAFTA, including the immigration aspects, continue to operate as they have until now.
• In terms of immigration provisions, the big change is: nothing really to speak of! A comparison of the immigration provisions reveals that, except for some tweaking in the verbiage, the basic elements of the relevant programs remain the same. This includes the four primary components:
  • Business Visitors
    • Americans and Mexicans entering Canada for work purposes, but not entering the labour market.
      • This is sometimes harder to interpret in real life than this simple statement would indicate, but this is the basic idea.
  • Intra-Company Transferees
    • Senior managerial and ‘specialized knowledge’ Americans or Mexicans coming to Canada to work with a Canadian affiliate of their current U.S. or Mexican employer.
      • There are numerous details here about prior work history, nature of ‘specialized knowledge’, etc., but again, this is the basic idea.
  • Professionals
    • Americans or Mexicans working in certain occupations.
      • There is a long list, but some notable categories are: Engineers, Accountants, Computer Systems Analysts, Management Consultants.
      • There are issues as well of professional qualification.
  • Traders/Investors
    • Americans or Mexicans who, on their own behalf, or on behalf of a corporation, are coming essentially to establish, or invest in, a business in Canada.

Over the coming months, whether by interpretation, or by renegotiation/revision  through parliamentary processes, etc., we could still learn of some differentiation to be made between the agreements or portions thereof, but for now, at least from the Canadian point of view, we do not anticipate any material change to the immigration process under the new USMCA agreement. (It may be of interest to note that the text of the agreement in its current form indicates ‘Subject to Legal Review for Accuracy, Clarity, and Consistency; Subject to Language Authentication’. However, this would not appear to indicate that any substantive changes are expected – only that, now that the big picture negotiations are over, the parties leave open the possibility of some further tweaking as they fine tune the final product.)

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

The International Experience Class (IEC) offers young people from various countries the opportunity to work in Canada under a relaxed work permit scheme. There are three types of work permits available under the IEC, which are:

• Working Holidays
  • Open, non-employer-specific work permits
• Young Professionals
  • Employer-specific work permits for people to work in an area that contributes to their professional development, and
• International Co-op Internships
  • Employer-specific work permits for placements for students in their field of study

In each case, there are various issues which can include, among other matters, country of origin, funds, and age. There are also procedural issues relating to pooling and selection.

For citizens of Australia, IEC work permits were available for persons only until age 30. However, Immigration Canada has now announced that agreement has been reached with Australia, and the maximum age is being increased to 35.

This will of course benefit prospective Australian employees, but may also benefit prospective Canadian employers who wish to hire Australians under the IEC.

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

As reported in earlier editions of ImmPulse™, Employment and Social Development Canada (ESDC) has been partnering with the government of Alberta to restrict occupations for which Labour Market Impact Assessments (LMIAs) will be granted in in that province. These restrictions are placed on occupations specified based on findings that there is no labour shortage in those fields, and as such, foreign workers should not be hired. (See, e.g., http://www.kranclaw.com/2018/02/further-updates-to-alberta-no-lmia-list/.)

Since originally introducing restrictions in May 2017, the list of restricted occupations has changed a number of times. The government has now revised the list yet again, and we wish to ensure that ImmPulse™ readers are updated in that regard. Given the frequency of the changes, it seems simplest to provide a link to the current list of restricted occupations, and we will advise if the list changes again. The current list of restricted occupations, for which LMIAs in Alberta cannot be sought, is found at https://www.canada.ca/en/employment-social-development/services/foreign-workers/refusal.html#h2.2-h3.2.

Please refer to that list, and note, as also previously indicated, that employers impacted by this program, (a) can seek assistance through the Alberta Employer Liaison Service (see http://www.albertacanada.com/opportunity/employers/employer-liaison-service.aspx), and (b) should not be impacted in situations where a foreign worker is coming to Canada pursuant to an LMIA-exempt category.

Those impacted should seek proper advice for their particular needs.

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

For many work permit or other temporary Canadian immigration applications (and for all permanent residence applications), a police clearance certificates (PCC) is required. For temporary purposes, this typically occurs when an applicant for entry to Canada is potentially inadmissible due to a prior criminal history, and a form of ‘waiver’ is sought to enter the country. There are temporary waivers, called Temporary Resident Permits (TRPs), and permanent waivers, referred to as ‘Rehabilitation’.

Until now, for the purposes of U.S. PCCs, the only option was to secure an FBI police certificate through the mail, or in some cases (for U.S. citizens and permanent residents), through an FBI approved channeler. [Note that in addition to FBI clearances, in some situations, U.S. state clearances may also be needed.)

Effective immediately, in addition to the already existing options, Immigration, Refugees and Citizenship Canada (IRCC), and the Canada Border Services Agency (CBSA), will accept an electronically submitted ‘Identity History Summary’ (IHS) from the FBI for the purposes set out above, regardless of current place of residence or citizenship.  Further information about the change in allowable formats can be found at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2018/653.html, and information about the IHS system can be found at https://www.fbi.gov/services/cjis/identity-history-summary-checks.

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

Background

Canada’s Criminal Code sets out criminal offences in Canada, and dictates the potential punishments for those offences.

Canadian immigration law then creates classes of inadmissible entrants to Canada based primarily on distinctions in prospective punishment levels as set out in the Criminal Code. Note that indeed, subject to limited exceptions (discussed below), it is the prospective punishment that an offence could yield, not the actual punishment received, which is generally considered for immigration purposes. As such, who is, and who is not, inadmissible to Canada, depends on the prospective punishment that an offence could yield pursuant to the Criminal Code (even if the crime was committed abroad). Further, various ‘waivers’ available for overriding inadmissibility will also depend on the prospective punishments set out.

The primary dividing line of prospective criminal punishments that impact immigration matters is potential terms of imprisonment of 10 years. If the prospective punishment for a crime is less than 10 years, it is considered ‘ordinary’ criminality. If the prospective punishment is 10 years or more, it is considered ‘serious criminality’, and, as noted, there are consequences to falling into one camp or the other. [There are other issues and distinctions, but this is the primary issue for the purposes of this article.]

For example, someone who has been convicted outside Canada of not more than one offence, which offence in Canada would be punishable by a term of imprisonment of less than 10 years, would be inadmissible based on ordinary criminality only, and, after 10 years, would be ‘deemed rehabilitated’, and the problem would essentially be erased. This deeming provision is not available to those in the serious criminality category.

Issue of Specific Concern

One of the most common offences that causes inadmissibility under Canadian law is some form of ‘drunk driving’. Though this takes on different names in different jurisdictions, it is often referred to as ‘DUI’ – Driving Under the Influence, or in some cases, ‘DWI’ – Driving While Impaired/Intoxicated. The offence is found in Canadian Criminal Code section 253, with the punishment set out in section 255.

What’s Changing

Until now, the maximum penalty for a DUI under Canadian law was a term of imprisonment of 5 years. Based on the classifications highlighted above, this put DUI in the category of ordinary criminality.  It meant, among other things, that a person would be deemed rehabilitated after 10 years from the conclusion of any sentence.

However, Canada has just passed an amendment to the Criminal Code making the maximum punishment for this offence a term of imprisonment of 10 years. Based on the classification of offences by the immigration law system, as noted above, this changes the characterization of the offence to serious criminality, and means that deemed rehabilitation is no longer available for this offence.

Other Implications

A few additional notes about the change in law:

• Notwithstanding the prospective punishments, if a person has been convicted in Canada, and actually served more than 6 months for the offence, he or she falls within the ‘serious’ criminality provisions, notwithstanding the length of potential sentence, which is otherwise the test.
• The above focuses on ‘Foreign Nationals’ – those who are not Canadian citizens or Permanent Residents. The changes, however, also impact Permanent Residents in that a single ‘ordinary’ criminal offence may not lead to deportation, but a conviction for a matter of ‘serious’ criminality could – therefore, a DUI for a Permanent Resident is now a much more serious issue. [Yet again, there is more complexity to this, but Permanent Residents are certainly at greater risk based on the change of law.]

What To Do

For any prospective traveller to Canada who has previously entered Canada without an issue (as well as for employers seeking to have Foreign Nationals visit or work in Canada), it is imperative to be aware of the reality that a prior DUI which may until now have been erased, will soon be ‘un-erased’; that is, that person, previously admissible due to deemed rehabilitation, is now inadmissible. Certainly further, any person not previously having travelled to Canada also needs to be aware that a prior DUI has more serious consequences. Persons finding themselves in a position of possible inadmissibility should take action to determine whether they might need to apply for rehabilitation (rather than be deemed rehabilitated), or whether, in some cases, they may be able to, and wish to, seek, a Temporary Resident Permit (TRP), which is a short-term override or waiver of criminal inadmissibility.

Please note that there are further complexities that can arise on criminal inadmissibility issues generally, including distinctions between Criminal Code classifications of indictable and summary convictions (which, despite attempts to so characterize them, do not equate to U.S. felonies and misdemeanours), considerations of commission vs. conviction of an offence, the implication of multiple crimes, and more. Proper counsel should be sought.

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

In addition to federal immigration programs, each province of Canada administers a nominee program (or, in the case of Quebec, a selection program). These programs allow provinces to determine immigration nomination/selection criteria which they consider beneficial to their specific provinces. (In each case, applicants must still meet federal admissibility and related provisions.)

The Province of Alberta has a long-established nominee program. That program has now been revamped and revised, and a new stream has been launched – the “Alberta Opportunity Stream” (AOS).  Other than the Alberta Self-Employer Farmer Stream, the AOS will become the only Alberta nominee program, incorporating all previous ‘skilled worker’ and related programs. (Applications submitted prior to June 14, 2018 under the previously-existing Employer-Driven Stream and Strategic Recruitment Stream will continue to be processed under those streams as per their rules and requirements.)

Under the AOS, a broader spectrum of foreign workers who work in Alberta will be allowed to seek nomination (and permanent residence). The category will be ‘filtered’ by the implementation of an ineligible occupations list. Any occupation not on the ineligible list, will, by definition, be eligible for the AOS. The ineligible occupations list can be found at http://www.albertacanada.com/opportunity/programs-and-forms/ainp-aos-ineligible-occupations.aspx.

There are some further caveats, including:

• some considerations will generally make a possible application ineligible – such as, situations where applicants are self-employed or seasonally employed.
• Post-gradate Work Permit holders will not be able to apply if their occupation is on a separate list of occupations found at https://www.canada.ca/en/employment-social-development/services/foreign-workers/refusal.html#h2.2-h3.2.
  • International students who have gradated from Alberta designated learning institutions will be able to access the AOS only after 6 months of work in Alberta in an occupation related to their field of study. (In turn, they will need to have previously secured a Post-Graduate Work Permit, in order to achieve their 6 months of work.)
• In addition to the occupational issues which are the focus of the program and this article, there are still other elements (some federally dictated) which must be considered including language, education, and others.

Please recognize as well that Alberta (as every province) has a limited number of nominations which they can make each year, so nomination can be delayed or deferred depending on inventories and backlogs.

For people working in Alberta who wish to become permanent residents, the new AOS provides a favourable option. This article provides only a summary of the program, but each case must be looked at individually for proper determination and consideration of all program requirements.

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

The International Experience Class (IEC) provides young people from various countries the opportunity to receive a Canadian work permit, allowing them to work in Canada for a limited period of time (typically one year, in some cases, two years). Currently, 33 countries participate in the program. [Note that similar opportunities exist for Canadian citizens in the countries that partner with Canada for this program.]

There are three types of IEC programs, and the availability of each program depends on the arrangement with the applicant’s country of citizenship. The three programs are:

• The Working Holiday program
  • This program provides for an open work permit for qualified applicants, typically aged 18 to 35 (in some cases, 30)
• The International Co-op program
  • This program is designed for post-secondary students, seeking a work placement/internship as part of their academic curriculum. It requires an offer of employment.
• The Young Professional program
  • This program is designed for post-secondary graduates to gain work experience in their fields, and requires a job offer from a Canadian employer in a related field.

(Please note that this is a brief summary only – there are various considerations including quotas, pooling procedures for application, and otherwise, that would need to be considered for any particular case. A listing of program details, and eligible countries can be found at https://bit.ly/2M0A6Zm.)

Starting in 2019 (for which registration will begin in late 2018), citizens of yet another country will be entitled to access the Canadian IEC:

• Portugal

All three types of IEC work permits will be available to qualified candidates.

For employers, this provides an opportunity to secure a worker from Portugal where, otherwise, the case may have required a Labour Market Impact Assessment, or qualification in another work permit category. Similarly, prospective Portuguese workers will be able to take advantage of this program, where qualified, to secure temporary employment in Canada.

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

In June 2017, Immigration, Refugees and Citizenship Canada (IRCC) implemented the ‘Global Talent Stream’ (GTS), which is a streamlined system for corporations to secure foreign workers in certain innovative sectors, or high-growth fields. (See http://www.kranclaw.com/2017/06/canadas-global-skills-strategy-implemented-today/ for details.)

The GTS has two branches. The first branch (Category A) is for ‘innovative firms’, who secure a recommendation from an approved agency.

The second branch (Category B) is based on the occupation for which a foreign worker is sought, in accordance with a list of approved occupations.

IRCC has now added three new occupations to the Category B list, which are:

       NOC   Occupation

• 0211    Engineering Managers
• 0212    Architecture and science managers, and
• 2161*  Mathematicians and statisticians
  • (*subset only – *Positions for actuaries or related occupations are excluded)

The full list of eligible GTS occupations is therefore now:

• 0211    Engineering Managers
• 0212    Architecture and science managers
• 0213    Computer and information systems managers
• 2147    Computer engineers (except software engineers and designers)
• 2161*  Mathematicians and statisticians
  • (*subset only – *Positions for actuaries or related occupations are excluded.)
• 2171    Information systems analysts and consultants
• 2172    Database analysts and data administrators
• 2173    Software engineers and designers
• 2174    Computer programmers and interactive media developers
• 2175    Web designers and developers
• 2283    Information systems testing technicians
• 5131*  Producer, technical, creative and artistic director and project manager – Visual effects and video game
  • (*subset only – The position must require a minimum of three years of experience in the visual effects, video game or animation industries in one or a combination of the following roles: producer, technical director, creative director, artistic director or project manager, senior coordinator, department manager, with three years of job experience in at least one or more of the following skills relevant to the visual effects, video game or animation industries: surfacing and look development; character or simulation rigging; matte painting; managing budgets or teams; or technical pipeline development and application for visual effects, video games, or animation production.)
• 5241*  Digital media designers
  • (*subset only – The position must require a minimum of three years of job experience in at least one of the following digital media design skills: 3D modeling, compositing, paint and roto, layout and match move, digital environment and Matte painting, texture, lighting shading, character effects, effects and simulations, design and scenario, rigging, user interface or user experience, responsive design (for gaming), virtual reality, augmented reality, digital media animation, levels editing for digital media design, software editing for digital media design, pipeline software development or applications relevant for digital media design.)

In each case, the position to be filled must conform to the requirements of the NOC (National Occupational Classification) definition, and the employee must have the credentials required for the position, and be paid an appropriate salary.

Employers seeking to hire foreign workers in any of the above fields may be eligible to utilize the GTS and bypass various requirements otherwise required for hiring foreign workers, and secure faster processing times.

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

Immigration, Refugees and Citizenship Canada (IRCC) has launched a new program whereby prospective students from:

• China
• India
• The Philippines, and
• Vietnam

can secure study permits through a new fast-tracked system called the ‘Student Direct Stream’.

To qualify, a student from a listed country must:

• Be accepted by a Designated Canadian Learning Institution (DLI)
  [A listing of DLIs can be found at https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/study-permit/prepare/designated-learning-institutions-list.html;
  please note that all elementary and secondary schools are DLIs (and not found on the list)]

• Submit proof of:
  • Payment of first year tuition
  • The purchase of a Guaranteed Investment Certificate in the amount of $10,000CDN
  • Completion of an upfront medical exam
  • Gradation from a Canadian curriculum secondary school, or receive a qualifying language test score of:
    • For English: IELTS 6 (www.ielts.org), or
    • For French: TEF 7 (www.lefrancaisdesaffaires.fr/tests-diplomes/test-evaluation-francais-tef/tef-canada/)

Students meeting these criteria will have their cases assessed, and if approved, processed forthwith.

Prospective students from these countries can still apply for study permits through the ordinary system if they do not meet any of the criteria noted.

This system may be expanded to other countries after review of the workings of the program, in due course.

Study in Canada for many is a stepping stone to later work, permanent residence and citizenship. As such, the ability to secure a study permit, and indeed secure it in a more efficient manner, is an important consideration in immigration planning.

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