Category: ImmPulse™ Newsletter

With the advent of 2023 and an updated National Occupational Classification (NOC) system, Immigration Canada has recently updated its list of eligible occupations under Category B of the Global Talent Stream (GTS), along with the associated NOC codes. [Category A is for companies who have been approved generally to use the program; Category B is for companies who may use the program intermittently or who seek to fill single or limited-number positions.]  As readers will know, the GTS is a somewhat streamlined version of a Labour Market Impact Assessment (LMIA), where no recruitment is required to be shown. However, users of the GTS should recognize that there are ‘back end’ issues in terms of benefits that the government requires of companies who take advantage of the program. In Category B, employers must show an increase in skills and training investment (mandatory), along with two further commitments which may include, e.g., job creation, transfer of knowledge to Canadians, or enhanced company performance.

The new GTS Category B Occupation List (with concordance) is:

Please note that along with the information above, each situation must be checked to ensure occupational congruence between the job offered and the NOC description, appropriate salary, and other elements of a GTS application.

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

As readers of ImmPulse™ will be aware, Canadian immigration considerations relating to occupational classification (which impacts many types of applications) require an understanding of the National Occupational Classification, better known as NOC. The NOC, as the name implies, is a system of occupational classification, and any time there is an issue relating to occupation – whether in a permanent or temporary matter – the NOC code for that occupation must be determined and/or considered. The NOC is a hierarchical structure that classifies occupations based on either their managerial level, or based on experience and educational requirements. [The NOC also considers that breakdown of structures within specific occupational fields, so that the hierarchical structure is then applied to, e.g., health occupations, business occupations, etc.]

There are consequences to NOC classification in terms of qualification for specific programs (e.g. qualification under economic class permanent residence programs, or applicability of professional work permit categories), the availability of spousal work permits, and other issues.

On November 16, 2022, the Canadian immigration system will update the NOC system. The internal structure will change and will go from the current 4 digit/5 level classification, to a new 5 digit/6 level classification known as ‘TEER’, which stands for training, education, experience, and responsibilities.

Though the transition will not significantly impact most occupations, the new ‘split’ that generates 5 rather than 4 levels, occurs in what was formerly NOC B (broadly, occupations requiring college level education or specialized training), and this must certainly be considered. [Note that in Canada, ‘college’ usually means an institution that offers some kind of diploma, rather than a university degree.]

The general concordance of the current (2016) vs. new (2021) breakdowns, and the associated requirements of the levels, is as follows (note that there are some further details beyond the scope of this article, but these are the primary considerations):

NOC 2016        `                                                        NOC 2021
Skill type or level                                                    TEER category

As can be seen, the new NOC breakdowns are somewhat more precisely worded and classified.

Some of the practical implications of the changeover are:

• For Express Entry permanent residence applications, the minimum occupational classification was generally a NOC B. This will now be TEER 3. In practical terms, this will allow some occupations, and disallow other occupations, relative to the previously considered occupations.
  • Specifically, the following occupations will now be eligible for consideration:
    • Payroll administrators (NOC 13102, previously NOC 1432)
    • Dental assistants and dental laboratory assistants (NOC 33100, previously NOC 4311)
    • Nurse aides, orderlies and patient service associates (NOC 33102, previously NOC 3413)
    • Pharmacy technical assistants and pharmacy assistants (NOC 33103, previously NOC 3219)
    • Elementary and secondary school teacher assistants (NOC 43100, previously NOC 4413)
    • Sheriffs and bailiffs (NOC 43200, previously NOC 4421)
    • Correctional service officers (NOC 43201, previously NOC 4422)
    • By-law enforcement and other regulatory officers (NOC 43202, previously NOC 4423)
    • Estheticians, electrologists and related occupations (NOC 63211, previously NOC 6562)
    • Residential and commercial installers and servicers (NOC 73200, previously NOC 7441)
    • Pest controllers and fumigators (NOC 73202, previously NOC 7444)
    • Other repairers and servicers (NOC 73209, previously NOC 7445)
    • Transport truck drivers (NOC 73300, previously NOC 7511)
    • Bus drivers, subway operators and other transit operators (NOC 73301, previously NOC 7512)
    • Heavy equipment operators (NOC 73400, previously NOC 7521)
    • Aircraft assemblers and aircraft assembly inspectors (NOC 93200, previously NOC 9521)
  • The following occupations will no longer qualify for consideration under Express Entry:
    • Other performers (NOC 55109, previously NOC 5232)
    • Program leaders and instructors in recreation, sport and fitness (NOC 54100, previously NOC 5254)
    • Tailors, dressmakers, furriers and milliners (NOC 64200, previously NOC 6342).

• Certainly, for temporary work permits, these same occupations should be considered vis-à-vis work permit categories, spousal work permit eligibility, etc.
  • Under the Temporary Foreign Worker Program (essentially, where a Labour Market Impact Assessment is required), there may be differences in considerations given reclassification of occupations, and
  • Under the International Mobility Program (essentially, where no LMIA is required), there may also be different considerations in terms of professional categories and otherwise.
• Other programs may also be impacted, including the Atlantic Immigration Program, the Rural and Northern Immigration Pilot, and various Provincial Nominee programs.

Employers and employees, with regard to both temporary and permanent immigration matters, should obviously consider the ramifications that may impact their particular situations.

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

Employment and Social Development Canada (ESDC), the entity responsible for setting various requirements concerning the Temporary Foreign Worker Program (TFWP) has indicated that it will be updating the figures for ‘Median Wage’ during the week of November 14. Median Wage is the minimum threshold which employers are required to offer foreign workers when seeking to employ them through a Labour Market Impact Assessment (LMIA – the TFWP process to secure approval for employers to hire foreign workers). Wages vary based on occupation type, and geographic region. Median wage information can be found by searching at https://www.jobbank.gc.ca/trend-analysis/search-wages. (Median wage can also impact some non-LMIA work permit categories.)

Employers who are advertising as part of the required pre-LMIA process, or who have an LMIA application in process, or indeed, who are currently employing an LMIA-based foreign worker, will be required to update the wage offered/paid, as the case may be, accordingly.

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

Until now, foreign students studying at Canadian post-secondary learning institutions were allowed to work off-campus for up to 20 hours per week.

The government has now announced that from November 15, 2022 to December 31, 2023, post-secondary foreign students will no longer face the 20 hour restriction. Effectively, foreign post-secondary students will be allowed to work ‘full-time’ off-campus – subject of course to relevant employment standards or other legal issues, and the realities of their time vis-à-vis their studies, etc.

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

Effective September 26, employers who employ foreign workers in Canada will have additional obligations to meet.

Note that though the new regulations relate generally to foreign workers and those that employ them, the specific requirements are dependent on whether the foreign worker is working in Canada through one of the two types of work permit programs, namely:

• The ‘Temporary Foreign Worker Program’ (“TFWP” – essentially, work permits which required an LMIA), or
• The ‘International Mobility Program’ (“IMP” – essentially, work permits which are secured without an LMIA).

There are numerous new requirements, some that are more pro-active, and some that are more compliance-based.

Among the new ‘pro-active’ obligations are the following:

With regard to some of the more compliance-based requirements, note the following:

• For employers who have not utilized the TFWP in the prior six years, ESDC will consider whether in the prior two years the employer has made reasonable efforts to maintain an abuse-free environment
• ESDC and IRCC will now have the authority (subject to Privacy Act considerations), to seek information from third parties to confirm compliance (e.g. payroll companies)
• Employers must confirm (based on, and in a manner applicable to, the relevant program) that they are not recovering, directly or indirectly, from a foreign worker, any fees related to recruitment, LMIA processing, or compliance.

There are certainly more details to these new regulations which are too extensive to expand on in this article, but employers should seek appropriate counsel to ensure that they are compliant with these consequential new regulations, failing which, there may be penalties and/or the inability to hire foreign workers.

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

As widely anticipated, it is now being reported that Canada will allow current COVID-related travel requirements to lapse at the end of September, meaning that effective October 1, travel to Canada will essentially be as it was prior to COVID. Though we await formal government pronouncements/web site updates, this information appears to be reliable and current. Notably therefore:

• There will be no restriction on unvaccinated travellers,
• Random on-arrival testing and possible quarantine based thereupon will terminate, and
• Use of ArriveCAN will not be required (though it may still be used on a voluntary basis)

(This is separate from the issue of whether masks must be worn on airplanes or trains – about which further information is awaited – but this issue of course does not impede the ability to enter Canada.)

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Just to note, separately, that there are still beneficial inland COVID-related policies that remain in place, such as:

• the ability to apply for a work permit inside Canada that previously needed to be sought abroad (in effect until February 28, 2023), and
• the ability to change employers in Canada before work permit processing is complete (in effect until revoked). [As an aside, the processing for these matters seems to have slowed considerably recently.]

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

In our June 13 issue of ImmPulse™, we advised that the government of Canada had temporarily suspended random COVID testing for arriving passengers at Canadian airports.

The government has indeed now reinstituted such random testing for arriving passengers in Toronto, Calgary, Vancouver, and Montreal. The requirement is effective Tuesday, July 19. However, such random testing will be done at designated off-site testing facilities, and must be carried out by the traveller within one day of their arrival in Canada. No quarantine is required while awaiting test results. For those testing positive, quarantine may then be required. (For connecting travellers, the test may be done at a relevant facility at their final destination, or through a virtual self-swab appointment.)

This does not alter any other aspect of Canadian COVID-related requirements, including rules relating to unvaccinated travellers, and the need to utilize the ArriveCAN app.

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

In many situations, Canada allows foreign workers who have reached a certain stage of processing of their permanent residence applications, to seek an open work permit, typically referred to as a ‘Bridging Open Work Permit’ (BOWP). Recognizing that renewing their prior ‘regular’ (closed/employer specific) work permit may have some unnecessary hurdles by the time the person is virtually a permanent resident, and given the time frames involved, the government has provided this mechanism.  (Issues involved in renewing the prior closed work permit may include the need to secure a new Labour Market Impact Assessment (LMIA), the reaching of a time cap relating to certain work permit categories, and other considerations.)

Though the idea is similar, there is a unique parallel kind of work permit available to PR applicants through the Quebec immigration system. The authority to allow for a work permit for particular Quebec permanent residence applicants is found under LMIA Exemption Code ‘A75’. Note that this is an employer-specific (not open) work permit, but it is still based on the concept that the Quebec-based foreign worker is near completion of his/her PR process, and will be allowed to work without needing to go back to the legal category of his/her original work permit. To be eligible, the foreign worker must have an offer from a Quebec employer, and must be residing in Quebec and authorized to work in Quebec. He/she must also have a CSQ (a selection certificate for the Quebec PR process; with an appropriate selection category) or be in the post-CSQ federal PR application process.

The federal government has recently clarified a number of issues for such work permits. The most notable issue is that that such A75 applications MUST be made through the inland/online processing system, and may NOT be made at a port of entry. This is based on the rationale that applicants must be physically in Canada as temporary residents, in order to qualify for the work permit. (The government also clarified that entrepreneurs and self-employed applicants are not eligible under A75; and should consider other categories such as entrepreneurial allowances under LMIA Exemption Code C11.)

As such, Quebec-based foreign workers who have a CSQ or are in the post-CSQ federal PR process, seeking an A75 based employer-specific work permit should ensure that they do so through proper channels, and notably, should not seek to secure such a work permit at a port of entry.

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

The government of Canada has announced that random COVID testing of arriving travellers at Canadian airports is suspended until June 30. Note that:

• The announcement does not appear to remove the testing from land border crossings (or other methods of entry to Canada)
• This provision does not apply to unvaccinated travellers (who may be allowed entry to Canada in limited circumstances). [Note further that in some cases, unvaccinated travellers may also have quarantine requirements.]

It is expected that new off-site testing procedures will be implemented beginning July 1, and we await details on that process.

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

In or about 2017, it was announced that ESDC/Service Canada, in cooperation with the province of Alberta, would refuse to process LMIAs in Alberta for various designated occupations (see http://www.kranclaw.com/2017/05/alberta-limits-positions-that-can-be-filled-by-foreign-workers/). Over time, the list has been modified and updated. (This is separate from the securing of work permits for non-LMIA, or International Mobility Program, categories, which remained open.)

However, it has now been announced that the bar on LMIA processing for listed occupations in Alberta would be removed. That is, there is no longer any restriction on the processing of LMIAs for any occupation in Alberta, and therefore employers in Alberta can now seek foreign workers under the Temporary Foreign Worker Program, where appropriate.

Of course, employers must still meet all relevant elements required to secure an LMIA, justifying the need to hire a worker from outside Canada. This includes complying with all recruitment mandates, offering appropriate salaries, etc.

This announcement comes on the heels of other announcements easing LMIA requirements (see http://www.kranclaw.com/2022/04/changes-to-canadas-temporary-foreign-worker-program/).

This should of course provide some benefit to Alberta employees who have been inhibited from seeking foreign workers for the last few years.

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