Category: ImmPulse™ Newsletter

What’s New

As set out in our last issue of ImmPulse™, Citizenship and Immigration Canada (CIC) has announced that, effective February 21, 2015, work permit applications in LMIA-exempt (‘International Mobility’) categories will require additional compliance measures, notably, employer declarations/offer summaries. This will impact many categories including intra-company transfers, and NAFTA professionals.

Despite the substantial impact of this announcement, and the proximity of the announcement to the effective date, information is only slowly and gradually being released to allow the immigration community to digest and understand the requirements.

Today, CIC released the form that they have created that employers will be required to complete for LMIA-exempt work permits. The actual form can be found at http://www.cic.gc.ca/english/pdf/kits/forms/imm5802e.pdf. We urge readers to review the form, as it will become a staple of everyday life for this involved in work permit applications.

Much of the information requested seems innocuous (though time-consuming). However, initial analysis of the information requested reveals possibly difficult or contentious requirements. Among other concerns, the forms asks for:

• Information about Company Size
  • It is not clear how this request may be relevant. It is also not clear if this means just the Canadian business, or whether this includes foreign affiliates where applicable.
• Employer ID/Canada Revenue Agency Business Number
  • As innocuous as this seems, this raises concerns about (a) requests for Service Canada employer IDs (which should be related to LMIAs), and (b) situations where the employer is a foreign company, which is not out of the ordinary.
• Applicable Licensing Provisions
  • There are a number of otherwise regulated professions which are exempt from CICs scrutiny. For instance, NAFTA professionals do not need to demonstrate licensing to CIC; only that they have the appropriate credentials. This question implies that this is something that CIC will now wish information about, which could greatly complicate an application.

Impact

It is not clear how strictly each element will be enforced to create a ‘complete’ form. As noted, specific questions may not be relevant, or legally appropriate. We advise readers to ‘brace for impact’, and we will continue to provide information and strategic considerations as they are provided or as they evolve.

Further information

We refer readers again to the applicable form at:

http://www.cic.gc.ca/english/pdf/kits/forms/imm5802e.pdf.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Effective Date:                       February 21, 2015

What’s Changed:

Citizenship and Immigration Canada (CIC) has announced that, effective February 21, 2015, work permit applications in LMIA-exempt categories will require additional compliance measures. LMIA-exempt work permits are now referred to as work permits under the ‘International Mobility Program’.

Under the new measures, before employees can seek non-LMIA based work permits (see below re application types), employers will be required to meet certain guidelines. Employers will need to:

• Provide specific company information
  • Specified forms and/or guidelines are anticipated, and readers will be apprised
• Provide an offer of employment
• Pay a $230 compliance fee online

Failure to Comply:

Failure by employers to comply with the above can lead to penalties not unlike those now in place for LMIA-based work permits. Penalties may include:

• Monetary penalties
• Ban on foreign worker recruitment, and
• Possible criminal sanctions

Who is/Case Types Impacted:

Examples of application types that will be impacted include:

• Intra-Company Transfers
• NAFTA Professionals
• Reciprocal Benefit
• Significant Benefit
• Employer-specific International Experience Class
• Emergency Repair, and
• Treaty-based work permits (notably professionals)
  • GATS
  • Canada-Chile Free Trade Agreement
  • Canada-Peru Free Trade Agreement
  • Canada-Colombia Free Trade Agreement
  • Canada-South Korea Free Trade Agreement

Open work permit types will not be impacted. Examples of these application types include:

• Spousal
• Post Graduate
• Working Holiday (this does not include employer specific IEC work permits, as noted above; i.e. employer specific IEC work permits would need to meet the new requirements)
• Bridge

However, open work permits will now be required to pay a further $100 fee (beyond the usual $155 work permit fee) in application for such work permits.

Further information

Additional information can be found at: http://www.cic.gc.ca/english/department/media/notices/2015-02-09.asp.

What Employers and Employees Need To Do:

Employers need to ensure that they are aware of the requirements and comply. Systems should be put into place with regard to information required and other aspects of the new requirements. Internal company personnel should be advised, failing which, they may seek a non-LMIA work permit without realizing the requirements, which can lead to sanctions for the employer, and rejections for the employee.

Employees should check with their counsel or HR departments before planning any work in Canada, and ensure that they are fully instructed of the requirements before proceeding to Canada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

In June 2014, Citizenship and Immigration Canada (CIC) released Operations Bulletin 575, containing new guidelines with regard to Intra-Company Transfers for personnel with specialized knowledge (ICT-SK). These pronouncements had tremendous impact on the Canadian immigration system, particularly since Intra-Company Transfer provisions are among the most widely-used means by which foreign workers are granted work permits. Some of these guidelines altered well-established concepts upon which employers had relied for many years. (There was no modification to the other branch of the Intra-Company Transfer allowance – the allowance for those with senior managerial or executive level positions.)

Among the new requirements were:

1. ICT-SKs would now need to meet the median wage requirements for their occupation (based on the National Occupational Classification).  [The new guidelines relieve officers of this consideration with regard to Free Trade Agreement (FTA) based Intra-Company Transfers (notably NAFTA), but indicates that the issue is still a factor to be considered, even under FTAs.]
   • Previously, there was no such requirement.
2. ICT-SKs would have to have ‘advanced expertise’ with the company PLUS ‘proprietary knowledge’. 
   • Previously, the test was ‘advanced experience’ OR ‘proprietary knowledge’.
3. The terms ‘advanced expertise’ and ‘proprietary knowledge’ were in turn further narrowed. 

   ‘Advanced expertise’ was to be ‘recent and significant’ [and presumably more than just the technical one year minimum].

•         Previously, this requirement was not stipulated.

  The considerations for ‘proprietary knowledge’ was narrowed, requiring, for instance, that the knowledge be unusual within the host company, and that it be critical to the company.

•            Previously, the term allowed for broader interpretation.

4. ICT-SKs were to be “clearly employed by, and under the direct and continuous supervision of, the host company”.
   
   • Previously, there was no such requirement, though certain visa posts were starting to unilaterally implement this concept.

Now, with the passing of time, we have seen how some of these guidelines are being implemented in practicality. Certainly, the process is still relatively new, and will continue to evolve (particularly in the current, stricter, Canadian immigration environment), but as of this time, there are a few things we have learned that allow us to navigate the system effectively.

1. Re: New median wage requirements. 
   1. We have seen increased scrutiny with regard to this provision. Not only are median wage requirements being expected, but indeed, often higher than median wage, depending on the applicant’s seniority. That is, it may be true that the median wage for Occupation X is $Y/hour, but Ms. Smith, the applicant, has 10 years’ experience, so presumably she should make much more than just the median wage.
   2. Further, this has been true for both FTA and non-FTA applicants.
2. Re: New ‘advanced expertise’ PLUS ‘proprietary knowledge’ requirement. 
   1. This is of course a much more difficult standard, but officers are indeed insisting on both elements. It is therefore crucial to provide evidence and/or stipulate in supporting documentation how both aspects of the test are met. Failure to substantiate one factor or the other will likely result in refusal.
3. Re: Changes to the terms ‘advanced expertise’ and ‘proprietary knowledge’. 
   1. With regard to the redefinition of the terms themselves:
      1. Firstly, the guidelines say that the greater the time with the company (within the last 5 years), the greater the presumed advanced level. This is creating in the minds of many officers a de facto reality that advanced experience is indeed 2 years or more. This also seems to contradict the very principle of a 1 year requirement already built in to the law for the purpose of establishing sufficient experience. Non-the-less, people with a mere’ 1 year of experience may find it more difficult to get consideration.
      2. Secondly, what is ‘proprietary knowledge’? Interestingly, CIC has distinguished between proprietary knowledge and advanced proprietary knowledge. In practicality, however, it would seem to all boil down to proprietary or not.
         1. That being said, it should be noted that CIC is accepting arguments of proprietary knowledge that are based on information that is not necessarily patented or otherwise protected. Proprietary is being considered to include internal processes that are not known outside the company. Certainly, the closer to patented, the better, but the lack of a patent does not necessarily stop the viability of the application.

4. Re: Employees to be “clearly employed by, and under the direct and continuous supervision of, the host company”. 
   1. This can sometimes be a very difficult standard. For instance, what is ‘employed by’? Does this mean that such Intra-Company Transferees needed to be on Canadian payroll? This was indeed the initial understanding of the provision by many in the field. However, it now appears to be accepted that the test being implemented is more about being supervised by, and carrying out activity on behalf of, the Canadian entity. Transfer to Canadian payroll may be more indicative of this, but officers are not insisting on it.  Documentation that may assist in this regard can include corporate charts, a job description which clearly evidences that this matter is supervised by and/or carried out on behalf of the company, etc.

Yet again, the rules are still new and still evolving. But with the passage of time, we are learning to adapt, and have seen the rules take on some of the interpretations above. Certainly, those seeking to utilize the Intra-Company Transfer provisions afforded by Canadian law must continue to be very cautious in their considerations under the new guidelines, to avoid frustration or complications.

On Friday, January 23, 2015, Benjamin Kranc will be speaking at the Annual Conference of the Human Resources Professionals Association (HRPA) in Toronto. His topic will be:

     A Passport to Effective Foreign Worker Recruitment:
     Understanding Canadian Immigration in a post-RBC World

For further information, please see the HRPA web site listing at:

     http://www.hrpa.ca/Conf2015/Sessions/Pages/SessionDetails.aspx?SessionScheduleId=114

We had previously written about the new ‘Express Entry’ Canadian permanent residence application system. The system is set to commence on January 1, 2015. We noted in our last article that many of the issues were still unclear. Though it may not be correct to say that we now have complete clarity, there are indeed recent developments that enhance our understanding of the system, which we hope will be of value to our readers.

Existing Permanent Residence Programs

We first note that (theoretically), Express Entry does not change the need to first qualify under existing economic class permanent residence categories, which will continue to exist (it is the nature of the processing that will change, to be canvassed below). As noted in previous articles, these categories are:

 

• Canadian Experience Class (CEC) – an application which allows a foreign worker with at least one year of Canadian work experience to ‘convert’ his/her work permit to permanent residence.
• Federal Skilled Workers (FSW) – a system by which an applicant garners points for factors including age, education, language, occupation, length of experience, and arranged employment. If an applicant garners sufficient points, he/she will qualify for permanent residence.
• Federal Skilled Trades Program (FSTP) – this program allows skilled tradespeople an opportunity to obtain permanent residence based on experience, language, and a job offer or provincial certification. In many ways, the considerations in this category are hybrids of the CEC and FSW, applied to skilled tradespeople.

There also exist Provincial Nominee Programs, and the Quebec selection program, wherein provinces nominate/select candidates based on criteria that they set, and which are separate from the above. These applications will not be affected by the new processes (subject to clarification below).

It is important to note that though we speak of these programs continuing based on the same legal criteria, there are nuanced changes in some situations (and of course, future changes to these programs could occur at any time). For instance, under the current process, one must have experience in an occupation on a prescribed list, in order to qualify for the FSW program. Further, there are quotas set for the number of FSW applicants generally and per occupation. Under the new scheme, the list will be eliminated, and all applicants in NOC 0, A, or B categories will be eligible.  This is a broader topic that will be covered in future articles, but at this time, the essential reality is that the programs remain essentially intact.

Permanent Residence Processing Up To December 31, 2014

Until now, when someone qualified in one of the above programs, he/she submitted an application, which was to be processed on a first in-first out (FIFO) basis. There were variations to the FIFO situation in view of the fact that some visa posts processed faster than others, ‘targets’ (quotas) were set for visa posts, and various other factors, but the theory remained that the process was driven by the applications received, and the intent to process them in an assembly line fashion.

Permanent Residence Processing From January 1, 2015 and Onward

Under Express Entry, the FIFO  system is eliminated. Instead, all potentially qualified applicants (again, based on the existing federal permanent residence categories as noted above), submit a profile online, which is valid for one year. The government then, from time to time, selects from this pool.  (Neither the exact schedule nor the number of selections per round, is available yet, though the first selection round is tentatively set for the end of January 2105.)

What we can now share with readers is a better understanding of how one gets chosen from the pool.

To be clear, to go into the pool, one must meet the provisions of one of the existing permanent residence programs. Indeed, the system will automatically determine whether a person qualifies under a particular permanent residence program based on the factors input, including work history in or out of Canada, language skills, etc. The system will also force those with no Canadian job offer to register with the Canadian Job Bank, where there could be a potential match up with employers seeking the person’s skills (and as such, ultimately the ability to secure an LMIA-based job offer which will assist them in the process).

However, to be selected from the pool, a different set of criteria must be met, as will now be described.

• Under the new ‘Comprehensive Ranking System’ (CRS), the maximum number of points is 1200. A breakdown of the points can be found athttp://www.cic.gc.ca/english/express-entry/grid-crs.asp#a4. Points are indeed awarded on the basis of ‘Human Capital’ factors including age, education, language, etc., but this is not to be confused with an assessment under the FSW program. It is based on these points that an applicant could receive an ‘Invitation to Apply’ (ITA), to proceed with the process as further noted below.
• It is important to recognize that the points will be used to rank candidates against each other, rather than to provide a minimum passing mark (which would be similar to the FSW program). That is, as it is currently explained, when the government is set to carry out one of their selections, they will set a target of how many applicants they will choose, and take the top ranked applicants. For example, if a round of selections is to provide 1000 ITAs, it is the 1000 top ranked applicants that will qualify; it is not a question of meeting a threshold of X points.
• Perhaps more importantly, candidates receive extra points for LMIA supported job offers or provincial nominations. Based on the calculations, these points will always place these candidates at the top of the ranking chart – and the government is indicating that these people will receive ITAs.
  • Please note that there are two ways to get LMIA ‘credit’. One way is a situation where a worker is already in Canada, based on an LMIA-approved job. The other way is to seek an LMIA for the purpose of ‘arranged employment’ with regard to permanent residence/Express Entry. The latter LMIA applications are free.
  • To clarify the PNP situation – though we noted above that PNP programs will continue to run independently of the new system, there will also be ‘enhanced’ PNP candidates who will be part of Express Entry. This will occur in cases where a province chooses a candidate from the pool – not unlike what an employer would do.
• What seems to be a bigger surprise is that unlike previously where a person with a non-LMIA based work permit (e.g. an Intra-Company Transferee, NAFTA Professional) got credit for ‘arranged employment’ in Canada, this is no longer true.  To get credit for arranged employment (and as such the far higher ranking in the system), an employer would have to secure an LMIA for positions filled by a foreign worker, even though no LMIA was required to fill the position for the initial work permit.
  • In view of the fact that LMIA-based applications are given far greater priority (if not effectively guaranteed immigration), the government is in essence forcing employers to first research the availability of Canadians (through the Job Bank) before making an offer to a candidate.
• What this means for non-LMIA based candidates, is that they could still qualify for permanent residence, but only if the number of ITAs offered on a selection round is greater than the number of people who have the job offers – which seems less and less likely.

After all of the above, if a person is selected from the pool, then he/she is given an ITA and 60 days to submit an application, with all appropriate evidence (language certificates, educational credential evaluations, etc. – these should actually be done prior to profile submission to ensure that the person will be getting the points he/she thinks he will be getting).  Failure to meet the timeline will result in a withdrawal of the ITA and a refusal of the application. That person would need to re-enter the pool as set out above. The government is promising expedited processing, in about 6 months.

Impact

Though we have strived with this article to provide the latest information on the changes coming, and to explain the process appropriately, there is still, as with any new system, still further understanding needed in many respects, and we will continue to update readers. Clearly, however, the status quo is ending, and stakeholders need to be prepared to take action to accommodate the legal and procedural needs set out in this article.

What Employers and Prospective Immigrants Need to Do

As an employer:

• Recognize that high-level employees (e.g. intra-company transferees), no longer get any kind of ‘free pass’ into permanent residence. Rather, an LMIA/arranged employment will now need to be secured for that position/person. This cannot be taken for granted.
• Notwithstanding supposed faster processing, do not hesitate in getting the permanent residence process rolling for relevant individuals. Full evidence should be secured immediately (language tests, educational credentials, etc.) to allow smooth processing.
• Whether with regard to high-level employees or otherwise, recognize that LMIAs are becoming more and more a reality of the Canadian immigration system, and take action to assure success in those cases (though a separate topic, this can relate to recruitment efforts, etc.)

As a prospective immigrant:

• Ensure that you meet the criteria for entry into the pool
• Submit a profile online
• If you do not have a Canadian job offer, register with the Job Bank
  • (Better yet, if possible, get an approved job offer)
• If you are working in Canada with an LMIA based work permit and wish to become a permanent resident, take immediate action as that work permit could expire, and its value in your application could therefore drop (in whole in in part).
• Be ready with necessary documents in anticipation of an ITA, failing which, you may not meet the deadlines.

The challenges ahead are great. Knowledge and preparation will allow participants to make the best of the new system.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

In addition to the myriad of continuing changes to Canada’s Temporary Foreign Worker Program (TFWP) made available to the public, there is a significant amount of unpublished information ‘below the surface’. Failure to be aware of what Employment and Social Development Canada (ESDC) didn’t tell you can lead to devastating effects in the course of seeking to hire a foreign worker.  (ESDC administers the TFWP along with Immigration Canada.)

Before hiring a foreign worker (with few exceptions), an employer must seek a Labour Market Impact Assessment (LMIA) to substantiate why a Canadian is not being hired. The program is administered by ESDC, but operated by Service Canada. Here are some crucial, and unpublished, factors that ESDC has indicated are to be considered when seeking an LMIA:

• An LMIA application can be submitted only after the four week recruitment period concludes. That is, although the LMIA process may take longer than four weeks, an employer cannot launch an application, expecting the recruitment to be concluded and provided to Service Canada before the application is considered.
• Ads for LMIA purposes must post wages. The internal directives indicate that the wages can be posted as a range, but the low end of the range must meet the prevailing wage, that would ordinarily be the minimum salary possible for the position in that location.
• ESDC dictates that recruitment for LMIA applications needs to be carried out on the applicable national or provincial job bank, plus two additional methods. Examples of the two additional methods are given, such as general employment web sites, specialized web sites for specific industries, social media web sites, etc. What is not made public, however, is that each of the two additional methods must be a different type of recruitment. That is, only one of the two postings can be to a general employment web site (i.e. you can’t use both Monster AND Workopolis to satisfy the requirement for two postings), only one of the two posting can be to a social media site (i.e. you can’t use both LinkedIn AND Twitter to satisfy the requirements for two postings), etc. Certainly, this would not be obvious from the government’s publicly-provided information.
• The employer must post all mandatory information directly in the advertisement.  A link to the information is not acceptable.
• The requirement to target underrepresented groups may be satisfied through the use of web sites such as Kijiji, however, the ads must be explicit that underrepresented groups are encouraged to apply.
• There may be occasional leniency in allowing an employer not to disclose certain information in an ad (e.g. salary, company name). This may occur, for example, in high profile occupations (e.g. senior executive), or for competitive reasons. ESDC (via Service Canada) may allow this, if the employer can demonstrate that the advertised position should be exempt from including any of the listed mandatory job advertisement information. Recognize, however, that an employer seeking an LMIA will not know if this position has been accepted until the application is adjudicated.
• Specific geographic regions may still have leniency in waiving recruitment requirements, but this is not fully articulated. If the prior LMO regime is to be instructive in this regard, consideration could be given to waive the recruitment requirements when the following are present: (a) a high salary (e.g. $200,000/year), (2) very high skilled (e.g. NOC 00), (3) specialized nature of the position (e.g. international knowledge); and (4) recruitment efforts will not likely result in finding the expertise being sought. Yet again, the employer will not know if the position in the LMIA application is accepted until the application is adjudicated.
• Head-hunters can be considered as one of the additional methods of recruitment, but the employer must demonstrate that the head-hunter meets the requirements otherwise set out, by providing proof of its efforts.  As well, the advertisements must state the employer’s name and for job advertisements where a CRA business number is required by the employer’s business number.
• ‘Spin Off’ advertisement does not constitute an appropriate method of recruitment. That is, the employer must post the ad, and cannot rely on a web site which has automatically uploaded information from the original posting. As such, if an ad appears on Monster because Monster automatically reposted it from an industry-specific web site, the Monster ad does not count. (The Monster ad would count if the employer itself posted the ad on Monster).

Actions to Take:

Changes to the TFWP are continuing. Employers must ensure that they are constantly updating their knowledge base vis-à-vis the TFWP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The Background

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

Previous Changes to the System

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

What’s Changing Now

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

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

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

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

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

What Employers Need to Know and Do

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

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

The News

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

Background

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

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

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

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

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

New Provisions and Benefits

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

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

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

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

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

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

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

Impact

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

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

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

Background

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

• Canadian Experience Class (CEC) – an application which allows a foreign worker with at least one year of Canadian work experience to ‘convert’ his/her work permit to permanent residence.
• Federal Skilled Workers (FSW) – a system by which an applicant garners points for factors including age, education, language, occupation, length of experience, and arranged employment. If an applicant garners sufficient points, he/she will qualify for permanent residence.
• Federal Skilled Trades Program (FSTP) – this program allows skilled tradespeople an opportunity to obtain permanent residence based on experience, language, and a job offer or provincial certification. In many ways, the considerations in this category are hybrids of the CEC and FSW, applied to skilled tradespeople.

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

The New ‘Express Entry’ Model

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

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

Impact

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

What Prospective Applicants and Their Employers Should Do Now

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

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

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

Background

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

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

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

What Has Changed

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

What is the Impact of the Changes:

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

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

Actions to Take:

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

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

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