As I previously reported, on June 28, 2016, Prime Minister Justin Trudeau formally announced that the Temporary Resident Visa (“TRV”) requirement for citizens of Mexico travelling to Canada would be eliminated as of December 1, 2016.  Mexican citizens may now enter Canada without first obtaining a TRV from a Canadian embassy or consulate.

This new visa exemption reverses the Government of Canada’s prior decision to impose TRV requirements on Mexican citizens, which became effective on July 14, 2009.  At the time, Citizenship and Immigration Canada (now known as Immigration, Refugees, and Citizenship Canada) indicated that Mexican refugee cases had almost tripled since 2005, making it the number one source country for refugee claims. In 2008, more than 9,400 claims filed in Canada came from Mexican nationals, representing 25% of all claims received.  Of the Mexican claims reviewed and finalized in 2008 by the Immigration and Refugee Board, an independent administrative tribunal, only 11% were accepted.

Some critics have alleged that Canada will experience a significant increase in Mexican refugee claims now that the TRV requirement has been lifted.  Although some increase in such claims is likely to occur, it may not be as significant as they believe.  This is because Mexican citizens (in fact, all foreign nationals except United States citizens) who wish to enter Canada as temporary residents must now obtain an Electronic Travel Authorization (“eTA”) prior to travelling to Canada by air; this requirement has been in effect since November 9, 2016.

Foreign nationals who apply for an eTA online are required to answer many of the same questions that would be asked in a TRV application; this is intended to prevent high risk applicants from entering Canada without a visa.  For example, foreign nationals who have insufficient ties to their home country, who have violated their status in Canada (or any other country), or who have criminal records are unlikely to receive an eTA.  Foreign nationals who cannot obtain an eTA will not be allowed to board their flight to Canada.

Although the eTA requirement applies only to travel by air, it is generally not possible to make a refugee claim at a land port of entry.  This is because, according to the Canada-U.S. Safe Third Country Agreement, which became effective on December 29, 2004, most refugee claimants are required to request refugee protection in the first safe country in which they arrive.  Therefore, a Mexican citizen who initially enters the United States will not be permitted to make a Canadian refugee claim at the Canada-U.S. border.

Hopefully, the new visa exemption for citizens of Mexico will facilitate legitimate travel to Canada without causing a significant increase in frivolous refugee claims.  However, due to both the eTA requirement and the Canada-U.S. Safe Third Country Agreement, it appears likely that this will occur.

Since Express Entry began on January 1, 2015, Immigration, Refugees and Citizenship Canada (“IRCC”), formerly known as Citizenship and Immigration Canada, has issued several rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants are selected to receive an ITA based on how many points they are assigned under the Comprehensive Ranking System (“CRS”).

As of the date of this article, CIC has issued a total of 44 rounds of ITAs.  A summary of these Express Entry rounds appears below:

• In Round #1 (January 31, 2015), IRCC issued 779 ITAs.  Applicants in this round were required to receive at least 886 CRS points.
• In Round #2 (February 7, 2015), IRCC issued 779 ITAs.  Applicants in this round were required to receive at least 818 CRS points.
• In Round #3 (February 20, 2015), IRCC issued 849 ITAs.  Applicants in this round were required to receive at least 808 CRS points.
• In Round #4 (February 27, 2015), IRCC issued 1187 ITAs.  Applicants in this round were required to receive at least 735 CRS points.
• In Round #5 (March 20, 2015), IRCC issued 1620 ITAs.  Applicants in this round were required to receive at least 481 CRS points.
• In Round #6 (March 27, 2015), IRCC issued 1637 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #7 (April 10, 2015), IRCC issued 925 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #8 (April 17, 2015), IRCC issued 715 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #9 (May 22, 2015), IRCC issued 1361 ITAs.  Applicants in this round were required to receive at least 755 CRS points.
• In Round #10 (June 12, 2015), IRCC issued 1501 ITAs.  Applicants in this round were required to receive at least 482 CRS points.
• In Round #11 (June 26, 2015), IRCC issued 1575 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #12 (July 10, 2015), IRCC issued 1516 ITAs.  Applicants in this round were required to receive at least 463 CRS points.
• In Round #13 (July 17, 2015), IRCC issued 1581 ITAs.  Applicants in this round were required to receive at least 451 CRS points.
• In Round #14 (August 7, 2015), IRCC issued 1402 ITAs.  Applicants in this round were required to receive at least 471 CRS points.
• In Round #15 (August 21, 2015), IRCC issued 1523 ITAs.  Applicants in this round were required to receive at least 456 CRS points.
• In Round #16 (September 8, 2015), IRCC issued 1517 ITAs.  Applicants in this round were required to receive at least 459 CRS points.
• In Round #17 (September 18, 2015), IRCC issued 1545 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #18 (October 2, 2015), IRCC issued 1530 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #19 (October 23, 2015), IRCC issued 1502 ITAs.  Applicants in this round were required to receive at least 489 CRS points.
• In Round #20 (November 13, 2015), IRCC issued 1506 ITAs.  Applicants in this round were required to receive at least 484 CRS points.
• In Round #21 (November 27, 2015), IRCC issued 1559 ITAs.  Applicants in this round were required to receive at least 472 CRS points.
• In Round #22 (December 4, 2015), IRCC issued 1451 ITAs.  Applicants in this round were required to receive at least 461 CRS points.
• In Round #23 (December 18, 2015), IRCC issued 1503 ITAs.  Applicants in this round were required to receive at least 460 CRS points.
• In Round #24 (January 6, 2016), IRCC issued 1463 ITAs.  Applicants in this round were required to receive at least 461 CRS points.
• In Round #25 (January 13, 2016), IRCC issued 1518 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #26 (January 27, 2016), IRCC issued 1468 ITAs.  Applicants in this round were required to receive at least 457 CRS points.
• In Round #27 (February 10, 2016), IRCC issued 1505 ITAs.  Applicants in this round were required to receive at least 459 CRS points.
• In Round #28 (February 24, 2016), IRCC issued 1484 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #29 (March 9, 2016), IRCC issued 1013 ITAs.  Applicants in this round were required to receive at least 473 CRS points.
• In Round #30 (March 23, 2016), IRCC issued 1014 ITAs.  Applicants in this round were required to receive at least 470 CRS points.
• In Round #31 (April 6, 2016), IRCC issued 954 ITAs.  Applicants in this round were required to receive at least 470 CRS points.
• In Round #32 (April 20, 2016), IRCC issued 1018 ITAs.  Applicants in this round were required to receive at least 468 CRS points.
• In Round #33 (May 6, 2016), IRCC issued 799 ITAs.  Applicants in this round were required to receive at least 534 CRS points.
• In Round #34 (May 18, 2016), IRCC issued 763 ITAs.  Applicants in this round were required to receive at least 484 CRS points.
• In Round #35 (June 1, 2016), IRCC issued 762 ITAs.  Applicants in this round were required to receive at least 483 CRS points.
• In Round #36 (June 15, 2016), IRCC issued 752 ITAs.  Applicants in this round were required to receive at least 488 CRS points.
• In Round #37 (June 29, 2016), IRCC issued 773 ITAs.  Applicants in this round were required to receive at least 482 CRS points.
• In Round #38 (July 13, 2016), IRCC issued 747 ITAs.  Applicants in this round were required to receive at least 482 CRS points.
• In Round #39 (July 27, 2016), IRCC issued 755 ITAs.  Applicants in this round were required to receive at least 488 CRS points.
• In Round #40 (August 10, 2016), IRCC issued 754 ITAs.  Applicants in this round were required to receive at least 490 CRS points.
• In Round #41 (August 24, 2016), IRCC issued 750 ITAs.  Applicants in this round were required to receive at least 538 CRS points.
• In Round #42 (September 7, 2016), IRCC issued 1,000 ITAs.  Applicants in this round were required to receive at least 491 CRS points.
• In Round #43 (September 21, 2016), IRCC issued 1,288 ITAs.  Applicants in this round were required to receive at least 483 CRS points.
• In Round #44 (October 12, 2016), IRCC issued 1,518 ITAs.  Applicants in this round were required to receive at least 484 CRS points.

The lowest minimum CRS score that was previously eligible to receive an ITA was 450 points, which occurred in rounds 17 and 18.  However, the minimum CRS score subsequently rose to over 480 points in rounds 19 and 20.

This was still a low enough score for a candidate to be selected without a Labour Market Impact Assessment or a nomination under a provincial nominee program Express Entry stream.  However, many applicants were hoping that the minimum CRS score would continue to drop before the end of 2015; this clearly did not occur.

Fortunately, the minimum CRS score has dropped several times during 2016, to levels approaching rounds 19 and 20.  In rounds 25 and 28, the minimum CRS score dropped to as low as 453 points.  That said, the minimum CRS score also rose to as high as 538 points in round 41.  In the most recent round on October 12, 2016, the minimum CRS score was 484 points.

On June 28, 2016, Prime Minister Justin Trudeau formally announced that the Temporary Resident Visa (“TRV”) requirement for citizens of Mexico travelling to Canada will be eliminated as of December 1, 2016.  However, the existing TRV requirement will continue until November 30, 2016.  Mexican citizens who wish to travel to Canada before December 1, 2016, will still need to obtain a TRV from a Canadian consular post.

This announcement reverses Canada’s prior decision to impose TRV requirements on Mexican citizens, which became effective on July 14, 2009.  At the time, Citizenship and Immigration Canada (“CIC”) indicated that Mexican refugee cases had almost tripled since 2005, making it the number one source country for refugee claims. In 2008, more than 9,400 claims filed in Canada came from Mexican nationals, representing 25 per cent of all claims received. Of the Mexican claims reviewed and finalized in 2008 by the Immigration and Refugee Board, an independent administrative tribunal, only 11% were accepted.

Just prior to the Prime Minister’s announcement, the media reported that the Trudeau government was still prepared to re-impose the TRV requirement if the number of refugee claims from Mexico jumped above a certain level.  It also reported that CIC officials had opposed the move, warning that Mexico’s low standard of living, poor human-rights record, and high crime rates would drive Mexican citizens to seek refuge in Canada.  They also expressed concern that refugee claimants in other Latin American countries, wishing to gain entry to Canada, could take advantage of Mexico’s weak passport system without having to undergo Canada’s rigorous visa screening.

CIC officials apparently advised the Federal Cabinet that removing the TRV requirement for Mexico would result in 3,500 asylum claims in 2017, up to 6,000 the following year and 9,000 in 2019.  According to the media, the Federal Cabinet disregarded CIC’s recommendations but set specific conditions for Mexico to satisfy, including a partial re-imposition of the TRV requirement if refugee claimants from Mexico reach a threshold of 3,500 within any 12-month period.

Even after December 1, 2016, visa-exempt Mexican citizens will still be required to register under Canada’s Electronic Travel Authorization (“eTA”) Program.  The eTA requirement was supposed to become mandatory for almost all visa-exempt travellers on August 1, 2015.  However, CIC later announced a leniency period and indicated that the eTA requirement would not become mandatory until Fall 2016.  Of course, the eTA requirement should be in place by the time Mexican citizens become TRV-exempt on December 1, 2016.

Since Express Entry began on January 1, 2015, Citizenship and Immigration Canada (“CIC”) has issued several rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants are selected to receive an ITA based on how many points they are assigned under the Comprehensive Ranking System (“CRS”).

As of the date of this article, CIC has issued a total of 35 rounds of ITAs.  A summary of these Express Entry rounds appears below:

• In Round #1 (January 31, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 886 CRS points.
• In Round #2 (February 7, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 818 CRS points.
• In Round #3 (February 20, 2015), CIC issued 849 ITAs.  Applicants in this round were required to receive at least 808 CRS points.
• In Round #4 (February 27, 2015), CIC issued 1187 ITAs.  Applicants in this round were required to receive at least 735 CRS points.
• In Round #5 (March 20, 2015), CIC issued 1620 ITAs.  Applicants in this round were required to receive at least 481 CRS points.
• In Round #6 (March 27, 2015), CIC issued 1637 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #7 (April 10, 2015), CIC issued 925 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #8 (April 17, 2015), CIC issued 715 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #9 (May 22, 2015), CIC issued 1361 ITAs.  Applicants in this round were required to receive at least 755 CRS points.
• In Round #10 (June 12, 2015), CIC issued 1501 ITAs.  Applicants in this round were required to receive at least 482 CRS points.
• In Round #11 (June 26, 2015), CIC issued 1575 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #12 (July 10, 2015), CIC issued 1516 ITAs.  Applicants in this round were required to receive at least 463 CRS points.
• In Round #13 (July 17, 2015), CIC issued 1581 ITAs.  Applicants in this round were required to receive at least 451 CRS points.
• In Round #14 (August 7, 2015), CIC issued 1402 ITAs.  Applicants in this round were required to receive at least 471 CRS points.
• In Round #15 (August 21, 2015), CIC issued 1523 ITAs.  Applicants in this round were required to receive at least 456 CRS points.
• In Round #16 (September 8, 2015), CIC issued 1517 ITAs.  Applicants in this round were required to receive at least 459 CRS points.
• In Round #17 (September 18, 2015), CIC issued 1545 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #18 (October 2, 2015), CIC issued 1530 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #19 (October 23, 2015), CIC issued 1502 ITAs.  Applicants in this round were required to receive at least 489 CRS points.
• In Round #20 (November 13, 2015), CIC issued 1506 ITAs.  Applicants in this round were required to receive at least 484 CRS points.
• In Round #21 (November 27, 2015), CIC issued 1559 ITAs.  Applicants in this round were required to receive at least 472 CRS points.
• In Round #22 (December 4, 2015), CIC issued 1451 ITAs.  Applicants in this round were required to receive at least 461 CRS points.
• In Round #23 (December 18, 2015), CIC issued 1503 ITAs.  Applicants in this round were required to receive at least 460 CRS points.
• In Round #24 (January 6, 2016), CIC issued 1463 ITAs.  Applicants in this round were required to receive at least 461 CRS points.
• In Round #25 (January 13, 2016), CIC issued 1518 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #26 (January 27, 2016), CIC issued 1468 ITAs.  Applicants in this round were required to receive at least 457 CRS points.
• In Round #27 (February 10, 2016), CIC issued 1505 ITAs.  Applicants in this round were required to receive at least 459 CRS points.
• In Round #28 (February 24, 2016), CIC issued 1484 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #29 (March 9, 2016), CIC issued 1013 ITAs.  Applicants in this round were required to receive at least 473 CRS points.
• In Round #30 (March 23, 2016), CIC issued 1014 ITAs.  Applicants in this round were required to receive at least 470 CRS points.
• In Round #31 (April 6, 2016), CIC issued 954 ITAs.  Applicants in this round were required to receive at least 470 CRS points.
• In Round #32 (April 20, 2016), CIC issued 1018 ITAs.  Applicants in this round were required to receive at least 468 CRS points.
• In Round #33 (May 6, 2016), CIC issued 799 ITAs.  Applicants in this round were required to receive at least 534 CRS points.
• In Round #34 (May 18, 2016), CIC issued 763 ITAs.  Applicants in this round were required to receive at least 484 CRS points.
• In Round #35 (June 1, 2016), CIC issued 762 ITAs.  Applicants in this round were required to receive at least 483 CRS points

The lowest minimum CRS score that was previously eligible to receive an ITA was 450 points, which occurred in rounds 17 and 18.  However, the minimum CRS score subsequently rose to over 480 points in rounds 19 and 20.

This was still a low enough score for a candidate to be selected without a Labour Market Impact Assessment or a nomination under a provincial nominee program Express Entry stream.  However, many applicants were hoping that the minimum CRS score would continue to drop before the end of 2015; this clearly did not occur.

Fortunately, the minimum CRS score has dropped several times during 2016, to levels approaching rounds 19 and 20.  In rounds 25 and 28, the minimum CRS score dropped to as low as 453 points.  That said, the minimum CRS score also rose to as high as 534 points in round 33.  In the most recent round on June 1, 2016, the minimum CRS score was 483 points.

Introduction

On February  3, 2016, Citizenship and Immigration Canada (“CIC”) announced two new categories of work permits exempt from the Labour Market Impact Assessment (“LMIA”) requirement, pursuant to Section 205 of the Immigration and Refugee Protection Regulations:

• Exemption code C14 will apply to foreign nationals whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities for Canadians and permanent residents.
• Exemption code C23 will apply to foreign nationals working in dance (i.e. ballet, contemporary), opera, orchestra, and live theatre, whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations.

In other words, workers who are eligible under one of the above exemptions may obtain work permits without having to demonstrate the unavailability of Canadian workers, which is typically required as part of the LMIA process.

CIC has also revised its guidance relating to the business visitor category (under R186).  This guidance now clarifies that foreign nationals who are employed as film producers, essential personnel for commercial (i.e., advertising) shoots, and film and recording studio users may be considered under the business visitor category.

C14 Exemption

As of February 17, 2016, a foreign national in the TV and film industry, whose position or occupation is essential to a TV or film production, may now be eligible for an LMIA-exempt work permit pursuant to under R205(a).  Immigration Officers will issue work permits to TV and film production workers under exemption code C14, if they are satisfied that the work is essential to a TV or film production that will create and maintain significant economic benefits and opportunities for Canadians and permanent residents.

In general, this exemption will apply to high wage and unionized positions.  It will also apply to all TV and film productions in Canada, regardless of whether the production is foreign or Canadian and whether it is filmed entirely or in part in Canada.

As with all LMIA exempt categories, the employer must submit an Offer of Employment pursuant to R209.11, before a work permit application is submitted at a consular post (in the case of visa-required foreign nationals) or at time of entry (in the case of visa-exempt foreign nationals).

The following documentation should be provided in support of a C14 work permit application:

• A letter of support from the production, which should generally contain specifications such as:
  • The name and contact information for the production;
  • The working title of the production, the province(s) or territory(ies) in Canada in which the production will take place and the proposed dates of production;
  • The name of the work permit applicant for the production;
  • A statement confirming that the individual and position are essential to that specific TV or film production;
  • Details of the significant economic benefit to Canada of the TV or film production, which may include:
    • The estimated number of jobs for Canadians created by the production;
    • The estimated budgetary spend in Canada at the federal, provincial or territorial level;
    • A statement confirming that the TV or film production satisfies the criteria for federal, provincial or territorial tax credit for TV or film production, or is the recipient of federal, provincial or territorial funding for TV or film production;
  • The signature of a senior representative of the production; and
  • The date of signature.
• A letter from the relevant union or guild, which should generally contain specifications such as:
  • The description of the union or guild;
  • The working title and the relevant location(s) of the TV or film production;
  • The name of the work permit applicant;
  • A statement for the officer’s consideration indicating that the union or guild is of the view that the work to be performed is subject to a collective agreement and that it has no objection to the foreign national working in the specified position for the specified company;
  • The signature of a senior representative of the organization; and
  • The date of signature.

Work permits under C14 may be issued for the duration of the intended employment or until the expiry of the travel document, whichever is earlier.  If there is no end date to the duration of the intended employment, immigration officers may issue a work permit that is valid for up to two years or until the expiry of the travel document, whichever is earlier.

C23 Exemption

As of February 17, 2016, key creative personnel and talent associated with Canadian, non-profit performing arts companies and organizations in the orchestral music, opera, live theatre, and dance disciplines (i.e. ballet, contemporary) may now be eligible for an LMIA-exempt work permit pursuant to R205(b).  Immigration Officers will issue work permits under exemption code C23 if they are satisfied that reciprocal employment opportunities exist for Canadians and permanent residents. Evidence of reciprocal employment opportunities may include:

• An Offer of Employment submitted by the employer (i.e., performing arts company or organization), pursuant to R209.11, which clearly indicates:
  • The applicant’s job offer (job title and main duties) is in the dance, opera, orchestra or live theatre discipline of the arts;
  • The employer is a current recipient of annual or multi-year operational funding support from the Canada Council for the Arts or of financial support via parliamentary appropriation (i.e. National Arts Centre); and
• A letter (or other evidence) submitted by the applicant that has been provided by the applicable Canadian performing arts representative or service organization and that proves reciprocal international opportunities exist for Canadians in that particular discipline (i.e. contemporary dancers, ballet choreographers, opera singers, actors in theatrical productions, orchestral musicians).

The letter should generally include specifications such as:

• The organization’s mandate, including information on who is eligible for membership;
• The discipline in question (dance, live theatre, orchestra, opera) and the types of work (e.g., dancer, choreographer) for which the organization can affirm reciprocity;
• A statement affirming that reciprocity has been known to exist over the past year, including details on how the organization is able to affirm reciprocity;
• The signature of a senior representative of the organization able to affirm reciprocity; and
• The date of signature.

If applicable, the applicant may also provide a copy of a formal agreement between a Canadian performing arts organization and an international performing arts organization that stipulates the employment of particular workers who possess intellectual property related to the production (i.e. choreography, lighting or set design, or direction).

For some disciplines and occupations, there may be multiple representative or service organizations able to affirm reciprocity. It is anticipated that the following organizations may provide letters of reciprocity to work permit applicants:

• Dance: Canadian Dance Assembly, International Alliance of Theatrical Stage Employees (“IATSE”), Canadian Actors’ Equity Association, Regroupement québécois de la danse;
• Orchestra: Orchestras Canada, Canadian Federation of Music;
• Theatre: IATSE, Canadian Actors’ Equity Association; and
• Opera: Opera.ca, Canadian Actors’ Equity Association.

A C23 work permit may be issued for the duration of the intended employment or until the expiry of the travel document, whichever is earlier. If there is no end date to the duration of the intended employment, immigration officers may issue a work permit that is valid for up to two years or until the expiry of the travel document, whichever is earlier.

Revised Business Visitor Guidance

As mentioned above, CIC’s business visitor guidance has been revised.  It now states that the following foreign nationals may be considered under the business visitor category:

• Film producers employed by foreign companies for commercial shoots (for film co-producers, refer to T11 non-trade agreements); and
• Essential personnel (i.e. actors, directors, technicians) entering Canada for short durations (typically no longer than two weeks) for a foreign-financed commercial (i.e., advertising) shoot (for television, magazines or other media).

The guidance further states that the onus is on the applicant to provide any and all relevant documentation that would support a request for a work permit exemption under the business visitor category.

As previously mentioned, on April 1, 2015, Citizenship and Immigration Canada published regulations implementing its Electronic Travel Authorization (“eTA”) program.  The eTA program was modeled after the U.S. Electronic System for Travel Authorization, which is a mandatory registration required for foreign travelers who wish to enter the United States under the Visa Waiver Program.  Once implemented, it will require most visa-exempt foreign nationals who travel to Canada without a temporary resident visa (“TRV”) to obtain an eTA.

Under the eTA program, applicants will pay a $7.00 CAD processing fee electronically in connection with their online eTA application.  Once issued, an eTA will be valid for five years from the day on which it is issued or until the applicant’s passport or travel document expires, whichever comes first.  The regulations also provide an officer with the ability to cancel an eTA that was issued to a foreign national if the officer determines that the foreign national is inadmissible or if the foreign national becomes subject to a declaration made by the Minister under the Immigration and Refugee Protection Act.

The regulations initially required eTAs to be mandatory as of March 15, 2016.  Fortunately, the new Liberal Government has decided to delay the enforcement of the eTA requirement until Fall 2016 (no exact date end date has been announced) by implementing a “leniency period.”

During the leniency period, visa-exempt foreign nationals who do not have an eTA will still be permitted to enter Canada as long as they have appropriate travel documents, such as a valid passport.  Nevertheless, visa-exempt foreign nationals are encouraged to obtain an eTA as soon as possible.

Of course, even after the leniency period has ended, not everyone will require an eTA.  For example, United States citizens are exempt from the eTA requirement.  Also, as the eTA requirement is intended to apply to visa-exempt applicants, a foreign national who already holds a TRV is also not required to obtain an eTA.  In addition, in order to reduce the duplication of information to be provided by visa-exempt foreign nationals, if a visa-exempt applicant applies for a work permit or study permit, they will not need to also obtain an eTA.  A complete list of eTA exemptions appears in my previous article.

Since Express Entry began on January 1, 2015, Citizenship and Immigration Canada (“CIC”) has issued several rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants are selected to receive an ITA based on how many points they are assigned under the Comprehensive Ranking System (“CRS”).

As of the date of this article, CIC has issued a total of 26 rounds of ITAs.  A summary of these Express Entry rounds appears below:

• In Round #1 (January 31, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 886 CRS points.
• In Round #2 (February 7, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 818 CRS points.
• In Round #3 (February 20, 2015), CIC issued 849 ITAs.  Applicants in this round were required to receive at least 808 CRS points.
• In Round #4 (February 27, 2015), CIC issued 1187 ITAs.  Applicants in this round were required to receive at least 735 CRS points.
• In Round #5 (March 20, 2015), CIC issued 1620 ITAs.  Applicants in this round were required to receive at least 481 CRS points.
• In Round #6 (March 27, 2015), CIC issued 1637 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #7 (April 10, 2015), CIC issued 925 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #8 (April 17, 2015), CIC issued 715 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #9 (May 22, 2015), CIC issued 1361 ITAs.  Applicants in this round were required to receive at least 755 CRS points.
• In Round #10 (June 12, 2015), CIC issued 1501 ITAs.  Applicants in this round were required to receive at least 482 CRS points.
• In Round #11 (June 26, 2015), CIC issued 1575 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #12 (July 10, 2015), CIC issued 1516 ITAs.  Applicants in this round were required to receive at least 463 CRS points.
• In Round #13 (July 17, 2015), CIC issued 1581 ITAs.  Applicants in this round were required to receive at least 451 CRS points.
• In Round #14 (August 7, 2015), CIC issued 1402 ITAs.  Applicants in this round were required to receive at least 471 CRS points.
• In Round #15 (August 21, 2015), CIC issued 1523 ITAs.  Applicants in this round were required to receive at least 456 CRS points.
• In Round #16 (September 8, 2015), CIC issued 1517 ITAs.  Applicants in this round were required to receive at least 459 CRS points.
• In Round #17 (September 18, 2015), CIC issued 1545 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #18 (October 2, 2015), CIC issued 1530 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #19 (October 23, 2015), CIC issued 1502 ITAs.  Applicants in this round were required to receive at least 489 CRS points.
• In Round #20 (November 13, 2015), CIC issued 1506 ITAs.  Applicants in this round were required to receive at least 484 CRS points.
• In Round #21 (November 27, 2015), CIC issued 1559 ITAs.  Applicants in this round were required to receive at least 472 CRS points.
• In Round #22 (December 4, 2015), CIC issued 1451 ITAs.  Applicants in this round were required to receive at least 461 CRS points.
• In Round #23 (December 18, 2015), CIC issued 1503 ITAs.  Applicants in this round were required to receive at least 460 CRS points.
• In Round #24 (January 6, 2016), CIC issued 1463 ITAs.  Applicants in this round were required to receive at least 461 CRS points.
• In Round #25 (January 13, 2016), CIC issued 1518 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #26 (January 27, 2016), CIC issued 1468 ITAs.  Applicants in this round were required to receive at least 457 CRS points.

The lowest minimum CRS score that was previously eligible to receive an ITA was 450 points, which occurred in rounds 17 and 18.  However, the minimum CRS score subsequently rose to over 480 in the rounds 19 and 20.

This was still a low enough score for a candidate to be selected without a Labour Market Impact Assessment or a nomination under a provincial nominee program Express Entry stream.  However, many applicants were hoping that the minimum CRS score would continue to drop before the end of 2015; this clearly did not occur.

Fortunately, the minimum CRS score appears to be dropping again.  The last two rounds (rounds 25 and 26) have required minimum CRS scores (453 points and 457 points) that have approached the levels used in rounds 17 and 18.

As previously mentioned, when the Ontario Immigrant Nominee Program (“OINP”) announced the termination of its Investor Stream on October 29, 2015, it promised that it would create new Entrepreneur and Corporate Streams to replace it.  On December 18, 2015, the OINP published complete eligibility criteria and application guidelines for these new business streams.  Details of both are provided below.

The Corporate Stream

Overview

The Corporate Stream is intended to support established international corporations looking to expand into Ontario or buy an existing business.  The OINP is currently accepting applications under this stream.

An eligible corporation begins the process by submitting an application under the Corporate Stream.  If the application is approved, the corporation will be required to sign a Performance Agreement, which outlines its commitments to invest and create jobs in Ontario.  Key staff will then be issued temporary work permit support letters, which they can use to obtain work permits.

Once the key staff have arrived in Ontario, the corporation has up to 20 months from the date that they arrive to implement the business plan, actively manage the business, and meet all of the commitments outlined in the Performance Agreement.  All permanent full-time jobs that have been created must have been continuously filled for at least 10 months, prior to the corporation’s submission of its Final Report.

The applicant corporation is responsible for filing a Final Report with the OINP between 18 and 20 months after the key staff have arrived in Ontario with their valid work permits.  The Final Report must be submitted to the OINP in order to initiate the nomination process.

If the corporation is successful in meeting the commitments outlined in its Performance Agreement, the key staff will be eligible to apply for nomination.  If nominated by the OINP, these key staff members may apply for permanent residence under the Provincial Nominee Class.

Eligibility Requirements

Corporate/Investment Requirements

To be eligible under the Corporate Stream, the corporation must meet the following requirements:

• The corporation must have already been established for at least 36 months at the time of the application.
• The corporation must invest a minimum of $5 million CAD in a new or existing Ontario business.  The investment funds must have been obtained from lawful sources.
• The proposed investment activity must be of significant economic benefit to Ontario.
• If the corporation is purchasing an existing Ontario business, the following additional criteria apply: (1) the acquired business must have been in continuous operation by the same owner for the preceding 60 months, (2) the purchase must completely transfer ownership from the previous owner(s) to the corporation, (3) the Ontario business must not have been previously owned/operated by a current or former OINP business stream nominee, (4) the proposed business plan must intend to grow the business (buy and hold business plans with no intent to grow the business are not permitted), (5) the corporation must maintain, at a minimum, the current wage levels and employment terms of existing staff, (6)  the corporation must preserve all existing permanent full-time jobs, and (7) the corporation must also satisfy the job creation requirement (see below).
• The corporation must create 5 full-time, permanent positions for Canadian citizens or permanent residents for each key staff member nominated.  Positions must be paid or at above the prevailing wage for that position.  A full time position means a position that consists of at least 1,560 hours of paid employment in a 12 month period.  However, the following are not considered permanent, full-time employees even if the employee works 1,560 hours in a 12 month period:  (1) seasonal or part-time employees, (2) subcontactors or agency workers, or (3) employees who do not work on the corporation’s premises (i.e. employees who work from home or who telecommute).
• There must be a clear structural linkage between the parent corporation and the proposed new business in Ontario (i.e. subsidiary, branch, or affiliate of the parent).
• The business must intend to make a profit through the sale of goods and/or services.
• Primary income sources must be from active (earned) income, not passive (unearned) income.
• The proposed business must comply with Canadian legal requirements and all regulatory industry and licencing requirements, which govern its legitimate operation.
• The proposed business must comply with all provincial labour laws, including employment standards, health and safety, and labour relations legislation.
• The proposed business must be considered a permanent business in Ontario.
• The corporation must submit a business plan with its application, prepared in accordance with the OINP’s requirements.

Please note that additional criteria and due diligence requirements apply where the proposed business is a land development or leasehold company.  However, this is outside the scope of the present article.

Ineligible Business Types

As the OINP will not process applications for proposed businesses that are likely to have little or no long term economic benefit.  Therefore, the proposed Ontario business may not be:

• Existing Franchises in Ontario (new foreign franchises expanding into Ontario are permitted) [Greater Toronto Area ("GTA") only];
• Gas Stations [GTA only];
• Tire Recycling;
• Scrap Metal Recycling;
• Pawnbrokers;
• Bed and Breakfasts [GTA only];
• Holding Companies;
• Laundromats;
• Automated Car Wash Operations;
• Payday loan and related businesses; and
• Businesses which have been previously owned / operated by current or former OINP business stream nominees

Key Staff Requirements

Applicant corporations may request up to 5 key staff members who will establish the business in Ontario and who are seeking a provincial nomination to permanently relocate to the province.  All key staff must meet Stage 1 requirements at the time of the application in order for the complete application to be approved.  Key staff must also meet additional nomination requirements once the business has met commitments outlines in the Performance Agreement (Stage 2) in order to be considered eligible for provincial nomination.

Stage 1 Key Staff Requirements

• Key staff must be essential to the establishment and operation of the proposed business.
• Key staff must be in a senior, executive, managerial, or specialized knowledge capacity (National Occupational Classification (“NOC”) level 0 or A) in the applicant corporation’s existing business.
• Only one key staff in NOC A can be proposed.
• The key staff must have at least 36 months of experience in the last 60 months, in same position that they will hold in the proposed Ontario business, with the applicant corporation.  They must have been continuously working for the applicant corporation in that position during the 12 months prior to the submission of the application.
• Key staff must not have an immediate family relationship with any member of the corporation’s Executive Board, Board of Directors, or a shareholder owing more than 10% equity in the applicant corporation. Immediate family members include: spouse, mother, father, sister, brother, grandparents, and the spouse’s immediate family members.
• Key staff must not hold any equity in the applicant corporation, except where it was obtained as part of the remuneration in accordance with his or her employment contract, in which case the equity must be less than 10% of the applicant corporation’s business.
• The position to be assumed in the proposed Ontario business must be a permanent, full-time position and must meet prevailing wage levels.

Stage 2 Key Staff Requirements

After the corporation has met its Performance Agreement commitments, key staff will be required to meet the following additional requirements in order to be nominated for permanent residence:

• Key staff must be in a position for which they were approved by the OINP and carrying out the approved job duties.
• Key staff must physically reside in Ontario for at least 75% of each year (9 months out of the year) that they are in Ontario under a temporary work permit.
• Key staff must have a language proficiency equivalent to the Canadian Language Benchmark (“CLB”) Level 5.

The Entrepreneur Stream

Overview

The Entrepreneur Stream is designed to support individuals from countries who are looking to implement a new business idea or buy an existing business in the Province of Ontario.  However, unlike the Corporate Stream, individual entrepreneurs may not immediately submit an application under the Entrepreneur Stream. This is because the Entrepreneur Stream is subject to an Expression of Interest (“EOI”) System, which is similar to the Government of Canada’s Express Entry System.

Prospective entrepreneurs may submit an EOI to indicate their interest in being considered by the OINP they but will not be permitted to apply under the Entrepreneur Stream unless they receive an Invitation to Apply (“ITA”).  If the entrepreneur receives an ITA from the OINP, he or she can submit a complete application under the Entrepreneur Stream.

Under the EOI System, applicants are selected based on the number of ranking points that they receive, rather than when they file their application.  As a result, an applicant who submits an EOI after another applicant but who has a higher number of ranking points will receive an ITA before that other applicant.

Once an entrepreneur has received an ITA, has filed a complete application, and has been approved, he or she then signs a Performance Agreement with the OINP.  This Performance Agreement outlines the commitments that the entrepreneur has made to invest and create jobs in Ontario.  The OINP will then issue a temporary work permit support letter that the entrepreneur can use to apply for a temporary work permit, which will allow him or her to establish the proposed business in Ontario.

The entrepreneur must arrive in Ontario using their temporary work permit within 12 months from the date of their letter of confirmation.  Upon arrival, the entrepreneur will have up to 20 months from that date to implement the business plan and satisfy all of the commitments contained in the Performance Agreement.

The required permanent full-time jobs must be filled within 10 months from the date of the entrepreneur’s arrival in Canada they must remain filled for at least 10 months prior to the submission of the Final Report.  The entrepreneur will be responsible for filing a Final Report to the OINP between 18 and 20 months after he or she has arrived in Canada.  This Final Report must be submitted to the OINP in order to initiate the nomination process.

If the entrepreneur is successful in meeting the commitments described in the Performance Agreement, he or she will receive a Confirmation of Nomination, which may be used to apply for permanent residence.

Eligibility Requirements

Minimum Eligibility Requirements

There are 5 factors that have minimum eligibility requirements for the entrepreneur and, if applicable, his or her business partner:

• Experience – Applicants must have at least 36 months of full-time business experience in the last 60 months, with the last 12 months in either active general business administration or in an area of expertise related to the proposed business opportunity.  This experience must be as a business owner or senior manager.
• Net Worth - If the proposed business will be located in the GTA, the entrepreneur must have a minimum net worth of $1,500,000.00.  If the proposed business will be located outside the GTA, the entrepreneur must have a minimum net worth of $800,000.00.  If the proposed business will be in the Information and Communications Technology/Digital Communications Sector (regardless of where the  business is established in Ontario), the entrepreneur must have a net worth of $800,000.00.
• Personal Investment Funds – If the proposed business will be located in the GTA, the entrepreneur must make a minimum personal investment of $1,000,000.00 and have a minimum equity ownership of $33.3%.  If the proposed business will be located outside the GTA, the entrepreneur must make a minimum personal investment of $500,000.00 and have a minimum equity ownership of 33.3%.  If the proposed business will be in the Information and Communications Technology/Digital Communications Sector (regardless of where the  business is established in Ontario), the entrepreneur must make a minimum personal investment of $500,000.00 and have a minimum equity ownership of 33.3%.
• Job Creation – The entrepreneur must commit to creating at least 2 permanent full-time jobs for Canadian citizens or permanent residents.  Positions must be paid or at above the prevailing wage for that position.  A full-time position means a position that consists of at least 1,560 hours of paid employment in a 12 month period.  However, the following are not considered permanent, full-time employees even if the employee works 1,560 hours in a 12 month period:  (1) seasonal or part-time employees, (2) subcontractors or agency workers, or (3) employees who do not work on the corporation’s premises (i.e. employees who work from home or who telecommute).
• Exploratory Visit – If the entrepreneur purchases an existing business, he or she must make at least one business-related visit to Ontario with the 12 months preceding the submission of the application.

The entrepreneur must meet the minimum requirements for all of the above factors in order to be eligible to apply under the Entrepreneur Stream.  If the entrepreneur is applying with a business partner who is also seeking nomination, the business partner must also meet all of the minimum requirements for each factor described above.  For example, if the proposed business is located in the GTA, both the entrepreneur and the business partner must each investment $1,000,000.00 (a total of $2,000,000.00) and each create at least 2 permanent full time jobs (a total of 4).

General Requirements for the Proposed Business

In addition to the above minimum requirements, the proposed business must meet the following general requirements:

• The business must intend to make a profit through the sale of goods and/or services.
• Primary income sources must be from active (earned) income, not passive (unearned) income.
• The proposed business must comply with Canadian legal requirements and all regulatory industry and licencing requirements, which govern its legitimate operation.
• The proposed business must comply with all Ontario labour laws, including employment standards, health and safety, and labour relations legislation.
• The proposed business must be considered a permanent business in Ontario.
• Any third party investors must be a Schedule I or Schedule II bank or an institutional investor.

If the entrepreneur is purchasing an existing Ontario business, the following additional criteria apply:

• The Ontario business must have been in continuous operation by the same owner for the preceding 60 months
• The purchase must completely transfer ownership of the Ontario business from the previous owner(s) to the entrepreneur, the business partner, and/or third party investor(s).
• The Ontario business must not have been previously owned/operated by a current or former OINP business stream nominee.
• The entrepreneur must preserve all existing permanent full-time jobs and create 2 additional permanent full-time jobs.
• The entrepreneur must maintain, at a minimum, the current wage levels and employment terms of existing staff.
• The proposed business plan must demonstrate that the entrepreneur intends to grow the business.  Buy and hold business plans with no intent to grow the business are not permitted in the Entrepreneur Stream.

As with the Corporate Stream, the OINP will not process applications for proposed businesses that are likely to have little or no long term economic benefit.  Therefore, the proposed Ontario business may not be:

• Existing Franchises in Ontario (new foreign franchises expanding into Ontario are permitted) [Greater Toronto Area ("GTA") only];
• Gas Stations [GTA only];
• Tire Recycling;
• Scrap Metal Recycling;
• Pawnbrokers;
• Bed and Breakfasts [GTA only];
• Holding Companies;
• Laundromats;
• Automated Car Wash Operations;
• Payday loan and related businesses; and
• Businesses which have been previously owned / operated by current or former OINP business stream nominees

Nomination Requirements

The entrepreneur will be required to satisfy additional nomination requirements in order to be nominated by the OINP, once he or she has established the Ontario business and met the commitments described in the Performance Agreement.  The entrepreneur does not need to satisfy these criteria at the time of the initial application filing but must do so when applying for nomination after the business has been established.  The nomination criteria are as follows:

• The entrepreneur must have a language proficiency equal to CLB Level 5 or equivalent.
• The entrepreneur must be physically residing in Ontario for at least 75% of each year (9 months out of the year) that they are in Ontario establishing his or her business under a temporary work permit.

EOI Scoring Factors and Breakdown of Ranking Points

When a proposed entrepreneur submits an EOI, he or she will receive a total ranking score.  These ranking points may be earned in three categories: (1) experience, (2) investment, and (3) human capital; the maximum score available is 160 points.  These three categories are briefly described below.

Experience Factors

The maximum number of points awarded for experience factors is 50 points.

Applicants may claim points based on past business ownership or senior management experience during the last 60 months.  If an applicant has both business ownership experience and senior management experience during the past 60 months, he or she must use only 1 of these 2 types of experiences in the EOI.

The maximum number of points awarded for experience as a business owner is 25 points.  A business owner must have owned at least 33.3% of the business during the period claimed. A business owner must also have played an active role, meaning that he or she was personally involved in the day-to-day operations of the business and had direct involvement in decision making.

The maximum number of points awarded for experience as a senior manager is 20 points.  A senior manager’s role must have included senior decision-making responsibilities in areas such as operations, sales, finance, marketing, distribution, human resources, research and development, etc.

Entrepreneurs may also claim additional points based on past specific experiences in a high growth business and/or export trade business:

• High Growth Business - Experience in a business that experienced at least a 20% increase in revenue in 2 consecutive years.  Applicants will receive 15 points for this specific experience.
• Export Trade Business – Experience in a business exporting at least 20% of goods/services to a foreign market.  Applicants will receive 25 points for this specific experience.

Investment Factors

The maximum number of points awarded for investment factors is 90 points.  Applicants may claim points for net worth, investment amount, job creation, exploratory visits, key sectors, and NOC classification of the jobs that the proposed Ontario business will create:

• Net Worth – Applicants may claim points based on total net worth, up to a maximum of 15 points.  Personal net worth must be legally obtained and verifiable.
• Investment Amount – Applicants may claim points based on the total personal investment amount that will be made into the proposed Ontario business, up to a maximum of: (1) 20 points for a proposed Ontario business located within the GTA, or (2) 25 points for a proposed Ontario business located outside the GTA or in the Information and Communications Technology/Digital Communications Sector.  However, the following are not considered eligible investments: (1) cash, cash equivalents, and working capital (i.e. uncommitted funds) held by the Ontario business, and (2) wage payments made to the entrepreneur and his or her family members.
• Job Creation – Applicants may claim points based on the total number of permanent full time jobs that the proposed Ontario business will create for Canadian citizens or permanent residents, up to a maximum of 20 points.
• Exploratory Visits – Applicants may claim points based on any business-related visits to Ontario within the 1 year period preceding the submission of the EOI, up to a maximum of 5 points.  However, there is no mandatory requirement for any exploratory visits unless the entrepreneur is purchasing an existing business.
• Key Sectors Targeted – Applicants may claim points depending on whether the proposed Ontario business is in a key sector, as determined by the Government of Ontario, up to a maximum of 10 points.  However, there is no mandatory requirement that the proposed Ontario business be on one of these key sectors.  Key sectors currently defined as economic priorities for Ontario are: (1) aerospace, (2) automotive. (3) financial services, (4) food and beverage manufacturing, (5) information and communications technology, (6) life sciences, (7) mining, (8) tourism investment, and (9) water technology.
• NOC 0, A, or B Jobs – Applicants may claim points based on the NOC 0, A, or B jobs that the proposed Ontario business will create for Canadian citizens or permanent residents, up to a maximum of 15 points.  However, there is no mandatory requirement that the 2 newly created jobs actually be in NOC 0, A, or B.

Human Capital Factors

The maximum number of points that may be awarded for human capital factors is 20 points.  Applicants may claim points based on their level of education and official language ability:

• Level of Education – Applicants may claim points based on their highest level of post-secondary education completed, up to a maximum of 5 points.  However, there is no minimum education requirement to be considered for the Entrepreneur Stream.  Post-secondary education refers to full-time studies from a licenced post-secondary institution that leads to a credential that is the equivalent to a Canadian degree, diploma, or certificate.  If an entrepreneur receives an ITA, and claiming to have completed 6 months or more of post-secondary education, they will be required to provide evidence of this education when they submit their complete application, including their Educational Credential Assessment results.
• Official Language Ability -Applicants may claim points based on their proficiency in English or French, up to a maximum of 15 points.   Although there is no minimum mandatory language requirement to be considered for the Entrepreneur Stream at the EOI stage, language proficiency equal to CLB Level 5 will be required at the time that they apply to be nominated by the OINP.

Since Express Entry began on January 1, 2015, Citizenship and Immigration Canada (“CIC”) has issued several rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants are selected to receive an ITA based on how many points they are assigned under the Comprehensive Ranking System (“CRS”).

As of the date of this article, CIC has issued  a total of 20 rounds of ITAs.  A summary of these Express Entry rounds appears below:

• In Round #1 (January 31, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 886 CRS points.
• In Round #2 (February 7, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 818 CRS points.
• In Round #3 (February 20, 2015), CIC issued 849 ITAs.  Applicants in this round were required to receive at least 808 CRS points.
• In Round #4 (February 27, 2015), CIC issued 1187 ITAs.  Applicants in this round were required to receive at least 735 CRS points.
• In Round #5 (March 20, 2015), CIC issued 1620 ITAs.  Applicants in this round were required to receive at least 481 CRS points.
• In Round #6 (March 27, 2015), CIC issued 1637 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #7 (April 10, 2015), CIC issued 925 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #8 (April 17, 2015), CIC issued 715 ITAs.  Applicants in this round were required to receive at least 453 CRS points.
• In Round #9 (May 22, 2015), CIC issued 1361 ITAs.  Applicants in this round were required to receive at least 755 CRS points.
• In Round #10 (June 12, 2015), CIC issued 1501 ITAs.  Applicants in this round were required to receive at least 482 CRS points.
• In Round #11 (June 26, 2015), CIC issued 1575 ITAs.  Applicants in this round were required to receive at least 469 CRS points.
• In Round #12 (July 10, 2015), CIC issued 1516 ITAs.  Applicants in this round were required to receive at least 463 CRS points.
• In Round #13 (July 17, 2015), CIC issued 1581 ITAs.  Applicants in this round were required to receive at least 451 CRS points.
• In Round #14 (August 7, 2015), CIC issued 1402 ITAs.  Applicants in this round were required to receive at least 471 CRS points.
• In Round #15 (August 21, 2015), CIC issued 1523 ITAs.  Applicants in this round were required to receive at least 456 CRS points.
• In Round #16 (September 8, 2015), CIC issued 1517 ITAs.  Applicants in this round were required to receive at least 459 CRS points.
• In Round #17 (September 18, 2015), CIC issued 1545 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #18 (October 2, 2015), CIC issued 1530 ITAs.  Applicants in this round were required to receive at least 450 CRS points.
• In Round #19 (October 23, 2015), CIC issued 1502 ITAs.  Applicants in this round were required to receive at least 489 CRS points.
• In Round #20 (November 13, 2015), CIC issued 1506 ITAs.  Applicants in this round were required to receive at least 484 CRS points.

Although the lowest CRS score eligible to receive an ITA has been 450 points (which occurred in rounds 17 and 18, the minimum CRS score has risen to over 480 in the last two rounds (rounds 19 and 20).  This is still a low enough score for a candidate to be selected without a Labour Market Impact Assessment or a nomination under a provincial nominee program Express Entry stream.  However, many applicants were hoping that the minimum CRS score would continue to drop for the remainder of the year; this clearly did not occur.

Background

As was previously mentioned, Jason Kenney, Minister of Employment and Social Development, and Chris Alexander, Minister of Citizenship and Immigration, announced changes to Canada’s Temporary Foreign Worker (“TFW”) program on June 20, 2014.  Among these changes was a proposal to impose fines of up to $100,000 on employers who violated the TFW program.  The names of employers who were fined, and the amount of the fine, would also be published on the public list of violators.

At the end of September 2014, Employment and Social Development Canada (“ESDC”) published a discussion paper, which proposed to implement a system of Administrative Monetary Penalties (“AMPs”) for violations of the TFW program.  It also proposed to increase the maximum ban for employers who violate the TFW program from two years to ten years (a permanent ban was also being considered).

On June 12, 2015, the Minister of Citizenship and Immigration published amendments (the “Amendments”) to the Immigration and Refugee Protection Regulations (“IRPR”), which were intended to implement these proposed changes.  These Amendments will now come into force on December 1, 2015.

Overview

According to R209.94, the purpose of AMPs is to encourage compliance with the provisions of the Immigration and Refugee Protection Act (“IRPA”) and the IRPR, and not to punish.  According to R209.95(1), an employer who fails to comply with one of the conditions listed in Schedule 2, Table 1, if the failure to do so is not justified under the IRPR, commits a violation and:

1. Is liable to an administrative monetary penalty of an amount that is determined in accordance with R209.98 [see Schedule 2, Table 2] or if it is determined under that section that there is no penalty, is issued a warning informing the employer that there is no administrative monetary penalty for the violation but that the violation will be considered in the calculation of the total number of points under R209.991(1)(a)(i) [see Schedule 2, Tables 4 and 5] for any subsequent violation; and
2. If applicable, is ineligible to employ a foreign national for whom a work permit is required for the period determined in accordance with R209.99 [Schedule 2, Table 3].

Calculation of AMPs

The AMPs will be determined by the Minister of Employment and Social Development (“ESDC”) or a Citizenship and Immigration Canada (“CIC”) officer based on:

1. The type of violation;
2. Whether the employer is an individual, small business, or large business;
3. The employer’s history of violations that occurred on or after December 1, 2015; and
4. The severity of the violation according to a system of points.

AMPs are cumulative, and separate AMPs will be imposed for each violation.

According to R209.93, the term “small business” is defined as any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues at the time a request for an assessment is received, or if no such request is made, at the time a copy of an offer of employment for a work permit application is provided to the Minister.  The term “large business” is defined as any business that does not meet the definition of “small business.”

According to R209.991, the total number of points in respect of each violation is determined by adding the points resulting from the employer’s compliance history [Schedule 2, Table 4] to the points resulting from the severity of the violation [Schedule 2, Table 5].  However, where the employer has made an acceptable voluntary disclosure, the total number of calculated points may be reduced as follows:

1. If the total number is four or more, four points will be subtracted from the total; or
2. If the total number is less than four, the value will be replaced with a value of zero.

The voluntary disclosure made by an employer with respect to the commission of a violation by the employer is considered acceptable if:

1. The disclosure is complete; and
2. At the time the voluntary disclosure is made, the employer’s compliance is not being reviewed and no enforcement action related to an offence under IRPA is being undertaken against the employer.

However, a CIC officer or the Minister of ESDC may still conclude that the voluntary disclosure is not acceptable after considering

1. The severity of the impact of the violation on the foreign national;
2. In the case of an LMIA-exempt work permit, the severity of the impact of the violation on the Canadian economy, or in the case of an LMIA-based work permit, the severity of the impact of the violation on the Canadian labour market;
3. Whether the disclosure was made in a timely manner;
4. The number of times an acceptable voluntary disclosure is made by the employer; and
5. The nature of the condition with which the employer failed to comply.

The maximum AMP is $100,000 per violation and the total that can be imposed is capped at $1 million on a single notice of final determination.  In addition, the total AMPs imposed on a single employer cannot exceed $1 million in the one-year period preceding the date of the final determination.

There is no limitation on the collections period for AMPs.  A new Labour Market Impact Assessment (“LMIA”) or work permit application will not be accepted if the employer has not paid an outstanding AMP or is not complying with a payment agreement (if it has entered into one).

Rules Applicable to Violations

As violations are calculated based on the number of violations that have occurred, the following rules will determine when certain conduct will be treated as a separate violation:

1. A violation of a condition that affects more than one foreign national constitutes a separate violation for each foreign national affected [R209.96 (1)].
2. A violation of any one of the following conditions constitutes a separate violation:
• To provide the foreign national with employment in the same occupation as the occupation that is set out in the foreign national’s offer of employment;
• To provide the foreign national with wages that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment; and
• To provide the foreign national with working conditions that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment [R209.96(2)]
3. For employers who employ foreign nationals as live-in caregivers, a violation of either one of the following conditions constitutes a separate violation:
• To ensure that the foreign national resides in a private household in Canada,
• To ensure that the foreign national provides child care, senior home support care or care of a disabled person in that household without supervision [R209.96(3)].
4. A violation of the condition of making reasonable efforts to provide a workplace that is free of abuse within the meaning of R72.1(7)(a) [physical abuse, sexual abuse, psychological abuse, and financial abuse] constitutes a separate violation [R209.96(4)].

Assessment Procedure

If it is assessed during an inspection that a violation has been committed because the employer failed to comply with a condition and that failure was not justified under the IRPR, a preliminary finding must be issued to the employer.  A notice of preliminary finding may be corrected or cancelled before a final determination is made.

After the notice of preliminary finding is issued, employers will be provided the opportunity to make written submissions regarding the information in the notice within 30 days after it is received.  An employer may be granted an extension to this opportunity to respond if the Minister of ESDC or the CIC officer is satisfied that there is a reasonable explanation for requesting a longer period.

The Minister of ESDC or a CIC officer shall issue a notice of final determination if it is determined that a violation was committed because the employer failed to comply with a condition and that failure was not justified.  This determination is final and binding except for judicial review.

Ineligibility to Participate in the TFWP

Employer violations may also result in a ban from future participation in the TFW program.  As of December 1, 2015, the maximum period of ineligibility will change from two years to a permanent ban in the most serious cases. 

According to R209.99(1), the period of ineligibility for a violation is the period set out in Column 2, 3 or 4 of Schedule 2, Table 3.  If a ban is imposed, the duration of the ineligibility can vary from one year to a permanent bar, depending on the circumstances.  According to R209.99(2), the ban begins on the day that the determination is made in respect of the employer.

Publication of Employer’s Information

According to R209.997(1), if the Minister of ESDC or a CIC officer makes a determination under R209.996 that a violation has occurred, the employer’s details will be added to the public list of violators, except where the employer has received only a warning and no AMP has been imposed.  The public list will include the following information:

1. The employer’s name;
2. The employer’s address;
3. The criteria or conditions with which the employer failed to comply;
4. The day on which the determination was made;
5. The eligibility status of the employer; and
6. If applicable:
• The AMP amount, and
• The ineligibility period of the employer.

Conclusion

In light of the increased penalties that will become effective on December 1, 2015, it is critical that employers ensure their compliance with all conditions imposed upon them, in connection with any LMIA-based or LMIA-exempt work permit, and that they continue to comply with these conditions for the duration of the TFWs work permit in Canada.

SCHEDULE 2

VIOLATIONS

TABLE 1
EMPLOYER CONDITIONS

TABLE 2
ADMINISTRATIVE MONETARY PENALTY AMOUNTS

TABLE 3
PERIOD OF INELIGIBILITY

TABLE 4
COMPLIANCE HISTORY

TABLE 5
SEVERITY OF THE VIOLATION