Category: ImmPulse™ Newsletter

On November 19, the law changed vis-à-vis the assessment of points for Canadian permanent resident applications. Further details can be found at http://www.kranclaw.com/2016/11/updates-to-canadas-express-entry-permanent-residence-system/.

Since then, there have been two draws. The first was held November 30, and the minimum threshold to be selected was 786. It was clear that this was a ‘one-off’ high number designed to select provincial nominees (it would be very hard to qualify otherwise).

The second draw has now been held. The threshold point level set for selection was only 497. Though point levels will always fluctuate with each draw, it appears that this number allows those with work experience in Canada (with or without an LMIA) to qualify, subject of course to some appropriate levels of language, education, etc. Those without the work experience in Canada may still qualify, but the 50 points now given for arranged employment for work in Canada is seemingly the tipping point for many applicants.

For those working in Canada considering a permanent residence application, it would seem that in many cases, now would be a good time to lodge a profile, or at least take a closer look at how they fare in the system.

Immigration, Refugees, and Citizenship Canada (IRCC) today announced that the ‘4 Year Cap’ previously applicable to many foreign workers is eliminated, effective immediately.

This rule, implemented in 2011, provided that, subject to a number of exceptions, foreign workers could remain in Canada as temporary workers for a maximum of four years (including any renewals). Thereafter, they would be required to leave Canada. They would then be ineligible for a further temporary work permit for a further four years after their departure.

There were a number of exceptions to this rule including workers whose work permits are based on international treaties (such as NAFTA), or intra-company transfers, but unless such an exception was available, the 4 year rule would come into play. This created hardship for many employers and employees, and in many cases where a person did not qualify for or want permanent residence, this would seem to mean a ‘lose-lose’ for the employer and employee.

IRCC will continue to maintain certain other caps designed to ensure that Canadians are hired in priority, including caps on the proportion of low-wage workers permitted for any particular employer.

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

Well, we have arrived.

As readers of ImmPulse™ will be aware from our November 13 release (see http://www.kranclaw.com/2016/11/updates-to-canadas-express-entry-permanent-residence-system/), Immigration Canada ‘tweaked’ the way it allocates points under the Express Entry Permanent Residence system. The changes came into effect on November 19. Without reiterating the content of the last release, there were two primary changes in the way points would be assessed. Firstly, ‘arranged employment’ would be tiered rather than all-or-nothing. Whereas previously, arranged employment garnered either 0 or 600 points, now it would yield either (a) 50 points for 1 year of work on a work permit [with or without an LMIA – which was an important change], (b) 200 points for a work permit in a senior managerial position, and (c) 600 points for those selected under a provincial nominee program (PNP). Secondly, points would now be awarded for Canadian education.

The changes though were only academic, until we knew the thresholds that would be set for selection after November 19.

Now we know.

On November 30, Immigration Canada carried out its first post-November 19 selection. The minimum score to be selected to apply for permanent residence was set at 786 (out of 1200). Prior to November 19, points typically hovered around the 480 mark (though there were much higher and much lower pass marks on occasion).

With this high score, few people qualified on this round.  However, it is important to look at the matter in context. What the score means is that provincial nominees (who get 600 arranged employment points) were almost certainly chosen, and that other than the arranged employment factor, the cut-off was actually 186. This could well mean that in future draws, now that a group of provincial nominees has passed through, we will see significantly lower scores. Certainly, only a limited number of people are provincial nominees, and unless the government wants to choose only such provincial nominees (which would not seem reasonable), they will be forced to bring the scores way down.

Though this is still speculation, it is possible that future draws may hover around a minimum of (a) 186 [or thereabouts] + (b) a factor for arranged employment (other than through PNP). As an example, if they set the mark next time as 186 + 50 (for arranged employment) = 236, it would seem that a lot of people would qualify. It is not unlikely that the government will simply move the bar slightly one way or the other to get its desired result on each draw.

In any event, for now, all we know is that the latest score was 786, and that very few people qualified. Though this may seem negative, it may also be reasonable to speculate that this is a sign that in future draws, the scores will be lower (again, unless the government wants only provincial nominees).

We will keep readers posted as further information becomes available and as further draws occur.

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

Background

Almost two years ago, Canada devised a new way of selecting immigrants for permanent residence. While there were still general categories such as Federal Skilled Worker and Canadian Experience Class, all the people that qualified in those categories would be pooled into one group, and selected based on a further ‘Express Entry’ point evaluation.

Since then, many of us have come to terms with the new system, and recognize the pros and cons. One thing everyone could agree on with regard to the new system, was that having a job offer backed by a Labour Market Impact Assessment (LMIA) was an invaluable tool to putting you ‘over the top’ in getting selected from the pool. Not everyone could get an LMIA, but if you could, you were off to the races. (Similarly, provincial nomination might achieve the same result, but that was subject to other issues including quotas in each province.)

Under the system, there were a maximum of 1200 points available. A job offer backed by an LMIA (‘Arranged Employment’) was worth 600 points. Thresholds for selection fluctuated, but typically hovered around the 470-490 mark (with 450 being the lowest ever accepted, but the points going well into the 500s in some cases).

What’s New

             A. Points for Qualifying Offers of Employment

Starting November 19, points awarded for Arranged Employment under Express Entry will be awarded in a more nuanced fashion.

Now, the 600 points previously available will be allocated on a graduated basis as follows:

• 600 points: Provincial Nominations (as was previously true)
• 200 points: Qualifying Job Offers in Senior Management Positions
  • Senior Management Positions are those that are categorized under NOC Codes beginning with 00, such as:
    • 0013 Senior Managers – Financial, Communications and related services
    • 0015 Senior Managers – Trade, Broadcasting and other services
    • 0016 Senior Managers – Construction, Transportation, Production
• 50 points: All other ‘qualifying’ offers of employment

• The definition of a qualifying offer has been expanded to include:
  • LMIA backed job offer (as before), with the same considerations for
    • ‘fresh’ LMIAs for the purposes of permanent residence, and
    • existing LMIAs with offers for work to continue after permanent residence is granted, as well as
  • One year of employment (with the then current employer) on a work permit issued under certain International Mobility categories, notably:
    • Those under an international agreement (such as NAFTA Professionals), or
    • Those issued on the basis of ‘Canadian interest’, which includes intra-company transferees.
    • (Of note is that open work permits, such as post-graduate or international experience class, will not be eligible for these points)

               B. Points for Canadian Education

Further still, points for Canadian education will now be awarded as follows:

• 15 points for a one to two-year post-secondary program
• 30 points for:
  • a three-year college or university program,
  • an entry-to-practice degree (such as a medical degree)
  • a Master’s level degree
  • a Doctoral (PhD) degree

Other Changes

In addition to the substantive changes above, timelines for provision of information after selection from the pool of candidates is increasing from 60 to 90 days.

All changes will be applied to those already in the pool on November 19.

Considerations

The new calculations will be beneficial for some, and prejudicial for others. There is one unknown variable, and until that becomes known, the real impact is difficult to gauge. That variable is the threshold number that will be used for the selections for each draw. Whereas before, these hovered in the 470-490 range (as noted above), the thresholds set by the government could change drastically, to incorporate, or exclude, what it feels to be more or less qualified applicants.

For those seeking permanent residence in Canada (and their employers), the considerations will change, and we will need to wait and see how the dust settles. In our view, one group of ‘winners’ could be those working in Canada on non-LMIA work permits (e.g. intra-company transfers or NAFTA professionals), who will now get credit for that factor. (This was a significant omission when Express Entry was launched, as such work permits previously did garner some consideration; it appears that, to some degree, that recognition is back.)

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

The Minister of Immigration has announced that effective December 1, 2017, visa requirements for citizens of Bulgaria and Romania will be lifted.

Even before that date, Canada hopes to implement a partial lift that will exempt certain Romanian and Bulgarian citizens by May 1, 2017. This would apply to citizens of those countries who, at the time of intended travel to Canada, had held any kind of Canadian temporary resident visa during the immediately preceding 10-year period, or who hold a valid U.S. non-immigrant visa.

Please note that when the visa exemption becomes applicable to any individual Romanian or Bulgarian citizen, he/she would still require the new Electronic Travel Authorization (eTA) to fly to Canada.  (eTAs will become mandatory on Nov. 10. More information about eTAs and their implementation can be found at http://bit.ly/1TW6ZEG and http://bit.ly/2cBKFRz).

Though not directly linked to CETA, the Comprehensive Economic and Trade Agreement between Canada and the European Union now under consideration, this is reflective of Canada’s interest in broadening its ties with Europe generally.

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

Background

Immigration, Refugees and Citizenship Canada (IRCC) maintains bilateral programs with various countries whereby young people, (typically aged 24 to 30) may seek work permits in Canada without a Labour Market Impact Assessment. This category of work permits is known as the ‘International Experience Class’ (IEC). Within this program, there are three subcategories:

• Working Holiday
• Young Professionals
• International Co-op Internship.

Details about which countries are eligible for any of these programs, and the specific requirements, can be found at http://www.cic.gc.ca/english/work/iec/eligibility.asp.

One important point to note is that there are quotas for the number of participants that can be accepted from the various partner countries.

 

Current Considerations

As set out in a previous issue of ImmPulse™ at http://www.kranclaw.com/2015/12/changes-to-the-international-experience-class-application-process/, the program changed last year from a first-come-first-served system, to a pooled system. Under the new system, all applications are pooled, and then there is a selection process to determine who will be invited to apply. This, however, does not change the reality of quotas, so it simply means that many people won’t be allowed into the program – and they won’t know that until the process runs its course.

 

What You or Your Prospective Employee Need To Do

The deadline for submitting an application to the pool this year is September 30. As such, clearly, anyone still interested in participating in the program, must submit their applications immediately. Thereafter, the selection will begin. Note that anyone not chosen would have to reapply next year to seek admission under that year’s quota. For employers who hope to secure the services of a foreign worker through this program, it is also imperative that steps are taken to ensure that prospective employees apply and take all other necessary steps forthwith.

 

Other IEC News

On a separate note, Canada has also just expanded the list of countries participating in the IEC program to include San Marino. We expect that more countries will be added as time goes on, and will apprise readers of any such occurrence.

 

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

In August 2015, Canada introduced the ‘Electronic Travel Authorization’ (eTA) – a process that would require most non-visa nationals to register online before being permitted to fly to Canada. Details of the program are set out in a prior ImmPulse™ release at http://www.kranclaw.com/2016/01/electronic-travel-authorizations-beware-the-ides-of-march/.

The program was to become mandatory in March 2016. (Voluntary registration has been available since August 2015, and continues to be available.) Just before the implementation date, Immigration, Refugees and Citizenship Canada (IRCC) announced a postponement of the mandatory implementation date, to the end of September. We were indeed anticipating that the program would become mandatory after September 29, 2016.

Now, IRCC has just announced the postponement of the mandatory implementation date again – this time, to November 10, 2016.

As such, non-visa nationals continue to be eligible for air travel to Canada without an eTA until that time. Those who do apply for an eTA should be aware that doing so makes them subject to IRCC ‘inspection’, and we continue to see people refused eTAs because, for instance, they have a prior criminal record. We refer readers again to http://www.kranclaw.com/2016/01/electronic-travel-authorizations-beware-the-ides-of-march/ where full details are set out.

IRCC has also reiterated that with the mandatory eTA implementation will come the requirement that Canadian citizens – including those holding citizenship in Canada as well as another country – MUST enter Canada using their Canadian passports.

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

Though certainly not as sensational as the recent ‘Brexit’ vote in the UK, Canada is also bracing for a vote that could have some implications for immigration matters – at least in the short term.

The Canadian postal service (‘Canada Post’) is currently in the midst of contract renegotiation with the union representing the postal workers. Though talks are ongoing, there could be a strike or lockout as early as this Friday, July 8. Should this happen, there will obviously be an obstacle in some cases, in sending information to Immigration Canada, or receiving information from them.

In preparation for the possibility of a postal work stoppage, people should be aware that:

• There is no indication from Immigration Canada that any leniency will be extended due to the strike.
• The online system will not be affected. Certainly, anything that can be filed online should be done in that manner.
  • The most common situation where the online system cannot be used, is an application for Permanent Residence Card. However, there may be situations, for example, where an original document is to be sent, etc., or even in some cases, where internet access is restricted.
• If you do need to send something to Immigration Canada, you will need to use a courier.
  • Canada Post’s ‘Xpress Post’, often used as a type of courier service is in fact NOT a courier service in the ordinary sense. It is still ‘mail’ which is delivered by Canada Post workers, and it will not be of any benefit to use it during the strike.
  • Traditional Couriers (e.g. FedEx, Purolator, DHL, etc.) will not deliver to a PO Box. Ensure that the address you are sending to is not a PO Box.
  • If using a courier, it is important to note that Immigration Canada mailing addresses are not the same as courier addresses. You will need to check the Immigration Canada web site (www.cic.gc.ca) [and often, the guide for a particular type of application] to determine the courier address of the office you wish to access.
• With regard to LMIAs, Service Canada advises that confirmation letters will be delivered to employers and/or counsel by courier. Applications can also be sent by courier or fax.
• Even though the strike is still a minimum of two days away, if you need to mail something at this time, don’t. Even if the address is just around the corner, you should not take the chance of having your item languish at some depot for an indeterminate period.

The time to prepare for a possible strike is now. Those that are prepared, should be able to ‘weather the storm’ without difficulty. Those that are not prepared, may find themselves with issues to contend with.

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

In 2009, in the face of surging numbers of refugee claimants, Canada instituted a visa requirement for Mexican citizens to travel to Canada. Whatever impact this move may have had on stemming the tide of refugee claimants, it was both

• (a) harmful to business, and
• (b) a sticking point in Mexico-Canada relations.

The Government of Canada is now set to terminate the visa requirement.

Effective December 1, 2016, Mexicans will no longer need a visa to seek temporary entry to Canada. This includes entry for the purpose of work, study, business visitation, or ‘ordinary’ visitation. In essence, from this perspective, Mexicans will be in the same position as any other non-visa national.

Some notes about the impact of this measure:

• (a) after the removal of the visa requirement, Mexicans will require an Electronic Travel Authorization like virtually all other non-visa nationals (see details at  http://www.kranclaw.com/2016/01/electronic-travel-authorizations-beware-the-ides-of-march/, and http://www.kranclaw.com/2016/05/electronic-travel-authorizations-etasare-back/), and
• (b) Mexicans’ substantive rights under NAFTA remain unchanged. Mexicans are entitled to the full benefits of NAFTA including work permits under professional categories, and will now be able (to seek these upon arrival at a port of entry (as they used to).

Canada is tearing down walls in its relationship with Mexico. This can only serve to improve issues vis-a-vis business immigration and mobility between the countries.

 

‘Implied Status’ is the right to remain in, and typically for our purposes, work in, Canada while a work permit extension application is in process. As long as the person has submitted their application prior to the expiration of the current work permit, that person may continue to work in Canada until a decision is made on their extension. There can be some complications though, and caution needs to be exercised. This topic was reviewed in some detail in a prior issue of ImmPulse™; please see http://www.kranclaw.com/2015/07/implied-status-the-explicit-explanation/.

However, Immigration, Refugees and Citizenship Canada (IRCC – formerly CIC) has just released some guidelines for its own officers, with regard to implied status. Though some of it codifies what was already known, it is beneficial to review its provisions, to ensure an understanding of what IRCC officers are actually instructed (and to therefore anticipate their position on specific cases). In particular, the primary question is with regard to people who exit Canada during their implied status, and seek to return. (People who remain in Canada during the entire renewal process will have no problems.)

The guidelines indicate that:

• A temporary resident with implied status who exits Canada while the extension application is pending may return to Canada, but, he or she may not work until the extension has been granted. (Similarity, someone studying under implied status who exits and returns would not be allowed to study until renewal is granted.)
• Clearly, for those who need a visa, the above is subject to their ability to secure a visa to return to Canada (or to obtain one before they leave).
• Further, those who need a visa but are travelling only to the United States (or St. Pierre and Miquelon) are considered TRV exempt, and this allowance continues as long as their extension application is still pending.
• Those (re)entering Canada who are entitled to apply for a work permit at the port of entry, may indeed apply for a work permit at the port of entry, even though the extension is still pending. This would include those that require a visa but are returning only from the United States.
• IRCC strongly suggests copying a carry of the extension application for the officer’s reference.

The above should be considered for those in implied status considering an exit from and re-entry to Canada.

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