Elimination of “4 year cap” for Temporary Foreign Workers

The government has just announced that they have eliminated, effective immediately, the four year cumulative duration rule.  The rule, introduced by the previous Conservative government, set a four year maximum on the time that most temporary foreign workers could work in Canada. Under the cumulative duration rule, after working in Canada for four years, temporary foreign workers needed to stop working in Canada for another four years before once again being eligible for a Canadian work permit.

The government’s move to eliminate the four year cumulative duration rule was made “in order to prevent unnecessary hardship and instability for both workers and employer”.

This change will affect the strategies that many employers use to retain employees that have been on work permits for a significant period of time, and relieves one of the significant pressures faced by valuable long-time temporary foreign workers.

The full government backgrounder can be found here: http://news.gc.ca/web/article-en.do?nid=1168949&tp=1

Please contact one of our Edmonton Immigration Lawyers to discuss how this change may affect you or your workforce.

Economic and Family Immigration to Increase in 2017 – Overall Immigration Numbers to Remain Steady

The Liberal government recently released its annual Immigration Levels Plan for next year.  Released around the beginning of each year, the Immigration Levels Plan provides admissions targets for each of the various pathways that are available for people to become Canadian permanent residents.

For 2017, the Liberal government has ultimately decided to implement relatively modest increases in Canada’s immigration levels.

Targeting 300,000 new immigrants, the Liberal government chose not to dramatically boost next year’s immigration numbers, instead deciding to keep the anticipated number of new immigrants for next year at the same level as the number of immigrants that they are projecting to accept this year.

This past year’s immigration numbers, however, included Canada’s admirable initiative to welcome upwards of 25,000 refugees fleeing the humanitarian crisis in the Middle East, and there will therefore be a substantial decrease in the number of refugees resettled in Canada as permanent residents in 2017.  As a result, although the total number of immigrants targeted will not increase dramatically, the 2017 Levels Plan does suggest that there will be a not insignificant boost in the number of immigrants welcomed through our Economic and Family Reunification immigration streams.

For example, the Economic Immigration stream, which includes the Canadian Experience Class, the Federal Skilled Worker Program, the Federal Skilled Trades Program and the Provincial Nominee Program, will see an overall increase of 7% over the 2016 levels.

An increase in the number of immigrants welcomed under the Federal Skilled Worker, Canadian Experience Class and Federal Skilled Trades programs is particularly interesting as it will have an important effect on the type of applicants who will be successful in the competitive points based Express Entry system.

We will likely see the threshold mark required for receiving an Invitation to Apply through Express Entry begin to drop as the government looks to meet its increased economic immigration targets by increasing the number of individuals that are selected during each round of invitation.  In fact, we may have already begun witnessing the early effects of next year’s higher targets as the most recent round of invitation which took place on November 2, 2016 was the largest in the history of the Express Entry Program, inviting more than 2,000 individuals to apply for permanent residence for the first time.

In addition to its higher targets for economic immigration programs, the government has also made a 5% boost to the number of immigrants it intends to welcome under Family Sponsorship programs.

By sticking to more moderate increases in economic and family class immigration, it appears that the immigration department will continue to focus on improving processing times and will continue building upon the efficiency gains that it has made in the past year unburdened by a need to also significantly ramp up the number of applications that it processes to completion.

While Immigration Minister John McCallum acknowledged his belief that “more immigrants for Canada would be good policy”, the overall targets announced last week fell short of what many were expecting after the government’s Advisory Council on Economic Growth recommended that Canada increase its annual economic immigration targets by 150,000 over the next 5 years through a gradual ramp up of total immigration levels which would have called forth an immigration target of 315,000 for 2017.

While the total number of new immigrants won’t see a substantial boost next year, it seems that by focusing on processing efficiencies, the foundation is being laid for more immigrants to come to Canada in the coming years. An increase in economic immigration and the skilled, educated working age individuals that it will bring to Canada will certainly be an economic benefit to our otherwise aging population.

In their report, the Advisory Council and Economic Growth wrote that increasing annual economic targets by 150,000 over the next 5 years would add 0.3 percentage points to population growth in Canada, bringing annual population growth to 1.2% which would only be considerate moderate growth when compared with immigration and policy trends in other advanced economies.

In particular, the Advisory Council saw an increase in economic immigration targets as a way of offsetting the economic reality of Canada’s aging population and reducing the ratio of seniors to working-aged Canadians thereby reducing fiscal strains on the system and the need for tax increases or benefit cuts.

The Council recommended that the increased number of economic immigrants come primarily from two groups: workers that are specialized and/or fill Canadian talent shortages, and international students educated in Canada.

It is clear that the government sees Canadian international students as a great underutilized resource and there were dramatic changes to the Express Entry system that were just announced on November 10, 2016 that will likely make it much easier for international students to receive Invitations to Apply for Canadian permanent resident status.

McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers.  This article first appeared in the November 2016 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.

An introduction to Labour Market Impact Assessments (LMIA)

An Introduction to Labour Market Impact Assessments

The Labour Market Impact Assessment or LMIA is currently one of the most crucial aspects of Canadian Immigration Law. As we will discuss, it is particularly important for those seeking to employ foreign workers and for certain individuals who are looking to independently apply for permanent resident status.

An LMIA is the Government of Canada’s way of determining whether or not there is a need for a foreign worker and what effect the hiring of a foreign worker would have on the Canadian job market. For a positive LMIA to be issued, Service Canada (the government department responsible for the LMIA program), must be satisfied that the hiring of a foreign worker would have a neutral or positive effect on the Canadian job market.  The issuance of a positive LMIA by Service Canada confirms that an employer has a need for a foreign worker and that there wasn’t a Canadian worker with the necessary experience or qualifications who was willing or able to take the job.

LMIA’s currently serve two important purposes. Firstly, an employer must typically obtain a positive LMIA before their temporary foreign workers will be eligible for a work-permit (subject to certain LMIA-exempt work permit categories) – this is the traditional purpose for an LMIA that has existed since their introduction.

The second purpose of an LMIA, which has recently become more prominent with the launch of the Express Entry system, is to allow an employer to provide a permanent job offer to eligible skilled foreign nationals in order to support their applications for permanent residence.

Launched at the beginning of 2015, the Express Entry system is an application control mechanism which governs who will be permitted to apply for permanent residence under several of Canada’s economic immigration streams. Under the Express Entry system, each individual is ranked according to an automatically assessed a point score according to a published points criteria (points are awarded based on several factors such as age, work experience, education and language ability) and only the highest ranked individuals are periodically invited to apply for permanent residence.

LMIAs are extremely important under the current Express Entry system. Under the current incarnation of the Express Entry points criteria, having an LMIA based job offer results in an individual being awarded so many additional points that they can essentially guarantee that they will receive an Invitation to Apply – even if they otherwise score very poorly on the other criteria.

The policymakers at Immigration, Refugees and Citizenship have signaled that they are considering reducing the weight that the Express Entry system places on LMIA backed job offers so that they no longer guarantee an Invitation to Apply (though still significantly increasing the chance of being invited). I agree that some change to the current system may be necessary. The current Express Entry system tends to overemphasize the possession of an LMIA sometimes allowing less qualified individuals to rank higher than more qualified individuals with much more experience and education. The Government is currently engaging in consultations to determine what changes should be made to the Express Entry system.

The stakes for obtaining a positive LMIA can often be extremely high. An employer’s ability to obtain a positive LMIA is often the difference between a foreign national being able to continue working in Canada or needing to go home, it can also be the difference between a foreign national being invited to apply for permanent residence or not having any pathway towards becoming a Canadian permanent resident.

Obtaining a positive LMIA is a complex and very technical process which can be daunting for many employers. For example, prior to making an LMIA application employers are generally required to first advertise the position in a very specific manner for a period of 28 days.  These very specific recruitment requirements exist so that Service Canada can be satisfied that the position was adequately made available to potential Canadian workers. Failure to precisely comply with the minimum recruitment requirements is a common issue resulting in the refusal of LMIA applications by Service Canada.

Employers must also note that the application requirements can also differ quite significantly depending on whether the position is considered a “high-wage” or a “low-wage” position, a distinction which depends on whether the position’s offered wage is above or below the median provincial wage (Service Canada currently uses $25.38/hr as Alberta’s median provincial wage). Applications for high-wage positions require the filing of a “Transition Plan” which outlines the steps that the employer is committing to take to reduce their reliance on temporary foreign workers. Applications for low-wage positions, on the other hand, may be subject to a cap which restricts the proportion of an employer’s workforce which can be made up of low-wage temporary foreign workers.

Furthermore, employers must be aware of the importance of complying with the working conditions and terms of employment set out in the LMIA approval. Inspections and compliance reviews can be used by Service Canada to monitor employer compliance and it is therefore imperative that employers carefully maintain the records necessary to prove their compliance. Depending on the severity of the breach and the employer’s compliance history, a failure to follow the terms of the LMIA can result in a whole host of penalties, including significant monetary penalties or a ban from being able to obtain future LMIAs. Common compliance problems include non-payment of overtime, insufficient wages or hours, or the employment of a temporary foreign worker in an unauthorized location or in an unauthorized occupation.

If attempting to apply for an LMIA, it is important to try to be aware of the many requirements and complexities of the application process and the subsequent compliance regime. The assistance of an experienced immigration lawyer can be valuable in helping to navigate this complicated yet often crucial process.

McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com).  This article first appeared in the August 2016 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.

Express Entry: The First 12 Months

Canada’s Express Entry system recently celebrated its first birthday.  First introduced on January 1, 2015, individuals and their representatives have since been navigating this major departure in the way that the Government of Canada processes permanent resident applications under Canada’s economic immigration programs.

Express Entry is an online application management system that now governs the intake of applications for Canada’s economic immigration programs; these programs include the Federal Skilled Worker Program, the Federal Skilled Trades Program, the Canadian Experience Class and portions of the Provincial Nominee Programs of certain provinces.

Prior to Express Entry, any individual who met the eligibility requirements of one of these programs could submit their permanent residence application and know that their application would be placed in the queue and would eventually be processed.  This has changed significantly under the new Express Entry program.  Under Express Entry, it is no longer enough to be eligible to make an application for permanent residence, only those who are invited to apply through Express Entry will be able to submit a permanent residence application.  Express Entry has effectively allowed the Government of Canada to limit the number of applications that it is obligated to consider and process thus eliminating backlogs and improving processing times.

Express Entry is a two step process.  The first step requires the potential candidate to submit an online Express Entry profile in which they will declare information like their age, education, language abilities, Canadian and foreign work experience, education and certain other personal characteristics.  The online system will assess the candidate’s profile and automatically assign it a certain number of points according to a ranking system called the Comprehensive Ranking System (CRS).  Under the CRS, candidates will receive up to 600 points for human capital factors (e.g. age, work experience, education, language ability etc.) and an additional 600 points for having either a Canadian job offer supported by a Labour Market Impact Assessment from Service Canada or a provincial/territorial nomination from a participating province or territory – currently, a certificate of nomination from the Alberta Immigrant Nominee Program cannot be used for Express Entry.

In the second step of Express Entry, all candidates who meet the criteria of one of the federal immigration programs will be accepted into the Express Entry pool and will be ranked against others in the pool according to their CRS score.  The Government of Canada will then periodically invite a certain number of the top ranked candidates to apply for permanent residence.  The number of invitations issued and the minimum number of CRS points required to receive an invitation will vary from draw to draw.  Once invited to apply, candidates have only 60 days to submit an electronic application for permanent residence along with all of the required supporting documentation.  Profiles remain in the pool for up to 12 months at which time uninvited candidates will need to submit new profiles.

Looking back at 2015, there were 23 rounds of invitation and approximately 31,000 Invitations to Apply were issued.  After the program’s first four rounds of invitation, the minimum CRS scores required for invitation dipped sharply such that after February 2015 all but one of the remaining 19 rounds of invitation had minimum CRS scores under 600 (the minimum CRS scores for these rounds ranged from 450 to 489 points) – this indicates that there were individuals who did not have Canadian job offers supported by Labour Market Impact Assessments (or applicable provincial nominations) who were still able to receive invitations to apply.  The rounds of invitation in 2015 also made clear that having a qualifying Canadian job offer essentially ensured that a candidate would be issued an Invitation to Apply right away.

Readers should note that even after overcoming the first hurdle and receiving an Invitation to Apply, it can be difficult to comply with the stringent documentary requirements and short timelines of the electronic permanent residence application.  Upon creating an Express Entry profile or even prior to the creation of a profile, candidates should consider what documentation will be required for their permanent residence applications as once an Invitation to Apply is received there will only be 60 days to provide the required documentation and the timelines are largely strictly enforced.

Looking forward, representatives of the Government of Canada have suggested that they expect the number of invitations issued per round to increase and that the minimum score of those that are invited will likely drop over time.

There is also the potential that the CRS may be amended to benefit candidates with Canadian family members.  In his mandate letter to new Minister of Immigration, John McCallum, Prime Minister Justin Trudeau asked that the department make it a priority to find a way to give additional points under the Express Entry system to provide “more opportunities for applicants who have Canadian siblings”.

To the extent that CRS scores may continue to decrease or that the CRS may be modified in the future, individuals may want to consider creating Express Entry profiles so that they might become eligible to receive Invitations to Apply and individuals who currently have profiles in the pool should ensure that they create new profiles upon the expiry of their current profiles.

Having an Express Entry profile in the pool is an important way for individuals to pursue Canadian permanent resident status in 2016.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers.  This article first appeared in the January 2016 edition of the Millwoods Mosaic – The Multicultural Voice of Edmonton Southeast and is intended to provide general information only and should not to be relied on as legal advice or opinion.

117(9)(d) Failure to Disclose Family Members Results in Future Exclusion from the Family Class

Paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations — it’s one of the most heartbreaking rules in Canadian immigration legislation.  The rule states that a person is no longer considered to be a member of the family class, and therefore can no longer be sponsored for permanent residence, if he was not examined by a visa officer when his sponsor immigrated to Canada.

Although they can result in the permanent separation of family members, 117(9)(d) exclusions are not uncommon and arise in fairly unspectacular circumstances.  The general fact pattern is that an individual applies for permanent residence and fails to disclose the existence of a spouse, common-law partner or child to Citizenship and Immigration Canada (CIC).

A fairly common situation that our office sees is where an individual has an existing permanent residence application that is in its final stages of processing. Prior to receiving his Canadian permanent resident status, the individual gets married but fails to notify CIC that he now has a spouse.  Perhaps choosing not to notify Immigration because he has the fear (often unfounded) that it will cause problems or delays for his application, he decides to finalize his own permanent residence application without mentioning his recent marriage and thinks that he will deal with his spouse’s immigration status once his own status is secured.  Little does the individual in our example know that by failing to disclose his spouse in his own permanent residence application he has forever disqualified his spouse from being someone that he can sponsor as a family member.

One of the main reasons that regulation 117(9)(d) exists is to prevent applicants from hiding inadmissible family members (e.g. family members who have criminality or medical issues) who would have prevented the applicant’s initial immigration to Canada and then later sponsoring the inadmissible family members under the more lenient family class sponsorship rules.

While its intended function is an important one, regulation 117(9)(d) often results in heartbreaking situations as it operates without any regard for the reason an individual might have for not disclosing a spouse, common-law partner or child.  So long as the non-disclosure prevents CIC from examining the family member, it does not matter if the non-disclosure was completely inadvertent or that the individual gained no advantage by it.

For example, regulation 117(9)(d) has even been applied where an individual did not disclose his wife and children on his application because they had become separated in a time of violence and he thought that they had been killed by rebel fighters.  As his family members had not been disclosed or examined on his application, they were excluded from the family class and he was unable to sponsor them after he discovered that they were still alive.

So what are you to do if you want to be reunited with your family members despite failing to disclose them on your permanent residents application?  The only recourse is to make a Humanitarian and Compassionate Application carefully explaining the circumstances of your case and the reasons for the non-disclosure.  A visa officer will then use his or her discretion in deciding whether your case warrants an exemption from the strict application of Regulation 117(9)(d).  These types of applications can be quite technical as they must carefully address the legal issues at hand and must contain sufficient documentation to persuade the officer that an exemption is warranted.  Furthermore, sponsors may want to consult with legal counsel to evaluate the risk that they could potentially open themselves up to misrepresentation proceedings for the previous non-disclosure of their family members.

McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com).  This article first appeared in the July 2015 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.



Update of Parent-Grandparent Sponsorship Program

It was May 2013 and I was getting set to give a presentation at the Canadian Bar Association’s National Immigration Conference in Montreal.  Along with representatives from Citizenship and Immigration Canada, I was scheduled to speak to immigration lawyers from across the country on the topic of “family class immigration”.

At the time, immigration lawyers were anticipating that the government would soon be announcing changes to family class immigration, particularly when it came to the sponsorship of parents and grandparents.

The morning of my presentation, one of my co-panelists from the government confirmed that Jason Kenney, then the Minister of Immigration, would be announcing his long awaited changes to the parent & grandparent program at the precise time that I was trying to give a presentation on the same topic. Not knowing what Minister Kenney would announce until after I spoke, I started my presentation by joking that it would be the first time in the conference’s long history that a presentation would be rendered out of date literally while it was being given.

As it turned out, the changes announced that day represented a substantial shift in the government’s approach towards allowing Canadian citizens and permanent residents to be reunited with their parents or grandparents in Canada.

One of the main changes that were made to Canada’s longstanding parent & grandparent program was a 30% increase in the minimum amount of income that must be demonstrated before someone is able to sponsor his or her parents’ or grandparents’ immigration to Canada and a new requirement that the minimum necessary income that a sponsor must show now needed to be shown for the previous three years rather than just the previous year.

For example, for an application submitted in January 2015, a married couple with one child would need to have reported to the Canada Revenue Agency a family income of $63,833 in 2013, $62,023 in 2012 and $60,905 in 2011 before being eligible to sponsor one set of parents. The increase in the income requirements has had the practical effect of putting parental sponsorship financially out of reach for a large segment of the population.

Of the changes announced in May 2013, the most significant was the introduction of a cap on the number of parent/grandparent applications that the Federal Government would accept each year.  As a result of the change, only 5,000 applications are now being accepted each year. Once 5,000 complete applications had been received, all further applications are returned and the category is closed until the following year.

As the number of Canadian citizens and permanent residents who wish to sponsor their parents’ immigration far exceeds the number of applications that the government is willing to accept each year, the 5,000 application limit has proven to be a significant barrier to start the sponsorship process.  This was recently illustrated in how the category almost instantaneously reached full capacity when it opened for business at the beginning of 2015.

In 2015, the parent/grandparent program reopened on January 2 at 8:00 a.m. EST.  On January 16, only two weeks after it opened the program, Citizenship and Immigration Canada (CIC) announced that it had already received 5,000 new complete applications and that any further applications would be returned.

Many Canadian citizens and permanent residents who had hoped to start the process of bringing their parents to Canada will now have to wait until 2016 and hope, again, that theirs will be one of the first 5,000 applications received.

For those hoping to be among the lucky few who have their applications accepted in 2016, they would be well advised to ensure that have compiled all of the necessary documentation and completed the required paperwork in time to ensure that their application is received by CIC immediately upon the program reopening in 2016.

Nathan A. Po

McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com).  This article first appeared in the February 2015 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.