Category: ImmPulse™ Newsletter

After prior announcements that the new ‘Global Skills Strategy’ immigration initiative would be implemented on June 12, 2017, the government today provided details about the workings of the program. Certainly, as with the launch of any new program, there will be a ramp-up period both within the government and among stakeholders in the Canadian immigration system, as the nuances of the practical application of the rules evolves.

The essential aim of the program is to allow Canadian employers the ability to more readily secure certain highly-skilled foreign workers, promising a 10-business day processing time. Keeping the process nimble has always been one of the essential challenges of the Canadian immigration system, and lack of government reactiveness to current situations can hinder the ability of Canadian businesses to compete. This program is designed to ensure that Canadian employers can access necessary foreign talent in high-growth fields, while still protecting the Canadian labour market.

With today’s announcements, the government has codified the new Global Talent Stream program into two types. Further, a group of new work permit exemptions will take effect.

Category A

Under Category A of the Global Talent Stream, certain employers will be effectively recognized and pre-approved as high-growth businesses, where they can demonstrate a need for in-demand talent. This category is not limited by sector, but in order to apply, a company must be recommended to Employment and Social Development Canada (ESDC) by one of the following agencies:

• Atlantic Canada Opportunities Agency
• BC Tech Association
• Business Development Bank of Canada
• Communitech Corporation
• Council of Canadian Innovators
• Federal Economic Development Agency for Southern Ontario
• Global Affairs Canada’s Trade Commissioner Service
• ICT Manitoba (ICTAM)
• Innovation, Science and Economic Development Canada – Accelerated Growth Service
• MaRS Discovery District
• National Research Council – Industrial Research Assistance Program
• Ontario Ministry of Citizenship and Immigration
• Ontario Ministry of Economic Growth and Development
• VENN Innovation

The list of referring agencies may grow, but at this time, ESDC will have, in effect, a vetting system before it allows an employer to be eligible for the stream. After acceptance as a vetted employer, the company may then file the expedited LMIA applications the program allows. To qualify for recommendation, companies will need to show factors including the need for specialized talent, and the jobs will need to be high-paying, typically $80,000/year or more.

Category B

Under Category B of the Global Talent Stream, Employers can hire highly-skilled foreign workers to fill positions in occupations that will be found on a talent list, which may change from time to time. As of today, the list of eligible occupations, with their associated NOC codes, is:

0213	Computer and information systems managers
2147	Computer engineers (except software engineers and designers)
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
2241	Electrical and electronics engineering technologists and technicians
2283	Information systems testing technicians
5241	Digital Media and Design (positions requiring a minimum of five years’ industry experience and specific skills only)

 

Work Permit Exemptions

In addition to the foregoing, foreign workers working in occupations found in NOC classifications 0 (management positions) or A (typically requiring a university degree), will be permitted to work in Canada for 15 days in any 6-month period, without the need for a work permit. And further still, researchers working on projects at publicly-funded degree-granting institutions or affiliated institutions will similarly not require work permits for work of up to 120 days in any 12-month period.

Summary

This is an exciting development in Canadian corporate immigration law. For now, it is a 24-month pilot program, but it would appear that this may be of great value to Canadian employers, particularly where immigration systems in other countries are becoming more restrictive. We will of course advise readers of any important developments in the program.

 

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

As those dealing with foreign workers in Canada will know, work permits come in two primary flavours – with LMIA, and without LMIA. An LMIA (Labour Market Impact Assessment) application is a process whereby an employer substantiates to the government its inability to find a Canadian citizen or permanent resident for a particular position, and as such, seeks to hire a foreign worker. (Work permits that do not need an LMIA have various other breakdowns and requirements.)

Though it would may seem trite to say that everyone should read what they’re signing, and though non-LMIA work permits have their issues as well, we wish to focus today on the ongoing requirements that employers agree to, every time they secure an LMIA. Unfortunately, there are a number of issues in the ‘fine print’ of the application that often get overlooked, or which are taken for granted.

LMIA applications necessitate a tedious and difficult process, and their outcome can never be assured. When an employer gets a positive LMIA, they usually jump for joy. ‘Great – we’ve got our LMIA; we’re good to go to bring the foreign worker.’ Well, not so fast. Yes, it may be true that the employer has secured an LMIA – and that it wasn’t easy – but the employer’s obligations and ongoing requirements are far from over. Indeed, failure to recognize the obligations that the employer has agreed to in getting an LMIA, may ultimately lead to the unravelling of the LMIA, or even sanctions including monetary penalties, blacklisting, and restrictions on hiring further foreign workers.

There are, in the body of an LMIA application, various mandatory assertions and/or undertakings which an employer must agree to before being granted an LMIA. These assertions/undertakings are found near the end of the form, and are pre-printed statements with simple check boxes. All the check boxes must be checked, or the application will not be adjudicated. At first glance, the statements on the form seem innocuous. But when an employer checks those boxes, and signs off to the obligations set out, they are committing to a number of onerous requirements. Among other matters, employers are certifying or agreeing that:

• They will continue to be, compliant with all recruitment requirements and can provide proof upon request.
• The employment of a foreign worker will not adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute, should there be an ongoing or pending labour dispute at my business, and that they will inform Service Canada in the case one should develop.
• They will comply with the prevailing wage requirements and agree to review and adjust, when applicable, the Temporary Foreign Worker’s (TFW’s) wages, at least annually, to ensure he/ she continues to receive the prevailing wage for the occupation and region where he/she is employed. (emphasis added)

• They will provide the TFWs with employment in the same occupation as that set out in the TFWs offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those set out in the LMIA application.
• For a period of six years from the first day of employment of a TFW, they may be subject to an inspection and that they will retain any documents that relate to the LMIA application and the terms and conditions of the LMIA letter and annexes.
• The employment of the TFW(s) will not lead to job loss or reduction in work hours for any Canadian or permanent resident during the period of employment for which the work permit is issued.

And that:

• They will immediately inform Service Canada of any changes related to the foreign worker’s terms and conditions of employment as described in the LMIA.

These certifications or agreements cannot be taken lightly, particularly since audit can occur for up to 6 years after approval. Further, it is no defence to say, where applicable, that the form was pre-populated by counsel. Employers are responsible for what they sign.

As will be noted, one particular obligation is highlighted, and discussion of that obligation is now highlighted as well. That obligation indicates that an employer MUST, at least annually, adjust compensation to ensure that the foreign worker in the relevant position is being paid prevailing wage, based on the NOC for that position. That means that an employer has an ongoing obligation to review and adjust salary as required so long as a foreign worker is in Canada. The wage provided for at the outset of employment, even if completely appropriate at that time, may become obsolete at a later point, and an employer cannot fail to keep up with rising prevailing wages.

Certainly, the preceding paragraph relates to one very important requirement, but the others are also not to be overlooked. We would specifically note the final bullet that requires Service Canada to be notified of ANY change to a foreign worker’s terms and conditions of employment. Failure to do so may lead to the inability to secure further LMIAs and work permits, as well as other sanctions (as indicated above).

We wish to underline with this article the need for employers in Canada to be completely aware of the obligations they are undertaking each time they complete an LMIA application, and that their obligations are by no means over after an LMIA application is adjudicated. When an employer submits an LMIA application, it is imperative that they recognize the ongoing requirements to which they are subject. Without this recognition, future violations may occur, and may even go unnoticed in the organization, until it is too late.

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

The government of Alberta and Employment and Social Development Canada (ESDC) have partnered to deal with a concern in the Alberta labour market.

Before hiring a temporary foreign worker, an employer must go through the Labour Market Impact Assessment (LMIA) process. This process, established by ESDC and administered by Service Canada, forces employers to ensure that they seek Canadians before filling a position with a foreign worker. Subject to rules for specific occupations or occupation types, the LMIA process generally requires an employer to seek to recruit Canadians, and thereafter substantiate to Service Canada that a suitable Canadian could not be found. (For our purposes, ‘Canadians’ will be used to include Canadian citizens and permanent residents.)

From time to time, in recognition of market factors, ESDC may take action to address a problem or concern. This can occur both when there is recognition of a labour market shortage, as well as when there is a surplus, in a particular field or geographic location

In this instance, ESDC and the province of Alberta have agreed, for a 24-month period, to disallow the issuance of LMIAs for positions in occupations deemed to have a sufficient pool of talent in Canada. Indeed, as a balance to this action, the government of Alberta has created a ‘liaison’ service to assist employers who are seeking workers to fill positions in these categories. The occupations in question are listed below, at the end of this article.

Note that this is an ESDC/Alberta program impacting the Temporary Foreign Worker Program. This is NOT an Immigration Canada program. That is to say, people who are seeking work permits under LMIA-exempt categories (also known as the ‘International Mobility Workers Program) would still be able to seek work permits for positions in Alberta, so long as they otherwise met the requirements of a particular LMIA-exempt category, for example, Intra-Company Transfer.

Certainly, some employers may be impacted by this program, but (a) they can seek assistance through the Alberta Employer Liaison Service (see http://www.albertacanada.com/opportunity/employers/employer-liaison-service.aspx), and (b) this should have little or no impact on 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.

__

List of Occupations for which LMIAs will Not Currently be Issued in Alberta:

Business, finance, and administration occupations
	NOC		Title
	1225		Purchasing agents and officers
	1523		Production logistics co-ordinators
Natural and applied sciences and related occupations
	NOC		Title
	2131		Civil engineers
	2132		Mechanical engineers
	2133		Electrical and electronic engineers
	2212		Geological and mineral technologists and technicians
	2231		Civil engineering technologists and technicians
	2233		Industrial engineering and manufacturing technologists and technicians
	2261		Non-destructive testers and inspection technicians
Trades, transport and equipment operators and related occupations
		NOC	Title
		7202	Contractors, supervisors- electrical trades and telecommunications occupations
		7231	Machinists and machining and tooling inspectors
		7237	Welders and related machine operators
		7241	Electricians (except industrial and power system)
		7242	Industrial electricians
		7251	Plumbers
		7271	Carpenters
		7301	Contractors and supervisors, mechanic trades
		7302	Contractors and supervisors, heavy equipment operator crews
		7311	Construction millwrights and industrial mechanics
		7312	Heavy-duty equipment mechanics
		7322	Motor vehicle body repairers
		7511	Transport truck drivers

 

Occupations in manufacturing and utilities
	NOC	Title
	8222	Contractors and supervisors, oil and gas drilling and services
	8232	Oil and gas well drillers, servicers, testers and related workers
	8412	Oil and gas well drilling and related workers and services operators
	8615	Oil and gas drilling, servicing and related labourers
	9232	Petroleum, gas and chemical process operators

 

Until 3 years ago, ‘dependent’ for Canadian immigration purposes meant a child under the age of 22 (with some exceptions for children with health issues reliant on parental financial support). In June 2014, the government of the day revised the dependency age to ‘under 19’. This meant that many families, whether in a temporary or permanent immigration scenario, lost the ability to include children aged 19 to 21.

Effective October 24, 2017, the new Canadian Liberal government will reset the age of dependency back to ‘under 22’ again. This is of course good news for many families, and will have an impact for families whether here on temporary work or other permits, or seeking permanent residence. (As an aside, this change is consistent with numerous ongoing studies and reports that indicate that children are ‘living at home’ much longer than they have in the past.)

One very interesting and important caveat to note though is that any permanent residence application already submitted, or to be submitted between now and October 24, will continue to be governed by the ‘under 19’ rule. This may impact on planning and the timing of applications – and may require a trade-off between (a) including a child in the application, and (b) facing a reduction of points for age for the principle applicant. It would have seemed that this rule should be retroactively applied, but at least for now, that is not the case. In many instances though, children caught in this situation may be separately sponsored for permanent residence.

We will of course keep readers updated of any further announcements concerning this issue.

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

‘Express Entry’ (EE) refers to the procedure by which Canadian economic class permanent residence (PR) applications are processed. (The economic class is based essentially on professional/occupational background, as opposed to, e.g., family class or business class.) In November 2016, Immigration, Refugees and Citizenship Canada (IRCC) changed various EE rules to allow points for Canadian education, and certain work experience without an LMIA.

Now they’ve done it again. IRCC has announced that, effective June 6, 2017, applicants will get enhanced points for French language abilities, as well as for having siblings in Canada.

Enhanced French language considerations

In terms of the French, 15 points will now be available to applicants who score above 7 in all four competencies (reading, writing, listening, speaking) on the ‘Niveau Niveaux de compétence linguistique canadiens’ (NLC) French standard, but an English test result of 4 or lower on the Canadian Language Benchmark’ (CLB) English standard. Where the applicant scores 5 or higher on the English CLB, the NLC score of 7 will lead to 30 additional points.

Consideration of Siblings in Canada

In terms of siblings, where an applicant, or his or her spouse/common-law partner, has a sibling 18 or older who is a Canadian citizen or permanent resident living in Canada, 15 additional points will be awarded. The issue of ‘living in Canada’ is not insignificant. Based on prior experience, pre-EE, this will certainly require sufficient evidence of that person’s physical presence in Canada at the time of application and/or finalization.

Further Changes

In addition to all the foregoing, registration by candidates on the Canadian Job Bank will become voluntary after June 6.  For those currently without a job in Canada, they may still register for the Job Bank if they so choose.

Summary

These changes represent another step by IRCC in its recognition of factors that will make someone a good candidate for Canadian immigration. Of course, as with past adjustments, the true value of the changes will only be known after we see the kinds of point thresholds that IRCC will start using after June 6, but presumably, those with the relevant factors above will benefit from the change.

We will of course monitor the situation, and advise of any relevant impact after June 6.

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

Myth: A permanent resident (PR) of Canada remains a PR until the expiry date on his PR Card. The status cannot be lost before that time.

Reality: False.

The Issue

Canada’s permanent residence (PR) program has become very popular for many foreign workers who wish to remain in Canada after a temporary stint, as well as for ‘independent’ immigrants applying directly from abroad. However, securing PR status is one thing; maintaining it is another. It is crucial to understand the obligations surrounding PR status after someone secures such status. Failure to comply with the law could lead to loss of status.

Once a person becomes a permanent resident of Canada, he/she has specific residency obligations which must be met in order to maintain that status. There are some misconceptions though about how to meet those requirements.

This article is divided into two parts. First, we will set out the basic residency requirements, and some of its issues, but second, and in accordance with a primary objective of this article, we will set out to untangle the specific problematic issues that often arise due to a misunderstanding of the PR Card vs. PR status. These are two distinct things, and despite popular belief to the contrary, having a PR Card does not guarantee that you will retain PR status.

1. The Residency Requirement Overview

In very general terms, to maintain PR status, you must, for 2 out of 5 years back from the date of review, meet one or more of the following conditions:

• Be physically present in Canada
• Be outside Canada working for a Canadian company (or the federal or a provincial government), or
• Be outside Canada accompanying a Canadian citizen spouse

Failure to comply with this requirement can lead to loss of PR status.

[Note that in practice, the process to technically lose status, or have it revoked, may be more complex, possibly involving a hearing and other procedures, but for our purposes, we are looking at the substantive issues as assessed at the time of review, as discussed below.]

Before dealing with some specific issues concerning these requirements, it is crucial to understand that the 5 years in question runs backwards from the date of each review – the date on which the matter is being examined, and not any other date. And it is a ‘rolling’ date – no matter what other dates may come into play (including the date on a PR Card), the 5-year date will change constantly as time moves forward. Such reviews occurs every time someone interacts with the Canadian immigration system. Most commonly, that will occur when someone arrives in Canada on an international flight. (For example, therefore, someone arriving in Canada on April 1, 2017, will have his status reviewed back until April 1, 2012.) Bear this in mind as a prelude to the PR Card issues discussed further below.

In looking at the 3 noted ways to satisfy the conditions, let’s just review some of the issues that we sometimes see arise:

• Being physically present in Canada – sounds easy, but do you have the evidence to backup your assertion? Don’t assume that the officer will just believe you; you may need evidence which can include all variety of proof such as pay slips, proof of kids in school, apartment rental payments, etc.
• Being outside Canada working for a Canadian company – this is one of the riskiest methods of getting time to count toward your two-year requirement. You must be abroad working for the Canadian company or an affiliate or client; paying Canadian taxes, as some think, doesn’t necessarily solve the problem. Further, setting up a company/scheme just to meet the requirement may be ‘unveiled’ so that the test will not be considered to have been met. Worse still, you won’t know whether your reliance on this rule is valid or not until you try to come back some time down the road and an officer reviews your case and questions it, based on the system noted above. So, you need to be confident and/or consider proper preparations before leaving and relying on this provision.
• Being outside Canada accompanying a Canadian citizen spouse – this is perfectly fine, and indeed, note that the Canadian citizen can be the person who might otherwise be thought of as the ‘dependent’. That is to say, if a permanent resident husband wants to go abroad, and his dependent Canadian citizen wife is with him, he is still accompanying her for the purposes of meeting the two-year rule. Effectively, he has become her dependent. Note again though that like any of the above, or any legal issue in general, you must still have evidence to substantiate the facts.

2.   The Myth/The Confusion/The Reality of the PR Card

Now, we need to take this understanding further.

The issue we see constantly with regard to PR is a (mis)belief that you maintain your PR status as long as your PR Card has not expired. That is, the card effectively acts as a ‘5-year pass’. However, as noted, the 5-year period in question is the one 5 years back from the date of review by an officer; it is NOT the date on the PR card. This misapprehension typically arises because of a misunderstanding of the difference between PR status and a PR Card. Let’s look at the card, to understand what it is, and what it does. PR Cards are issued in 5 year increments – and this fact is what often causes confusion, and a false sense of security. As hard as it may be to believe, the expiry date on a PR Card does NOT ensure that you can retain your PR status up to that date. Though it is can serve as a de facto form of evidence of PR status, the PR Card serves in large part to ensure that commercial carriers (typically airlines) have a basis on which to know whether a person may board a flight to Canada. Indeed, if one enters Canada in a private car, no PR Card is needed. Indeed further, a PR can live his whole life in Canada without a PR Card, as long as he doesn’t need to exit and re-enter. The fact that the card is issued for 5 years may be sufficient for the airline, but not necessarily for Immigration Canada.

So, to recap, no matter what the expiry date on your PR Card is, the residency requirements must be met for a 5 year period running backwards from the date of review, whenever someone encounters the immigration system. As noted, the most common time that people encounter the system is every time they arrive on an international flight (though there are other times, including when you apply to renew a PR Card).

The bottom line is that to satisfy the residency requirement, you need to consider the residency rules and time frames as set out above, not the PR Card, and satisfy the test every time you encounter the immigration system.

3.   Note As Well – Citizenship is a Completely Separate Issue and the PR Rules Don’t Apply

One side point, which is that none of this discussion impacts the residency requirements for citizenship. As hard as it is again to believe, the residency requirements for citizenship are different. Without a full discussion in this article, it will involve 4 years’ physical presence in Canada in the 6 years preceding application. Things like being abroad with a Canadian citizen won’t necessarily count. (Note that changes to citizenship laws are expected in the near future.)

Summary

As noted, the issue of PR Card vs. PR status is very misunderstood, and failure to understand can lead to dire consequences, including the revocation of your PR status. DO NOT rely on a PR Card as an irrevocable ‘ticket’ to Canada. A person must track his/her time and/or actions (and be able to verify them) for the 5 years back when you encounter an officer – with or without a valid card. Recognize as well, that it is 5 years only; that is, you can’t say ‘but if you look back over the course of 6 years, I was here for 3, so I’m ok’. You cannot go further than 5 years back. Time may be added to the front (i.e. most recently), but time also falls off the back (i.e. prior to 5 years), as you move along (which also means that a short return to Canada won’t necessarily help you).

We hope this illuminates the issue, and anyone with questions should seek proper counsel. Proceed with caution.

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

 

As readers of ImmPulse™ will be aware, Immigration Canada announced that changes were coming in 2017 to visa requirements for nationals of Romania, Bulgaria, and Brazil. (This is in addition to the removal of the visa requirement for Mexican nationals, which occurred in 2016.)

IRCC has now confirmed that, effective May 1, 2017, nationals of Romania, Bulgaria, and Brazil will be able to enter Canada using an Electronic Travel Authorization (eTA) rather than a visa, if

• They have held a Canadian visa at any time in the 10 years preceding their travel, or
• They have held a US non-immigrant visa at any time.

In the case of nationals of Romania and Bulgaria, the use of eTAs rather than visas will be broadened to include all nationals of those countries (with or without prior Canadian or US visas), effective December 1, 2017.

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

In addition to all federal permanent residence immigration programs (including the business, economic, and family classes), each province currently runs its own provincial nomination program. [In the case of Quebec, there is a selection program, which is separate from the discussion herein.] The number of allowable nominations per province per year is set by agreement between each province and the federal government. In effect, therefore, each province has a quota on the number of applicants it can nominate per year.  Within each nomination program there can also be breakdowns of categories of applications that will be accepted, for instance, skilled workers, international graduates, and business applicants.

In the case of Ontario, a province with high demand, the quotas for the various categories of provincial nomination often fill quickly. Ontario’s program is often referred to as the OINP – Ontario Immigrant Nominee Program. Indeed, Many prospective applicants in various categories of the OINP have been ineligible to submit applications under the Ontario program since early 2016. Specifically, the OINP has not been accepting applications in the following categories:

• the International Masters Graduate Stream,
  • Students who obtained a Master’s Degree in Ontario may apply for nomination without the need for a job offer
• the International PhD Graduate Stream, and
  • Students who obtained a PhD in Ontario may apply for nomination without the need for a job offer
• the Ontario Express Entry Human Capital Priorities Stream.
  • The OINP scans the federal Express Entry Permanent Residence Application pool, and selects applicants that it feels meet its selection criteria (based on age, education, work experience, etc.), and who have indicated Ontario (or ‘any province’) as the province of destination. It may then send the applicant a Notice of Interest, and the applicant may proceed to submit an application under this stream of the OINP.

Effective today, February 21, these specific programs are again accepting applications. Further information can also be found at the Ontario government`s web site at:  http://www.ontarioimmigration.ca/en/pnp/OI_PNPNEW.html.

If this is something that may be of value to an applicant or an organization hoping to secure permanent residence for a specific applicant, it would be prudent to take any necessary actions forthwith, before the quotas fill again.

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

Our newsletter typically focuses on immigration affecting those who wish to come to Canada, or remain in Canada (and related parties, such as relocation and global mobility providers, employers of foreign workers, etc.).

However, the sudden and drastic change to U.S. immigration procedures give rise to consideration of how Canadians – and others residing in Canada – will be impacted. There is no doubt that Canada is a major source of temporary entrants to the United States, whether for business or pleasure. In fiscal year 2015, there were some 13 Million temporary entries by Canadians into the United States, in addition to entry by another large number of people with other types of status in Canada (e.g. permanent residence, temporary work permits, etc.)

What the Ban Does

Though it is of course a matter of U.S. law, the ban, in accordance with information widely circulated, prohibits travel to the United States by citizens of seven specific countries: Syria, Libya, Iraq, Iran, Sudan, Yemen, and Somalia. The ban is set for 90 days from January 27. The ban also suspends all refugees from entering the United States for the next 120 days, and indefinitely for Syrians. It is not yet clear what measures will be implemented for the period after the temporary ban.

There are numerous questions about some of the details surrounding the ban, and the situation seems fluid. There are ongoing court rulings about various specifics, there have been questions about implications for U.S. permanent residents as well as dual citizens, and much more. We all can only watch and see what transpires vis-à-vis the United States itself, as the matter unfolds and changes on an hourly basis.

The Impact on Canadians and Others in Canada

Let’s break down the ramifications we see for Canadian citizens and residents of Canada – permanent or temporary.

•           Canadian Citizens with No Other Citizenship

Based on the order itself, it would seem that Canadian citizens who hold no other citizenship are not affected by the ban. Whatever rights to entry existed before the order, continue to exist. (That being said, we are hearing reports that there is nonetheless a more stringent admission procedure being administered to everyone at U.S. ports of entry since the new administration took power.)

•           Canadian Citizens Who Also Hold Citizenship in a Banned Country

On January 29, Canada’s Immigration Minister announced that the ban would not be implemented against dual citizens holding citizenship in Canada and one of the banned countries. Hopefully, this answers the question for such dual citizens. However, unfortunately, there appears to be doubt whether this statement can be taken as definitive, as it would need to come from an official U.S. source. And in any event, and as noted, many details remain unresolved, seemingly including this one. As such, no clear guidance can be provided, but we are not aware of anyone facing refusal of admission to this point.

•           Permanent Residents of Canada

Similar to the dual citizen issue above, there has been some information to the effect that permanent residents of Canada holding citizenship in one of the banned countries would appear not to be caught by the ban. Yet again, this cannot be taken as definitive, and the same considerations as above would be applicable.

•           People in Canada on Work or Study Permits (or otherwise visiting)

There would appear to be no relief available to anyone from a banned country, who is in Canada working or studying. That is, a citizen of a banned country on temporary status in Canada is indeed banned from entering the United States.

•           Travelers Stranded in Canada Due to Implementation of Ban

Canada has announced that it will grant temporary status to people stranded in Canada based on the ban. There is no information on the long-term consequences for people in this position, but for now, people in this situation are not in danger of being in violation of Canadian law due to remaining here.

Long Term Prognosis for Canada

Canada, at least for now, remains the United States’ largest trading partners after the European Union. That trade brings with it the need for extensive cross-border travel, which, to date, has at least been operating under recognized parameters. There have always been legal issues about entitlements to enter or work in both the United States and Canada, but within a reasonable range of possible considerations.  Any changes to the issues have necessitated legislative or regulatory compliance, and where appropriate, negotiations between the countries on common matters, notably NAFTA.

The ban not only throws many cross-border immigration issues into question, but also indicates that change can now come unexpectedly, and without notice. Further, that change can be dramatic. This creates uncertainty for not only individuals, but also businesses and even governments (including federal, state/provincial, and municipal) as there would now be uncertainty as to the ability to move forward as expected on projects or business ventures. At the very least, without opining on the validity or value of the ban vis-à-vis citizens of the banned countries generally, there is a need for certainty with regard to those already in Canada, whatever their status may be. Canada was not consulted in advance of the pronouncements, catching everyone off-guard. Whatever the legal allowance the U.S. government has to impose restrictions, it is hoped that at least the parameters are clear, or that there is advance discussion as to the impact on people already in Canada. It would seem that this level of cooperation should benefit everyone – including U.S. businesses.

There may be one unintended consequence of the ban in that U.S. companies with Canadian affiliates may find it preferable, where viable, to send employees to Canada, rather than the U.S. Yet again, that may serve to harm U.S. interests.

Where We Stand

At this juncture, and as noted, matters are still fluid. Hopefully, matters can be resolved favourably for those already in Canada. However, even if not favourable, it is hoped that at least some clarity can be given to the pronouncements, and that in future, such pronouncements are advised in advance or indeed discussed between such important trading partners.

For now, there is unfortunately still doubt for many of the situations noted above. We believe that in the end, any Canadian citizen will be excluded from the ban (even someone holding citizenship in a banned country), and that this will even be extended to permanent residents. But we all have to see how the dust settles over the next few days.

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

Background

As readers of ImmPulse™ will be aware, the way that points are granted for permanent residence under Canada’s Express Entry system changed in November 2016. These changes affected various issues including credit for Canadian education as well as non-LMIA work permits, to secure needed points on the system.

One very important aspect of the changes was a leveling of the playing field with regard to the value of LMIA-based and non-LMIA-based work permits (such as, e.g. Intra-Company Transfers and NAFTA Professionals). Whereas previously, only LMIA-based work permits garnered points under ‘arranged employment’, now, non-LMIA work permits could garner such points as well (subject to certain requirements). However, there was a trade-off in that whether LMIA based (previously 600 points) or non-LMIA-based (previously 0 points), the value in all cases would now be 50 points.

There were two exceptions to the number of points available for arranged employment. One exception was points for those selected under a provincial nominee program, who continue to receive 600 points. The other exception was for those who occupied senior managerial positions, who receive 200 points. Clearly, garnering points in either of these ways is significant, and almost a certain guarantee of selection.

In terms of the senior managerial positions, such positions are those whose NOC Code starts with 00. The NOC Code is a 4-digit number assigned to every occupation which classifies the job based on sophistication and industry or area of expertise. Some examples of relevant NOCs would be NOC 0013: Senior Managers – financial, communication, and other business services, and NOC 0016: Senior Managers – construction, transportation, production and utilities.

What’s Changed

Now, as time goes on, we learn more about the interpretation and application of the rules – in this case, with regard to considerations vis-à-vis senior managers.

One issue which has undergone some consideration is the question of whether, for the purpose of garnering additional arranged employment points, the senior managerial position had to already be accounted for on a prior work permit, or whether it need only be accounted for moving forward, in the permanent residence application. The answer is: the prior work permit need not have already been based on a NOC 00 category.

That is to say, if there is someone working in Canada in a managerial position, but whose work permit was based on a position described by a NOC Code not staring with 00, that person can still get 200 arranged employment points, if their employer is prepared to confirm that the position will be senior managerial. Obviously, getting 200 points rather than 50 is extremely beneficial, if it can be substantiated.

What You Should Do

Key in the discussion above is that the fact that the position is senior managerial (vs. ‘ordinary’ managerial) must be substantiated. This will include the need for properly documenting the facts, ensuring that there is no misrepresentation, considerations of salary, and other elements.

If you are an employer with a prospective high-level permanent residence candidate, or you are a permanent residence candidate, and the above issues apply, you should take action to ensure that you can secure maximum points through proper documentation and substantiation. Failure to do so will mean that your employee/you are missing out on 150 valuable points, and therefore, maybe, permanent residence itself.

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