Article: New work permit option represents lifeline for some post-graduation work permit holders

International Students who have completed their studies and are in Canada on post-graduation work permits that have recently expired or are soon to expire have been given a lifeline in the form of a new work permit program.

Immigration Minister Marco Mendicino announced on January 8, 2021 that international students who had post-graduate work permits that have recently expired or are soon to expire would be given the opportunity to receive an additional open work permit for an additional 18 months.

The new policy helps to mitigate the impacts of the COVID-19 pandemic on international graduates who have completed their studies and received post-graduation work permits but have been unable to complete the period of work experience necessary to allow them to achieve permanent residence status. 

Many international students have had their plans disrupted by the COVID-19 pandemic. With businesses shuttered and lay-offs being common, many holders of post-graduation work permits have been denied the opportunity to gain valuable Canadian work experience and as a result have found themselves without a viable pathway towards Canadian permanent resident status.

The new 18-month open work permit represents a critical second chance for many former international students who have graduated and obtained post-graduation work permits but have been unable to use those work permits to gain the experience necessary for a successful permanent residence application.

To understand the significance of this new policy, it’s helpful to know a little bit about the post-graduation work permits that are available to international students.

International students who have graduated from a Canadian post-secondary institution have a once-in-a-lifetime opportunity to apply for a post-graduation work permit provided that certain conditions are met. 

Since not all studies will result in post-graduation work permit eligibility, it is important for international students to carefully plan and manage their studies if their goal is to remain in Canada after graduation. In order to be eligible, international students must have completed a program of studies at an eligible designated learning institution in Canada – many private schools are excluded so it is important to check whether an institution’s graduates are eligible for post-graduation work permits before registering (Immigration maintains an online list of eligible institutions for this purpose), the program must be at least 8 months in duration and must lead to a degree, diploma or certificate, the applicant must have maintained full-time student status during each academic session of their program – with the possible exception of their final academic session, and the majority of their credits must not have been obtained via distance learning.

Post-graduation work permits must be applied for while the applicant is within 180 days of holding valid authorization to study in Canada and the validity period of the issued post-graduation work permit will depend on the length of the underlying course of studies.  If the length of the eligible program of study is a least 8 months and less than 2 years, the length of the post-graduation work permit will match the length of the program.  If the program of study is 2 years or longer, the length of the post-graduation work permit will be 3 years. No matter how many programs of study an individual completes in Canada, they can only receive one post-graduation work permit in their lifetime.

As with many other aspects of Canadian immigration law, the pandemic has resulted in the introduction of limited exceptions to some of the usual post-graduation work permit eligibility requirements; for example, there has been some targeted easing of the restrictions on distance learning.

The period that a former international student holds a post-graduation work permit is a crucial time that must be used strategically and with foresight. In most cases, the post-graduation work permit represents the international student’s best, and often only, opportunity to gain the Canadian work experience required by some of Canada’s permanent residence programs. 

For example, eligibility for permanent residence under the Canadian Experience Class requires one year of skilled Canadian work experience; similarly, skilled Canadian work experience is also an important factor in the calculation of the Comprehensive Ranking System (CRS) points which are used to determine an individual’s ranking under the competitive Express Entry System. 

In order to best use a post-graduation work permit to position themselves for permanent residence, it is important for individuals to recognize that not all types of work experience will be considered “Canadian work experience” for the purposes of Canadian Experience Class eligibility or the CRS points calculation – for the work experience to qualify for these purposes, it must be paid work, the work must be in a skilled position (an occupation listed in Skill Type 0, A, or B of the National Occupational Classification matrix), and it cannot have been self-employment, unauthorized work, or work that was gained while engaged in full-time study.

We are often consulted by individuals who are nearing the expiry of their post-graduation work permits and who are hoping to apply for permanent residence status.  It is sometimes discovered that the individual has unfortunately not made the best use of their post-graduate work permits and find themselves without enough qualifying work experience – usually because they were unable to find employment or because they have engaged in the wrong type of employment – rendering them unable to apply for permanent residence until more work experience can be accumulated. Since a post-graduation work permit is literally a once-in-a-lifetime opportunity, individuals are often left scrambling to try to obtain another type of work permit – a task which is often onerous and difficult.

Given the economic upheaval brought on by the pandemic, it is not surprising that many international students on post-graduate work permits have had their plans derailed and by no fault of their own have been unable to accumulate the work experience necessary for a permanent residence application.  In this context, it was sensible for the government to grant such individuals an avenue to obtain an additional open work permit and hopefully giving them a second opportunity to gain the work experience necessary to successfully apply for permanent residence. 

I welcome the new policy and think it will be a great help to many international students who have graduated from Canadian institutions. 

This new policy is part of a suite of creative solutions that the government has introduced during the pandemic to facilitate the immigration process for individuals currently inside Canada.

The need for these types of policies is driven by the fact that immigration to Canada and the entry of international students and foreign workers has been and will continue to be curtailed by the pandemic, and creative solutions are necessary to keep immigration levels up around the government’s target levels. 

The government has often tried to encourage international students to settle in Canada after the completion of their studies.  International students are seen as good candidates for immigration as they have received Canadian educations, typically have strong language skills, and have had the opportunity to integrate significantly into Canadian society. 

Recognizing that international students who have completed post-secondary studies in Canada are well positioned to make significant contributions to Canada, and recognizing that the pandemic has limited the number of international students who will be entering Canada in the near future, it was prudent for the government to introduce this new work permit option as it will allow many of the international students who are already here to get back on a pathway towards permanent residence.

Any individuals who have had post-graduation work permits that expired on or after January 30, 2020 or are expiring soon (expiring four months or less from the date of application), should consider applying for the18-month open work permit available under the new policy.  In order to be eligible, the applicant must still be in Canada and have valid temporary residence status or be eligible for and applying for a restoration of their status.  Applications under this new policy will be open from January 27, 2021 to July 27, 2021.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the January 2021 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

New Alberta pilot to reduce quarantine period via testing

Today, the Government of Alberta announced a new pilot that has the potential to significantly reduce the amount of time that travelers into Alberta must quarantine.

Currently, subject to some limited specific exceptions, anyone who enters Canada must legally quarantine for 14 days.

Starting on November 2, a new pilot program will provide travelers entering Alberta from outside Canada with the option of engaging in a new testing protocol.

The new pilot will initially only be available to individuals entering Alberta via Calgary International Airport and the Coutts Land Border Crossing (between Alberta and Montana).

Upon arriving at one of these locations, travelers will be given the option of receiving a COVID-19 test before entering quarantine.  The province is targeting a 48 hour turnaround for these tests to be processed.  Upon receiving a negative test result, the participating traveler would be allowed to leave quarantine as long as they commit to undergoing another test between days 6 and 7 after arrival.  Participating travelers will be required to provide daily symptom check-ins and follow some enhanced preventative health measures.  Should any symptoms arise participating travelers will be required to immediately isolate and contact Alberta Health. Participating travelers will also be required to remain in Alberta for 14 days after arrival.

The Government of Alberta hopes that the pilot program will be expanded to Edmonton International Airport by February 2021.

This new pilot will likely encourage more Albertans to engage in international travel, whether for business or pleasure, by reducing the length of time that they must quarantine before being able to return to their regular lives.

The new measures will not, however, make it easier for individuals to enter Canada. While Canadian citizens and permanent residents have the unrestricted right to re-enter Canada, there are still significant travel restrictions which dictate what types of individuals are permitted to temporarily enter Canada to work, study, or visit.

Feel free to contact a member of McCuaig Desrochers’ Immigration Practice Group should you have any questions about travel and immigration into Canada and the impacts of the COVID-19 pandemic.

Employment and Layoff Issues Related to COVID-19

The Employment Law Practice Group at McCuaig Desrochers LLP recognizes that many employers are currently being forced to make difficult staffing decisions, and likely have questions regarding the potential legal implications of those decisions. In this update, we outline a few of the options available to employers.

Please note that this document is intended to be an outline of information only, and is not legal advice. Every employment situation is unique and it is impossible to provide one-size-fits-all advice. If you have any questions or if you would like advice, we encourage you to contact any of our Edmonton Employment lawyers, who will be happy to answer questions related to the information set out below, or any other employment concerns you may have.

Temporary Layoffs

Employers may temporarily lay off an employee for lack of work due to COVID-19, but employers should be aware that even a temporary layoff can potentially result in a constructive dismissal or wrongful dismissal claim. This means that an employee could potentially make a claim that they have been dismissed (i.e. their employment terminated) and that they are entitled to severance pay. Whether it makes sense for an employee to take this position will vary from situation to situation. Moreover, given the extraordinary nature of the current pandemic, it is not clear how courts will treat constructive dismissal claims arising out of Coronavirus-related temporary layoffs.

Temporary layoffs are governed by the Employment Standards Code, which sets out specific requirements, including that a written layoff notice must be given to an employee within a certain amount of time before the layoff is set to begin. The amount of notice required depends upon the employee’s length of service and the urgency of the situation. The Employment Standards Code additionally sets out numerous specific requirements regarding the content of a temporary layoff notice.

Under ordinary circumstances, an employee is deemed to be terminated if he or she is laid off for more than 60 days within any 120 day period (for most employers, the layoff period involves consecutive days). However, as of Monday, April 6, 2020, the Government of Alberta has announced that it is increasing the maximum temporary layoff period from 60 days to 120 days, and that this change will retroactively apply to Coronavirus-related temporary layoffs that occurred on or after March 17, 2020. Furthermore, the Employment Standards Code allows employers and employees to extend the temporary layoff period ever longer, by agreement, provided that certain conditions are met.

Prior to the current pandemic, employees who were temporarily laid off were usually entitled to Employment Insurance (EI) benefits, which were capped at 55% of the employees’ wage up to a maximum of $573 per week. However, due to the COVID-19 pandemic, the Federal Government has instituted changes to the EI program as follows:

  • Applications for EI submitted after March 15, 2020 will be automatically processed through the Canada Emergency Response Benefit (“CERB”) program. Accordingly, employees laid off after March 15, 2020 will receive the CERB, which is a weekly benefit of $500 for up to 16 weeks.
  • If a laid off employee remains entitled to EI benefits after the expiry of the CERB, he or she may obtain regular EI benefits after the CERB expires.

One option available to employers in conjunction with temporary layoffs is to participate in the Supplementary Unemployment Benefit Plan (the SUB Plan), discussed below.
If temporary layoffs are not a usual practice for your business, or if your standard offer letters or employment contracts do not specifically contemplate temporary layoffs (most do not), we invite you to contact our Employment law group regarding potential litigation risks before temporarily laying off any employees.

Supplementary Unemployment Benefit Plan (“SUB Plans”)

A SUB Plan is essentially a plan that allows employers to “top up” employees’ EI benefits up to a maximum of 95% of the employees’ regular weekly earnings.

A SUB Plan must be registered with Service Canada, otherwise top up payments may be treated as income by Service Canada, which could impact the employees’ EI entitlements. The registration process is relatively simple and straightforward. Once an employer registers a SUB Plan (by email or fax) and the employees begin receiving EI, the top up payments can begin.
Note that there is no requirement to top up to the maximum of 95% – any amount of top up can be provided, so long as the total amount an employee receives (i.e. EI + top up) does not exceed 95% of what is normally paid.

The top up cannot be paid in a lump sum. It must be paid periodically (i.e. weekly or bi-weekly). These top up payments must also be reported by both the employer and employee.
If you have any questions about this program and how to register, we encourage you to contact one of our lawyers for more information and legal advice.

Employment Insurance Work Sharing Program

This option allows employees to collectively reduce their normal hours of work (and pay), and receive Employment Insurance (EI) benefits in addition to their salary/wages. The goal of the program is to avoid layoffs by providing income support to eligible employees who agree to work a temporarily reduced schedule while their employer recovers economically. The program contemplates that groups of workers who perform similar duties will have their hours equally reduced (at least 10% to a maximum of 60%).

Generally, the program provides an opportunity for employers to retain qualified and experienced workers while also allowing employees to retain their employment, maintain their work skills, and collect EI benefits for lost hours.

The Work Sharing Program is attractive to both employers and employees for self-evident reasons. The main challenge with the Work Sharing Program is that it requires employers to apply and be approved before implementation of the plan. Prior to the COVID-19 pandemic, the application processing period was 30 days. However, the Federal Government has recently announced that it is expediting Work Sharing Program applications and that it is attempting to process applications within approximately 10 days. This approximate 10 day period is a goal and not a guarantee.

Some of the other notable changes that have been made to this program to support employers and workers affected by COVID-19 are as follows:

  • extending maximum possible duration from 38 weeks up to 76 weeks
  • waiving the mandatory cooling off period if you have previously used the program
  • simplifying the application process
  • easing eligibility requirements

Our employment law lawyers can assist you in determining if you are an eligible employer, which of your employees are eligible for this program, what your obligations are within this program, and how to prepare and submit an application for a Work Sharing Agreement.

Temporary Wage/Salary Reductions

Some employers are putting temporary wage/salary reductions into effect. Pursuing this route can potentially result in constructive dismissal claims being advanced by affected employees. Whether it makes sense for an affected employee to assert a constructive dismissal will vary from situation to situation. If you are considering unilateral wage/salary rollbacks or reductions, we strongly recommend that you first obtain independent legal advice.

Contact Information

If you wish to consult with a lawyer from the McCuaig Desrochers LLP Employment Law Practice Group to best assess your situation, please refer here for our contact information:
https://www.mccuaig.com/practice-areas/employment-law-edmonton/

Agri-Food Immigration Pilot Program for Permanent Residence

Temporary foreign workers working in Canada’s Agri-Food Sector play an important role in maintaining the country’s food security. In recognizing that reality, the federal government has designed a pilot program for agricultural and agri-food workers to become permanent residents to Canada. The Government of Canada has indicated that this new pilot program is designed to:

  1. help address the labour needs of the Canadian agri-food sector; and
  2. attract experienced, non-seasonal workers who can settle in Canada permanently.

The opening of this pilot program has been delayed due to the COVID-19 pandemic and is now set to open May 15, 2020 and to run until May 2023.

While we expect to receive more details about the pilot program when it opens on May 15, 2020, we already know basic information regarding which industries and occupations will be able to benefit from this new program.

An individual who wishes to apply for Canadian permanent residence through the Agri-Food Immigration Pilot needs to be admissible to Canada and must meet the following criteria:

  1. have eligible Canadian work experience;
  2. have a qualifying job offer from a Canadian employer in one of the eligible industries and occupations for the pilot;
  3. meet the minimum language requirements (CLB/NCLC Level 4);
  4. meet the minimum educational requirements (Canadian school diploma or equivalent foreign credential); and
  5. have enough money to settle in Canada and to support your family (subject to certain exceptions).

Eligible Canadian work experience is at least one year of non-seasonal full-time (1,560 hours) work in the last three years in an eligible occupation for the pilot. Further, this eligible work experience must have been completed under the Temporary Foreign Worker Program – this means that your employer must have obtained a Labour Market Impact Assessment (LMIA) for a minimum of 12 months when they hired you for the position.

Eligible industries and eligible occupations for this Agri-Food Immigration Pilot are:

  1. Meat product manufacturing (NAICS 3116)
    • NOC B 6331 – Retail butchers
    • NOC C 9462 – Industrial butchers
    • NOC B 8252 – Farm supervisors and specialized livestock workers
    • NOC D 9617 – Food processing labourers
  2. Greenhouse, nursery and floriculture production, including mushroom production (NAICS 1114)
    • NOC B 8252 – Farm supervisors and specialized livestock workers
    • NOC C 8431 – General farm workers
    • NOC D 8611 – Harvesting labourers
  3. Animal production, excluding aquaculture (NAICS 1121, 1122, 1123, 1124 or 1129)
    • NOC B 8252 – Farm supervisors and specialized livestock workers
    • NOC C 8431 – General farm workers

The government has also announced that the applications will be processed on a first-come, first served basis, and there will be annual limits on the number of applications that are processed for each eligible occupation. These limits will be adjusted in 2020 and in 2023 based on the number of months the program remains open for those years.

The limits currently announced for each eligible occupation are:

Job offer to work as a Number of applications accepted per year
Farm supervisor or specialized livestock worker (NOC B 8252) 50
Industrial butcher (NOC C 9462) or retail butcher (NOC B 6331) 1470
Food processing labourers (NOC D 9617) 730
General farm worker (NOC C 8431) 200
Harvesting labourer (NOC D 8611) 300

While the details of the Agri-Food Pilot Program has not yet been released, the above information provides a snapshot as to who is expected to benefit from this program in the next three years. As the program has application caps, it is always important to apply early in the program year in order to increase your chances of having your application accepted.

If you are a temporary foreign worker that works in one of the above listed eligible occupations; Or an employer under one of the eligible occupations with Temporary foreign workers that may wish to apply for permanent residence, you may contact us to discuss further and determine admissibility and eligibility under this pilot.

Céline Bégin is a partner at McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers.

NOTICE RE CORONAVIRUS RESPONSE

To Our Valued Clients: The coronavirus (COVID-19) outbreak is a dynamic and ever-evolving situation. Please be assured that McCuaig Desrochers LLP is committed to serving our clients and keeping our employees safe during this challenging time. We have a responsibility to our staff, their families, our clients, and our community. In fulfilment of that responsibility, we have implemented numerous precautionary measures. Our office remains open for business. However, for the safety of our staff and clients alike, we are not permitting clients to attend at our premises. Virtually all of our business is being conducted via telephone, email, and videoconference. Lawyers who are not able to attend at the office are all equipped to serve you remotely, from their homes. Please be assured that we remain dedicated to serving our valued clients. You will continue to be able to reach our team via their normal office telephone numbers and email addresses. We will take all steps reasonably available to us to assist you with your legal needs. We are monitoring this rapidly evolving situation, and we will continue to refine our business continuity practices to ensure that we are doing our part while being responsive to your legal and business needs. Please feel free to contact us directly with any questions or concerns you may have. For the direct-line phone numbers and email addresses of our lawyers, please visit www.mccuaig.com and reference the individual lawyers’ profile pages. Sincerely, McCuaig Desrochers LLP

Canada’s Express Entry Economic Immigration System: CRS Points Thresholds Remain High in 2020

One of the ways that an immigrant to Canada may become a Canadian permanent resident is to apply through Immigration, Refugees and Citizenship Canada’s (IRCC’s) Express Entry program. Express Entry was developed specifically for skilled workers who wish to become permanent residents of Canada, and is an online application process. There are three separate economic immigration streams under Express Entry for which an applicant may qualify: the Canadian Experience Class (CEC), the Federal Skilled Worker Class (FSWC), or the Federal Skilled Trades Program (FSTP), all of which have their own requirements which must be met by the principal applicant.

Each stream has one factor in common: to qualify for any of the Express Entry streams, an applicant must have a type of skilled work experience. In the immigration context, skilled work is defined as work that falls under Canada’s National Occupation Classification (NOC) codes 0, A, or B. There are five NOC skill categories in total, which reflect the various occupations across Canada and the skill type or education level associated with each: 0 (Management jobs); A (Professional jobs); B (Technical jobs and skilled trades); C (Intermediate jobs); and D (Labour jobs). An individual who only had work experience under NOC codes C or D would not qualify for Express Entry.

As a basic work experience requirement to qualify for the Canadian Experience Class, an applicant would require at least one year of skilled work experience in Canada in the last three years, which could be a combination of full or part-time work. To qualify for the Federal Skilled Worker Class, an applicant would require at least one year of continuous skilled work within the past ten years in their primary occupation, either inside or outside Canada. Lastly, the Federal Skilled Trades Program requires at least two years of skilled work in certain eligible trades occupations within the last five years either inside or outside Canada, which could be a combination of full or part-time work. Each stream has English or French language skill requirements which must be tested and met, and each stream may have some additional eligibility criteria, such as a valid job offer or Canadian trade certification (for the Federal Skilled Trades Program) or the ability to be assessed 67 points on the 100-point FSWC point grid based on factors such as age, language ability, education, experience, Canadian adaptability (for the Federal Skilled Worker Class).

An interested applicant would find out if they meet the eligibility requirements, collect some necessary documents to provide evidence of that eligibility, such as qualifying language test results and Educational Credential Assessments, and would create and submit an Express Entry profile online. The Express Entry system is points-based and is a popular and competitive program, in which applicants who have submitted an Express Entry profile are ranked against one another in the “pool” to receive an Invitation to Apply for Permanent Residence.

The Express Entry profile is the key to being invited to apply for permanent residence via the Express Entry program, as it is through the answers provided in the profile that an applicant’s points are determined. The value of an applicant’s points is determined by the Comprehensive Ranking System (CRS), which assesses and assigns points to an applicant for various factors, which may include but are not limited to age, language ability, education, work experience (foreign or Canadian), or whether the applicant has a qualifying job offer, for example. When an applicant has a spouse (or a common-law partner) who would be included on the permanent residence application, the applicant’s points will also depend on their spouse’s information.

Once an applicant’s Express Entry profile has been submitted, they will be awarded a CRS points score and will sit within the “pool” of applicants. Throughout the year, invitation rounds will occur wherein IRCC sets criteria for that particular round, such as the number of invitations that will be issued, the stream(s) which are to be included, and the CRS point score cut-off for that round. Applicants with competitive CRS point scores for that invitation round may receive an Invitation to Apply for Permanent Residence, and will then have 60 days in which to complete and submit their online Application for Permanent Residence (eAPR). Their eAPR will then be assessed by IRCC to determine if that applicant should be granted Canadian permanent residence. In Alberta, there may also be a possibility of being selected out of the pool for Alberta’s Immigrant Nominee Program (AINP) based on that program’s own criteria.

Generally, there are two invitation rounds per month. While these invitation rounds usually invite individuals who qualify for any of the three underlying economic immigration streams, there are occasionally invitation round that only invite individuals who are eligible for a specific stream. Program specific rounds of invitation have usually been for the Federal Skilled Trades Program (individuals who are eligible only for the Federal Skilled Trades Program tend to receive fewer CRS points and as a result FSTP specific rounds of invitation will usually require far fewer CRS points to be eligible for invitation).

Below is a graph of the invitation rounds that occurred in 2019 and thus far in 2020 where all streams were invited (i.e. not counting the two Federal Skilled Trades Program specific draws that occurred in 2019):

CRS Point Requirements from January 2019 to February 19, 2020

Over the past three years, the points required to be invited have increased as the program becomes more and more competitive. The average number of points required to be competitive for invitation rounds (where all streams were invited) in 2019 was 460.7. In comparison, in 2018 that number was 443.4, and in 2017 it was 438.3. So far in 2020, we have seen the CRS points requirements remain fairly high.

If you are a skilled worker and are seeking to become a Canadian permanent resident, you may wish to consider applying to the Express Entry program, which may have shorter processing times than other types of permanent residence applications. However, we caution that Express Entry and the CRS points system can sometimes be more complicated than they seem on the surface. Interested applicants may wish to seek professional advice to ensure that they are presenting their information properly in order to receive all of the CRS points to which they are entitled and to discuss what actions they might take to try to increase their CRS scores.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion.

We invite you to contact one of the members of our experienced immigration group for assistance.

 

New Pilot Programs for Caregivers

On June 18, 2019, Immigration, Refugees and Citizenship Canada (IRCC) launched two new five-year pilot programs for eligible caregivers. The new programs are intended to make it easier for caregivers to change employers, bring their immediate families to Canada, and apply for permanent residence after obtaining two years of qualifying work experience in Canada.

The previous programs, Caring for Children and Caring for People with High Medical Needs, ended on June 18, 2019. If you have already applied under one of these programs before that date, your application will continue to be processed. If you did not apply under these programs before June 18, 2019, you may be eligible to apply under the new programs.

The new pilot programs are Home Child Care Provider and Home Support Worker. The Home Child Care Provider program is directed at applicants with qualifying work experience under NOC 4411 – home child care provider (experience as a foster parent is excluded). The Home Support Worker program is directed at applicants with qualifying work experience under NOC 4412 – home support worker (experience as a housekeeper is excluded).

These programs offer a pathway to permanent residence for eligible caregivers. Applicant caregivers must have two years of full-time qualifying work experience in Canada and meet other eligibility requirements, such as language level (a minimum CLB 5 in English or NLCL 5 in French in all four language skills), education (equivalent of a completed Canadian post-secondary credential of at least one year), and admissibility requirements related to security, criminality, and medical reasons.

Caregivers who do not yet have two years of work experience may also apply if they have a valid and genuine job offer for one of the eligible occupations. Successful applicants will be issued occupation-restricted work permits. This is a change from the previous programs, which provided employer-specific work permits. The new occupation-specific work permits will allow applicants to work for any employer, so long as the work falls into the listed occupation. This means that it will be easier for applicants to change employers, and employers will not have to apply for Labour Market Impact Assessments (LMIA). Observers have noted that this change will hopefully offer caregivers greater protection from abusive workplaces by allowing them to obtain new employment without waiting for the LMIA process. For some families that rely on caregiving support, however, this change may also make it more challenging to retain caregivers. 

Caregivers who have been issued work permits under one of these new programs can continue to work toward obtaining two years of full-time qualifying work experience. Once this work experience has been completed, applicants can submit proof of this to IRCC to have their permanent residence applications decided.

These programs are open to caregiver applicants who live inside and outside of Canada. If a caregiver has qualifying work experience in Canada under a different immigration program, they are still eligible to apply to these new programs for permanent residence.

Another welcome change under these new programs is the opportunity for caregivers’ families to accompany them to Canada. Caregivers are now able to apply for open work permits for their spouses or common-law partners and study permits for their dependent children.

The new programs each have an annual quota of 2,750 applicants, for a total of 5,500 applicants each year. Immediate family members are not included in these quotas. As the programs may fill up quickly, it will be especially important for caregivers currently working in Canada who need to extend their working status or who are currently eligible for permanent residence to apply as soon as possible.

In addition to these new pilot programs, the Interim Pathway for Caregivers program is also accepting applications from qualifying caregivers from July 8, 2019 to October 8, 2019. To qualify to apply for permanent residence under the Interim Pathway program, an applicant must have valid qualifying status in Canada, at least one year of full-time qualifying work experience in Canada as a home child care provider or home support worker, meet the required language skill levels, and have a Canadian high school diploma or a non-Canada educational credential that is equivalent to a Canadian high school diploma.

The Home Child Care Provider and Home Support Worker programs are positive steps toward recognizing the invaluable contribution caregivers make to our communities and the importance of keeping caregivers’ families together. However, it remains to be seen whether these new programs will provide caregivers with a more efficient and safer pathway to permanent residence.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the January 2021 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

Cannabis and Your Immigration Status – Risks for Non-Canadians

On October 17, 2018, recreational use of cannabis (marijuana) became legal in Canada. The Cannabis Act came into force then, and now governs usage, cultivation, possession and trafficking in cannabis.

It is very important to understand that only cannabis purchased or cultivated legally per the rules and restrictions found in the Act is considered legal. Any cannabis purchased outside of a properly regulated store (or online store), or grown at home without following the proper restrictions, is still considered “illicit” cannabis which is illegal. Having too much legal cannabis or growing too much cannabis is also an offence. Possessing this cannabis can cause serious problems for one’s immigration status if someone is not a citizen of Canada, especially for a worker, student or visitor. Edible cannabis products are still not legal in Canada right now and would be considered “illicit”.

Before legalization, simple possession of small amounts of cannabis was dealt with as a summary offence only under the Controlled Drugs and Substances Act. If a foreign national (worker, student or visitor) was charged with possession of a small amount of cannabis, they would generally not be considered “inadmissible” to Canada for “criminality” and they would not be subject to removal proceedings for this offence (unless there were two convictions not arising out of the same incident). This is because prior to legalization the offence was designated as a summary offence only (this does not apply to larger amounts over 30g). Since legalization, personal possession of cannabis (possession of legal cannabis over the limit or ilicit cannabis) is now classified as a hybrid offence, which puts foreign nationals at serious risk, as under immigration legislation, a hybrid offence is considered an “indictable” offence such that it can attract immigration consequences. Foreign nationals (workers, students or visitors) would likely be subject to removal from Canada for a conviction for possession under the Cannabis Act, and they would not have a right to appeal that removal. It is important to remember this legislation is not retroactive, meaning if someone was convicted before legalization, the previous legislation would apply to them.

In the United States, at the federal level all possession of cannabis is still considered “illicit”. This means that if a Canada Border Services Agency (“CBSA”) officer asks a person trying to enter Canada from the U.S.A. whether they possessed cannabis or purchased cannabis before, and the person answers “yes”, they could be considered to have “committed an offence outside of Canada that is an offence where it was committed and that, if committed in Canada, would constitute an indictable offence (possession of illicit cannabis)” (section 36(2)(c) of the Immigration and Refugee Protection Act). This applies even if someone has tried cannabis in a state where it was legalized (confusing, I know). This provision can also apply to similar admissions for things done in other countries. It is very important to never lie or mislead the government when these questions are asked, as CBSA has wide powers to search your belongings or electronic devices, or investigate further.

When it comes to the unauthorized distribution or sale of cannabis (less than 3kg), under the Cannabis Act, permanent residents (as well as foreign nationals) can now be found inadmissible and subject to removal from Canada, regardless of the actual sentence received. Prior to legalization, unauthorized distribution and unauthorized sale of cannabis (under 3 kg) would only have a maximum sentence of 5 years less a day, which would not make a permanent resident inadmissible unless they actually received more than 6 months in prison as a sentence. Now, the maximum sentence is 14 years and so permanent residents of Canada are at much higher risk (if an offence has a maximum sentence of 10 years or more, permanent residents can be subject to removal from Canada). Importing and exporting cannabis is also not permitted under the Cannabis Act and could result in removal for a foreign national or permanent resident.

Another aspect of the new Cannabis Act to understand are “ticketable offences”; offences that a police officer or peace officer could provide you a violation ticket for, similar to a driving offence. Under the Cannabis Act, officers are provided the discretion to write a ticket for many offences (rather than arresting and charging someone at the police station). Section 52 of the Cannabis Act says that the payment of a ticket is the same as a guilty plea to an offence, but a person would receive an “absolute discharge”, meaning for immigration purposes this would not be considered a conviction. However, if a person contests the ticket and loses, or fails to pay the ticket, then a conviction is entered against them. This conviction could then possibly lead to the process where CBSA finds a person to be inadmissible to Canada, and removal proceedings may begin. As this legislation is so new, we do not yet know exactly how these will be dealt with by immigration authorities, but it is something to be aware of and seek legal advice right away if you are ever given a ticket, before the deadline for payment.

A conviction resulting from failing to pay a ticket, or unsuccessfully contesting a ticket also means that on any future immigration-related applications to travel to Canada or other countries, or applications for an eTA (electronic travel authorization), a person must admit that they have a conviction for an offence on their record, otherwise they could be considered to have misrepresented to the government. A finding of misrepresentation can lead to removal from Canada, and a 5-year bar from the country.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the April 2019 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

Canada to improve tracking of departures

The Federal Government has announced plans to start collecting exit information for almost all individuals who travel out of Canada. 

It may come as a surprise to many that Canada does not currently know when most people leave the country.  While we collect information on individuals who legally enter Canada, we generally don’t track when people depart.  Our only form of exit tracking was implemented in 2013 when Canada began receiving entry records from American authorities for foreign nationals and permanent residents (but not Canadian citizens) who crossed the land border into the United States such that the entry into the United States could serve as confirmation that the individual had departed Canada.

Under the new plan, travelers will not have to take any additional steps when leaving the country as exit information will be gathered from the United States (in the event of a departure through the land border) or from air carriers.

The implementation of the improved exit system will occur in two phases, one to cover land travel and the other to cover individuals who depart Canada by air. 

First, the monitoring of individuals leaving Canada by land will be augmented by increasing the current exchange of information with the United States to include Canadian citizens who cross the Canada-USA land border.  This is expected to be implemented by the summer. 

Twelve months later, air carriers will be required to provide the government with electronic passenger manifest information prior to the departure of all outbound international flights. 

Once both of these additional pieces of exit data collection are implemented, Canada will be gathering information on the departure of approximately 97% of all outbound travelers (only missing exit information for the limited number of individuals who depart Canada by rail or via marine modes of transportation).

The effects of this exit data collection will be far reaching.  The government’s ability to access a much more complete set of exit information is intended to improve national security, better monitor compliance of Canada’s immigration laws, and protect the integrity of federally administered social benefit programs.

The government has noted that collecting this exit information for all individuals who leave Canada will reduce national and public safety risks by allowing authorities to identify and respond to the travel of high-risk individuals (e.g. known terrorists, human smugglers, child abductors etc.) and to better detect controlled or prohibited goods departing Canada on board outbound commercial international flights.

The exit information will also be used by both Employment and Social Development Canada and the Canada Revenue Agency.  ESDC will be able to use the exit information to identify people who are outside of Canada and who are no longer eligible to receive benefits under Canada’s Employment Insurance and Old Age Security Programs (an estimated savings of $206.11 million over 10 years).  Similarly, the CRA will be able to use the exit information to ensure compliance with eligibility requirements for family and child tax credits and other benefits (an estimated savings of $151.06 million over 10 years).

Improved integrity of Canada’s immigration and customs systems will be one of the key benefits of improved exit information.  As the government will now have information on who is inside and outside of Canada and how long returning individuals have been outside of the country, it will be able to confirm applicable duties and taxes for returning residents, identify temporary residents who attempt to remain in Canada beyond their authorized stay, focus immigration enforcement investigations on persons still in Canada, determine whether family-class sponsors are residing in Canada, and verify whether permanent residents or applicants for citizenship have met their residency requirements.

Whenever the government proposes to increase the collection of personal information, the impact on privacy is always an important consideration.  The government has committed to conducting ongoing audits and evaluations to ensure that it is accountable for how the personal information is used and have also determined that collected information will be retained for no more than 15 years unless otherwise required by law.

Once fully implemented, the collection of exit data has the potential to significantly improve the ability of Canadian immigration authorities to detect and quickly respond to individuals who stay in Canada beyond the period authorized.  It remains to be seen how exactly the tracking of exit data will affect how immigration authorities operate.  It is clear, however, that it will be as important as ever for individuals to ensure that they remain in careful compliance with the conditions of their stays in Canada. 

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.