Category: ImmPulse™ Newsletter

Sponsorship of spouses or common-law partners for permanent residence in Canada may be carried out either inland, or overseas, depending on various circumstances. Where the inland process is available and utilized, total processing time can be well over two years.

In December 2014, Citizenship and Immigration Canada (CIC) introduced a pilot project whereby spouses or common-law partners of Canadians being sponsored inland, could seek work permits while their cases were processing. This program has now been extended to December 21, 2016. (This program does not impact overseas sponsorships in any way.)

Under this program, where an application for open work permit is made with or after the filing of the sponsorship application, CIC will process the work permit application. The processing time for these work permits is typically about 4 months. In considering the work permit application, the officer will conduct a systems check to identify any adverse information on either the sponsor or the applicant that would render the applicant ineligible. The officer will further consider whether the specific program requirements have been met, most notably, the existence of a valid sponsorship, valid status for the sponsored spouse/partner, and the fact that the sponsor and applicant both reside at the same residence. If there is no bar to the granting of the permit, the officer will issue it for a two-year period.

This program is of great assistance to many sponsored spouses/partners physically in Canada, who have otherwise been unable to work. While it is hoped that the program become permanent, it is at least at this time available for one further year.

Background

Citizenship and Immigration Canada (CIC) maintains what is referred to as the ‘International Experience Class’ (IEC) program. The IEC is a broad term encompassing three specified work programs available for young people in countries with whom Canada has binational agreements. In very general terms, the three programs are:

• Working Holiday
  • For young people (typically 18-35), with no particular other selection criteria
• Young Professionals
  • For recent graduates with an offer of employment in Canada
• Co-op Internships
  • For students intending to complete a work placement or internship in Canada, pursuant to their academic curriculum

Though the programs are different, their availability is generally limited to quotas set each year for each program/country, and the term of employment in Canada may vary, to a maximum of 24 months in some cases.

Besides being of value in and of themselves for prospective applicants, these programs are sometimes useful tools for corporations seeking to hire a foreign worker who may otherwise not qualify for a work permit. 

Procedural Difficulties

Until now, the application process was simply based on a first come-first served approach. In view of the quotas, this meant that only a select few who were able to register immediately after the program opened each year, would be able to take advantage of the program. (The quotas would often close within literally just a few minutes.)

The Changes

Recognizing the inequity of the first come- first served approach, CIC will be changing the IEC application system. In many ways, the new system will mirror the Express Entry permanent residence system where applicants are pooled first, then selected. This is intended to remove any advantage that mere speed may provide. Henceforth, the IEC programs will be changed, as follows:

• Applicants for each of the three IEC programs will apply for entry into a pool or pools for selection (‘first come’ will no longer be the sole basis of selection)
• Applicants will be placed into all possible pools for which they may qualify
• Qualified applicants in each pool will then be selected
• If an applicant is selected, he/she will receive an ‘invitation to apply’ (ITA – as is the case in the Express Entry system) for a work permit
• For ITAs under the Working Holiday program, invitation will be through random selection
• If an applicant receives an ITA, he/she will have only 10 days to accept the invitation (failing which, the invitation will be nullified)
• Thereafter, once acceptance is confirmed, each applicant would have 20 days to submit their complete work permit application (online)

Considerations

For employers, there may be pros and cons when seeking applicants under the IEC, particularly the Working Holiday program. Previously, on one hand, though it was difficult to register, once indeed registered, you knew the matter was to be processed. On the other hand, if you weren’t quick enough on the draw, you never even got to register. Now, these issues have essentially been reversed. Now, speed may not help you, but you just won’t know if you can utilize an IEC program until you get an ITA.

Reliance on the IEC as a general corporate strategy may be somewhat risky given the unpredictability of the system – particularly vis-à-vis Worker Holiday program applicants. However, corporations will still be able to take advantage of the program if and when possible, and should perhaps focus on the Young Professionals or Co-op, where either of these is viable.

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

As readers will be aware, effective March 15, 2016, travellers to Canada from non-visa countries will require an ‘Electronic Travel Authorization’ (eTA). There are some exceptions to this requirement, including US citizens (not permanent residents) and people transiting through Canada. However, for anyone not fitting into one of the exemptions, an eTA will be required. (Please see http://bit.ly/1diawgD for details.)

Last week, the government announced that the eTA program will be expanded to include certain low risk travellers from: Brazil, Bulgaria, Mexico, and Romania. People from these countries otherwise require a visa. To qualify for use of an eTA rather than a visa, an applicant would have had to have held a Canadian visa during the last 10 years, or have a current valid US non-immigrant visa.

Further expansion of the eTA program may be under consideration. We will pass on all relevant information via ImmPulse™ as it becomes available.

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

The Prior Law

As readers will be aware, under prior law, effective until December 31, 2014, people who had pending permanent residence applications could, under certain conditions, apply for a ‘Bridging Open Work Permit’ (BOWP). A BOWP allowed a foreign worker to maintain their temporary work status while their permanent residence application was processing. The conditions referred to, to seek a BOWP, were essentially that a permanent resident applicant needed an ‘Acknowledgment of Receipt’ (AoR) of their permanent resident application, and that there were fewer than 4 months remaining on the person’s work permit. Under this regime, the AoR would only be issued once the file was checked for completeness.

The Change

This prior law indeed remains in effect since the implementation of the Express Entry permanent residence application system implemented January 1, 2015. However, in view of the different forms of communication now used under the new system, there has been a modification of the conditions as to when a BOWP can be sought.

Effective immediately, an applicant may use the ‘Acknowledgement of Receipt’ (AoR) automatically generated after an applicant is invited to apply for permanent residence and has uploaded his electronic Application for Permanent Residence (eAPR). In view of the fact that the AoR is automatically generated, there is in fact no check of the substance or completeness of the application prior to the BOWP application.

The Impact

Please recognize, that in light of the requirements under the Immigration and Refugee Protection Regulations, a BOWP will still not be issued until a completeness check is carried out. However, under the new guidelines, this review will be carried out by the officers processing the BOWP application at the inland Case Processing Centre in Vegreville, Alberta. The BOWP will still only be issued if it is confirmed complete.

In effect, what the change allows is that an applicant can get a head start on the processing of a BOWP, based only on the (pro forma) AoR. In some cases, this will shave months off the prior waiting time.

The novelty of this scenario is that, as noted, there is at the time of BOWP application, no ‘approval’ or even a completeness check to ensure that the application is substantively valid in any way. Rather, there is only evidence that an application has been uploaded, whether complete or defective.

What You Should Do

For any employee/applicant who has uploaded an Express Entry profile, and has a reasonable expectation of selection for an upcoming draw, and who further qualifies with regard to the four month requirement, etc., it would be prudent to commence preparation of a BOWP application and have it ready to file upon AoR receipt. This will speed up processing of the BOWP, and relieve much of the stress relating to the ‘limbo’ period that exists while awaiting permanent residence approval.

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

One key issue that has arisen in Canadian immigration law since 2012 is the requirement that an employer be able to later demonstrate that it has provided ‘substantially the same’ (“STS”) wages and working conditions to foreign employees as those set out in the initial offer of employment (which formed the basis of an LMIA and/or work permit approval). Failure to adhere to STS standards could mean that the government would impose sanctions on the employer, including restricting the ability to hire further foreign workers. Effective December 1, new regulations will also bring about potential monetary penalties. (Please see http://www.kranclaw.com/2015/07/further-consequences-to-employers-for-immigration-non-compliance/).

Any deviation of wages or working conditions for foreign workers from terms based on the initial offer which cross the (blurred) threshold from insubstantial to substantial could give rise to the determination of a violation. Since the introduction of STS, there has been confusion about dividing lines between substantial or insubstantial changes, or to put it another way, how to know when you cross the line.

In terms of wages, though not prescribed in law per se, and though questioned at times, it appears at this time that a raise of not more than 2% per year will not be considered a change warranting STS concern.

However, in terms of working conditions, there have been, since the inception of the STS concept, various indications/discussions/beliefs/etc. as to what constitutes a change which is more than insubstantial. In large part, this discussion centred around whether there was a significant change based on change of job duties alone, or whether a change of job duties that did not change the NOC category of the occupation meant that the conditions were indeed substantially the same (and no further action was necessary).

After conferring with government officials, Kranc Associates has been advised that at this time, and notwithstanding prior pronouncements or beliefs, that a change of job duties which does not impact the NOC classification, does not give rise to a change that would take the employer out of the realm of ‘substantially the same’. That is, where job duties change, but they remain within the same NOC category, the terms of employment remain substantially the same. However, despite this information, Kranc Associates is further advised that a change of duties should in any event be advised to Service Canada (for LMIA-based work permits) or CIC as appropriate, to document the change. Such notification, on a case-by-case, fact specific, basis, may give rise to the need for a full amendment application, depending on the opinion of the officer.

To summarize, the good news is that a change of duties without a change in NOC code (and without a significant change of salary) appears not to give rise to the need for consideration beyond STS, and as such, the employer will not be in violation of the requirements of the law. The less good news is that on a case-by-case basis, this may be considered differently, and therefore, no chances can be taken, and the appropriate government authorities should non-the-less be advised.

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

In our July 20, 2015 edition of ImmPulse™[1] , we noted that the requirements for employer compliance with regard to temporary foreign workers continue to grow stricter. As set out in that newsletter, new measures will come into effect on December 1 which will create a more stringent compliance regime, and which will have harsher consequences for breaches of the temporary foreign worker program. Among other issues, employers may face fines of up to $100,000 per violation. ImmPulse™ will have further information about developments as they become available and as we near the December 1 implementation date.

However, in addition to the above-noted federally implemented compliance issues, employers must also be aware of provincial legislation that may affect them, vis-à-vis foreign workers. Over time, provinces are implementing legislation or regulations that could impact their access to temporary foreign workers. Some of that legislation relates to issues such as payment of recruitment fees, or other issues about which a government may be concerned.

Today, we wish to focus on the recently-passed, and soon to be implemented ‘Ontario Immigration Act’. There are various aspects to the new law, but a great deal of it relates to creation of an employer registry. Registration may be required before an employer would be allowed to hire foreign workers. The conditions for the right to register are not yet set.

What is crucial to recognize at this time is that under the new legislation, powers are being provided to provincial government officials that include:

• The authority to enforce issues relating to contraventions of the Ontario act, OR, the Immigration and Refugee Protection Act (‘IRPA’ – the primary federal immigration legislation).
• The authority to ‘collaborate’ with the Government of Canada
• The authority to cooperate with the Government of Canada, and law enforcement agencies (or others bodies which may be designated)

Further, in terms of method of investigation, these government officials will have, among other powers, the right to:

• Access to all documents and records relating to an inspection
• Make ‘reasonable’ inquiries of any person with respect to an inspection
• Access any “data storage, processing or retrieval device or system…”
• Remove or copy any information collected

In view of the newness of the law (and its non-implementation to date), it is not fully clear how Ontario enforcement officers will be behaving given their powers. However, it would seem that in addition to any enforcement of provincially mandated issues, inspections by these officers could have implications leading back to the issues of federal enforcement noted above.

This legislation relates to Ontario, but certainly, expect possible similar laws in other provinces. We will provide relevant information as it becomes available.

Employers face ongoing hurdles to hiring foreign workers as well as increasing compliance requirements. It is crucial that all employers remain aware of the ongoing changes, and adapt accordingly.

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

 

[1] http://www.kranclaw.com/2015/07/further-consequences-to-employers-for-immigration-non-compliance/

In February of this year, Citizenship and Immigration Canada introduced a procedure whereby employers were required to submit, in advance of the filing of any non-LMIA work permit application, ’employer compliance’ documentation. This is carried out by way of submission of the ‘IMM5802’ form, which sets out information necessary to establish the legal basis for the LMIA exemption request. Employers also needed to start paying a fee or $230.

Now, further changes are in store with regard to this requirement.

[LMIAs are ‘Labour Market Impact Assessments’, a procedure whereby foreign workers can be recruited only after an employer carries out substantial recruitment activity, and files an application for approval. Non-LMIA work permits include intra-company transferees, NAFTA or other professionals, and all further types of applications where no evidence of recruitment in Canada is necessary.]

Effective October 26, the current system of submitting the IMM5802 via a specified email address will become obsolete. Rather, employers will need to log in to a new ‘Employer Portal’ (which is as yet unavailable), and carry out necessary activity there. As a bridging measure, IMM5802s will still be accepted with work permit applications submitted up to Nov. 20, 2015, but thereafter, only the employer portal method will be available. Where an IMM5802 was filed on or prior to Nov. 20, but the application is being made on November 21 or later, the employer will need to resubmit via the portal.

To date, no specifics have been provided with regard to the Employer Portal, vis-à-vis access, functionality, requirements for use, or otherwise. Certainly, we will apprise readers once information becomes available. In the interim, employers who are aware that employees will be seeking work permits on or after November 21, should be aware that they will need to utilize the new system, and that the IMM5802 form will no longer be accepted.

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

The Issue

Last week, we reported that the Alberta Provincial Nominee Program was discontinuing the receipt of applications until late January, 2016.

Now, the British Columbia Provincial Nominee Program has announced that it as well is no longer accepting applications in its Skilled Worker or Express Entry streams, until January, 2016.

The Background

The BC Provincial Nominee Program is a program administered by the province of British Columbia, through which applicants can seek permanent residence in Canada. (The nomination also acts as a Labour Market Impact Assessment [LMIA] when issued.) There are various streams.

As noted above, the streams currently being paused are the Skilled Worker and Express Entry streams. Note, however, that applications continue to be accepted in the Health Care Professional (Skilled Worker/Express Entry BC) category as well as the Northeast Pilot Project category. These categories continue to have high demands for qualified professionals. Further, applications continue to be accepted in the entrepreneurial stream, to a maximum of 200 per month.

What You Should Do

Certainly, those who may qualify under other programs such as the Canadian Experience Class, or Federal Skilled Worker program, should seek to utilize those programs wherever possible.

Note that it is expected that the BC program will change its criteria when the program reopens, and the new criteria are not yet announced. For those whose only option may be the BC Provincial Nominee Program, the best thing that can be done at this point, is to ensure that any application to be submitted is complete and ready to go for filing in January of 2016, recognizing, however, the reality that the change in the program may mean that they no longer qualify at that time.

It is also imperative that foreign workers and their employers, take any steps necessary in the interim to ensure that temporary worker status be maintained during any intervening periods.

Though we are not aware at this time of any other province formally pausing the intake of applications, it would seem that this trend may continue in view of the quotas each province or territory has, the current labour market conditions, and the backlog of applications already in process. For those who still wish to apply in other provinces, it may be advisable to proceed quickly, before any further changes are made.

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

The Issue

The Alberta Immigrant Nominee Program (AINP) has just announced that it is no longer accepting applications in any of its streams, until January 27, 2016.

The Background

The AINP is an Alberta program through which applicants can seek permanent residence in Canada. (The nomination also acts as a Labour Market Impact Assessment [LMIA] when issued.) There are various streams, but one of the key streams allows foreign workers already in Canada to be nominated by their employers, and as such, qualify for the program. It has sometimes been an important alternative to the ‘ordinary’ permanent residence application categories such as Federal Skilled Worker or Canadian Experience Class.

It has been clear in recent months (if not years), that the AINP has become overburdened. Processing times for AINP applications can be 2 years or more.

The AINP has indicated that it currently has an inventory of some 10,000 applications awaiting assessment, with hundreds more being received each month. Note that pursuant to its agreement with the federal government, the AINP has been allotted only 5500 nomination certificates for 2015. (Numbers for 2016 are not yet known, but in view of economic conditions, we would expect that the allotment will not grow, and may indeed shrink.)

What You Should Do

Employers and employees should be aware of not only the temporary halt to application intake, but also the long waiting times that will likely continue into the future. Certainly, those who may qualify under other programs such as the Canadian Experience Class, or Federal Skilled Worker program, should seek to utilize those programs wherever possible. For those whose only option may be the AINP, the best thing that can be done at this point, is to ensure that any application to be submitted is complete and ready to go for filing on January 27, 2016. It is also imperative that foreign workers and their employers take any steps necessary in the interim, to ensure that temporary worker status be maintained during any intervening periods.

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

An important, and often misunderstood, element of Canadian immigration law is ‘Implied Status’. Simply put, Canadian law provides that if someone is working in Canada, and submits an inland application to renew his work permit before it expires, he is permitted to continue to work until the work permit application is adjudicated.

Without going too deeply into the black letter law, what the relevant regulations actually says, is that a person is permitted to work in Canada without a work permit…

“until a decision is made on an application made by them [to renew their work permit], if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;” (Immigration and Refugee Protection Regulations s. 186(u))

This Implied Status has different implications for those who remain in Canada during the relevant period, versus those who may need to exit and return.

1. For People Who Remain in Canada

The implication of Implied Status for someone who remains in Canada while a work permit renewal application is pending seems quite simple: he can continue to work even though his work permit is expired. A few issues still need to be considered:

• Though there is nothing wrong with Implied Status, it can cause some secondary issues, such as the temporary loss of provincial health coverage. (There are often ways to deal with this, but it still something to consider.)
• Though the wording makes it completely legitimate to work in Canada while in Implied Status, recognize that the wording of the section says that the person is at that time working without a work permit. This is not a paperless work permit – it is just the right to work without a work permit. This puts the person in the same general category as, for example, foreign journalists, foreign performers, and business visitors. Again, there is nothing wrong with this, but it is not the same as working under a work permit. This can raise nuanced questions such as whether this time counts toward time spent working in Canada for the purposes of permanent residence. Notwithstanding this wording, CIC has always recognized this as legitimate work time for such purposes.

2.  For People Who Exit and Seek to Re-enter Canada

However, different issues arise when a person wishes to depart Canada and return while in Implied Status. This is not an infrequent occurrence. Some of the issues in this regard include:

• The wording of the section indicates that the person may continue to work if they have “remained” in Canada after the expiry of their work permit. If someone departs Canada, in accordance with the plain reading of the section, he has not ‘remained’, and as such, Implied Status terminates.
• Notwithstanding the foregoing, CIC has made some pronouncements to alleviate some of the hardship encountered for those who must leave Canada, and then seek to return. These include:
  • As a first option available to an officer at a Port of Entry, a person may be permitted to return to Canada, however, only as a visitor. Their right to work will not be ‘reinstated’ until the work permit application is adjudicated. (The applicant will also need to show the ability to support himself during the intervening period.)
  • An officer may also issue a work permit if he determines on the CIC computer system that the work permit has been approved at the inland processing centre, where the application was filed.
  • If the inland application has not yet been adjudicated, the officer may permit someone to apply for their work permit at the Port of Entry at that time. Though this is also not an infrequent situation, it is something that cannot be taken for granted.
• Recognize that it is still possible for an officer to deny entry altogether. The availability of the ‘saving’ provisions noted above is not automatic. In particular, where an officer feels that some action is being taken for expediency to abuse or ‘manipulate’ the system, this could cause issues. This could happen, for instance, where an impatient inland applicant decides to drive to the border and just get his work permit by immediately re-entering Canada. Unless there is a legitimate reason, the renewal process is designed to be conducted inside Canada. (CIC otherwise looks at this as clogging already busy ports of entry.)

Where possible, we typically advise our clients not to leave Canada while under Implied Status, to avoid some of the issues noted for those who exit and seek to re-enter. We recognize that sometimes departure is unavoidable, and where it is to occur, we seek to mitigate the potential risks (e.g. by providing evidence of the inland application, and submissions as to why a work permit could be issued at the Port of Entry), but the best protection is still just not leaving Canada.

Implied Status is an important and useful tool for foreign workers in Canada, particularly in view of seemingly ever-lengthening inland application processing times. It is important though to recognize the specific considerations above, in order to ensure that Implied Status does not lead to loss of status.

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