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.

Introduction

On January 1, 2015, Immigration, Refugees, and Citizenship Canada, formerly known as Citizenship and Immigration Canada, implemented its Express Entry System.  Express Entry applies to the following permanent resident categories:

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

Under Express Entry, applicants who wish to be considered under any of the above permanent resident categories must now submit an online profile, to indicate their interest in immigrating to Canada.  Those who meet the applicable eligibility requirements of at least one of the classes described above (i.e. FSW, CEC, FST, or PNP (Express Entry Stream) are accepted into a special pool of candidates (the “Express Entry Pool”).

Of course, acceptance into the Express Entry Pool does not guarantee that a particular candidate will receive an Invitation to Apply (“ITA”) for permanent residence.  Instead, candidates in the Express Entry Pool are ranked against each other using a point-based system called the Comprehensive Ranking System (“CRS”).  The candidates with the highest CRS score are periodically selected from the Express Entry Pool and sent an ITA.

On October 21, 2016, the Minister of Citizenship and Immigration issued revised Ministerial Instructions (the “2016 Amendments”), which made significant changes to the existing Express Entry System.  These changes came into effect on November 19, 2016.

Changes to Qualifying Offers of Arranged Employment

Under the prior Express Entry System, a foreign national with a “qualifying offer of arranged employment” received 600 CRS points, more than enough to guarantee that they would immediately receive an ITA.  However, only a permanent, full-time offer of employment that was based on a Labour Market Impact Assessment (“LMIA”) issued by Employment and Social Development Canada would qualify.

Under the 2016 Amendments, certain LMIA-exempt work permits will also count as a qualifying offer of arranged employment.  However, the permanent offer of employment must be made by the employer listed on the work permit, the foreign national must be working for that employer, and the foreign worker must have accumulated at least one continuous year of full-time work experience (or the equivalent in part-time work) with that employer.

To be eligible, the LMIA-exempt work permit must have been issued in the circumstances described in Subsection 204(a) [pursuant to an international agreement between Canada and one or more countries, such as the North American Free Trade Agreement], Subsection 204(c) [an agreement entered into by the Minister with a province or group of provinces (i.e. provincial nominees)], or Section 205 [i.e. significant benefit to Canada, intra-company transferees, reciprocal employment, etc.] of the Immigration and Refugee Protection Regulations (“IRPR”).

Unfortunately, the number of CRS points that will be awarded for having a qualifying offer of arranged employment has also dropped.  If the offer of employment is for an occupation contained in Major Group 00 [Senior Management Occupations] of the National Occupational Classification (“NOC”), 200 CRS points are awarded.  In all other occupations (NOC 0 A, or B), 50 CRS points are awarded.

This will still benefit holders of the above LMIA-exempt work permits, who would not have previously received any CRS points for having a qualifying offer of arranged employment.  However, the drop in CRS points will severely disadvantage foreign nationals holding LMIA-based work permits, who would have received 600 CRS points under the previous Express Entry System; most will now receive only 50 CRS points.

CRS Points for Canadian Educational Credentials

In response to allegations that the previous Express Entry system disadvantaged international students graduating from Canadian post-secondary educational institutions, the Minister of Citizenship and Immigration had expressed a willingness to make it easier for them.  The 2016 Amendments attempt to address this problem by awarding additional CRS points for Canadian educational credentials.

The previous Express Entry System already offered CRS points for level of education but it treated Canadian and foreign educational credentials the same.  However, in order to obtain CRS points for a foreign educational credential, the foreign national would require an Educational Credential Assessment, confirming that the foreign credential was equivalent to a Canadian credential.

Under the 2016 Amendments, foreign nationals with Canadian educational credentials will now receive additional CRS points as follows:

• 15 points for an eligible credential from a one-year or two-year post-secondary program in Canada; and
• 30 points, for:
  • An eligible credential from a post-secondary program of three years or more;
  • An eligible credential from a university-level program at the master’s level or at the level of an entry-to-practice professional degree (i.e. a law degree, engineering degree, etc.) for an occupation listed in the NOC at Skill Level A, for which licensing by a provincial regulatory body is required; or
  • An eligible credential from a university-level program at a doctoral level.

The term “eligible credential” is defined as follows:

• A degree, diploma, certificate or trade or apprenticeship credential from a Canadian public post-secondary institution or from a Canadian private post-secondary institution that operated under the same rules and regulations as a Canadian public post-secondary institution;
• A diplôme d’études professionnelles or an attestation de spécialisation professionnelle earned through a program of study of at least 900 hours from a private secondary or post-secondary institution in Quebec; or
• A Bachelor’s, Master’s or doctoral degree from a Canadian private post-secondary institution, if a provincial statute authorizes that institution to confer that credential.

However, the following are not considered eligible credentials:

• Credentials obtained in a study or training program in which the study of English or French as a second language amounted to more than half of the program;
• Credentials obtained in a study or training program in which distance learning amounted to more than half of the program; or
• Credentials obtained in a study or training program while receiving a scholarship or fellowship that stipulated that the recipient return to their home country to apply the knowledge and skills gained.

CRS points are only awarded for the highest level of education and only if the following requirements are satisfied:

• For the purpose of obtaining the credential, the foreign national studied in Canada at a Canadian educational institution;
• For the purpose of obtaining the credential, the foreign national was enrolled in full-time study or training for at least eight months; and
• For the purpose of obtaining the credential, the foreign national was physically present in Canada for at least eight months.

Maximum CRS Points for Additional Factors

The 2016 Amendments define the phrase ”additional factors” to include:

• Qualifying offers of arranged employment;
• A nomination under the Express Entry Stream of a PNP; and
• Canadian educational credentials.

They also make clear that the maximum number of CRS points that may be awarded for these additional factors is 600 points.  So a foreign national who has already received 600 CRS points for being nominated under the Express Entry Stream of a PNP cannot also receive CRS points for a qualifying offer of arranged employment or for Canadian educational credentials.

Changes to the Deadline for Responding to an ITA

The 2016 Amendments increase the period of time that applicants will have to respond to an ITA.  Under the previous Express Entry System, applicants had only 60 days to complete an online Application for Permanent Residence (“APR”).  As of November 19, 2016, they now have 90 days to submit an online APR after receiving an ITA.

Miscellaneous Modifications

The 2016 Amendments also made several miscellaneous changes for the purposes of “consistently and clarity.”  For example, they now clarify that:

• The validity period of a spouse’s language test results is two years;
• In order to receive CRS points for either Canadian or foreign work experience, wages must have been paid or a commission must have been earned;
• Candidates must also meet the requirements of at least one of the federal economic programs subject to Express Entry to satisfy the minimum entry criteria; and
• If a candidate claims CRS points for a job offer, officers have the authority to assess whether the candidate is able to perform and is likely to accept and carry out this arranged employment.

Treatment of Applicants in the Express Entry Pool

The last round of ITAs before the effective date of the 2016 Amendments took place on November 16, 2016.  A total of 2,427 ITAs were issued; the CRS score of the lowest ranked candidate who received an ITA was 470 points.  These candidates will continue to be assessed under the prior Express Entry System.

The CRS scores of candidates who were already in the Express Entry Pool prior to November 19, 2016, will be automatically updated to reflect the 2016 Amendments before the next round of ITAs takes place.  However, these candidates will still need to update their Express Entry profiles and answer new questions before additional CRS points will be awarded for Canadian study credentials or for having a qualifying offer of arranged employment.

Introduction

The number of dual citizens who renounce their United States citizenship has risen almost every year since the enactment of the Foreign Account Tax Compliance Act (“FATCA”) on March 18, 2010.  FATCA requires foreign financial institutions to report on the non-U.S. financial accounts of United States citizens; this allows the Internal Revenue Service (“IRS”) to identify U.S. citizens who have not reported their overseas assets.

In 2010, the number of U.S. citizenship renunciations was 1,534; in 2015, it rose to 4,279.  This number has continued to rise despite the increased fee for renunciation of United States citizenship (from $450.00 USD to $2,350.00 USD), which the U.S. Department of State (“DOS”) imposed on September 12, 2014 (the official notice erroneously stated that the higher fee would apply on September 6, 2014).  Obviously, not all of these renunciations were caused by FATCA.  However, it is likely that a significant number of cases were motivated by it.

The original purpose of FATCA was to identify unreported overseas financial accounts held by domestic U.S. taxpayers.  However, it has also adversely affected other groups of individuals, including:

• Persons who were born in the United States but who have spent most of their lives residing abroad; and
• Persons who may have unknowingly acquired United States citizenship by law (such as birth abroad to a United States citizen parent).

Many of these individuals have never filed a U.S. tax return, although they may be legally required to do so.  FATCA makes it easier for the IRS to identify these “accidental Americans” (at least those who come to the attention of foreign financial institutions) and take enforcement action against them.

As a result of FATCA, many U.S. citizens are now seeking tax advice from a U.S. Certified Public Accountant (“U.S. CPA”).  Although it is important for U.S. citizens to consult with a qualified U.S. CPA in order to determine the tax implications of a loss of United States citizenship, it is equally important to consult with a qualified U.S. lawyer on the potential immigration implications.

Relinquishment v. Renunciation

Relinquishment is a general term, which refers to a voluntary loss of United States citizenship, through the commission of one of the expatriating acts described in §349(a) of the Immigration and Nationality Act (“INA”).  A formal renunciation at a U.S. consular post is listed in INA §349(a) as an expatriating act but it is only one of many possible ways that a U.S. citizen can lose their citizenship.

In some cases, it is possible to argue that a U.S. citizen has already lost United States citizenship many years ago, through the commission of an expatriating act other than renunciation.  Although it is not always possible to argue prior relinquishment of United States citizenship, it is the preferred option.  There are two reasons for this:

• An individual who successfully establishes that he or she relinquished United States citizenship many years ago (through some means other than renunciation) should be relieved of U.S. tax obligations in the subsequent years.
• An individual who has automatically relinquished United States citizenship (through some means other than renunciation) will avoid the potential immigration consequences that may arise in a formal renunciation case.

Requirements for Relinquishment of United States Citizenship

According to INA §349(a), a U.S. citizen will lose his or her nationality by voluntarily performing any of the listed expatriating acts with the intention of relinquishing United States nationality.  The full list appears here but the most commonly encountered expatriating acts are:

• Obtaining naturalization in a foreign country on or after the age of eighteen;
• Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign country on or after the age of eighteen;
• Serving in the armed forces of a foreign country if: (1) those armed forces are engaged in hostilities against the United States; or (2) he or she serves as a commissioned or non-commissioned officer;
• Accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign country on or after the age of eighteen: (1) if he or she acquires the nationality of that foreign country, or (2) a declaration of allegiance is required for the office, post, or employment; or
• Making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign country.

In order for a loss of U.S. citizenship to occur, the individual must have voluntarily performed one of the expatriating acts.  In addition, the expatriating act must also have been performed with the express intention of relinquishing United States citizenship.

According to INA §349(b), whenever loss of United States citizenship is at issue, the burden of proof falls on the party claiming that the loss occurred, by a preponderance of evidence.  In the words, if an individual wishes to establish a prior relinquishment of United States citizenship, he or she needs to present sufficient documentation to evidence that loss.

INA §349(b) states that a person who performs one of the expatriating acts described in INA §349(a) is presumed to have done so voluntarily, although this presumption may be rebutted by sufficient evidence.  For example, there will be no loss of United States citizenship where the U.S. citizen can establish that he or she performed the expatriating act under circumstances involving duress, mistake, or incapacity.

Not only must the U.S. citizen have performed an expatriating act voluntarily, but he or she must also have intended to relinquish United States citizenship as a result of the expatriating act.  The intention to relinquish United States citizenship is clear in the case of a formal renunciation but it is less certain when other expatriating acts are performed.

The presumption described in INA §349(b) applies only to the voluntariness of the expatriating act itself and not to the intention to relinquish United States citizenship.  However, DOS applies a uniform administrative standard of evidence, which presumes that U.S. citizens intend to retain their citizenship when they:

• Obtain naturalization in a foreign state;
• Declare their allegiance to a foreign state;
• Serve in the armed forces of a foreign state not engaged in hostilities with the United States; or
• Accept non-policy level employment with a foreign government.

In other words, DOS will normally presume that there is no loss of citizenship when these specific expatriating acts are performed.  However, this presumption may still be rebutted by an individual who wishes to demonstrate that he or she intended to relinquish United States citizenship.  For example, an individual could establish their intention to relinquish United States citizenship by documenting:

• The basis for their reasonable belief that, by performing the expatriating act, they would lose their United States citizenship (i.e. they were mistakenly told by a lawyer that this would occur); and
• Their honest belief that they actually lost their United States citizenship after performing the expatriating act (i.e. they stopped using their U.S. Passport, voting in U.S. elections, and did not act in a manner consistent with someone who had retained United States citizenship).

Dual citizens who were born in the United States and who naturalized as Canadian citizens prior to 1973 should have a much easier time demonstrating that they intended to renounce their United States citizenship.  This is because, until 1973, the Canadian oath of naturalization contained language specifically stating that the applicant was relinquishing all prior citizenships.  Although this would not be considered a formal renunciation under INA §349(a), the language of the oath would still be considered compelling evidence of the individual’s intention to relinquish United States citizenship.

In Ulin v. Canada, a 1973 decision of the Federal Court of Canada, the renunciatory language contained in the oath of naturalization was found to be unconstitutional.  After this decision, the renunciatory language was removed from the oath of naturalization.  Therefore, cases involving a Canadian oath of naturalization taken after 1973 cannot rely on the language of the oath itself in order to demonstrate an intention to relinquish United States citizenship.  However, as mentioned above, it is still possible to demonstrate this intention, through the submission of other evidence.

Renunciation of United States Citizenship

If it is not possible to argue a prior relinquishment of United States citizenship, a formal renunciation before a U.S. consular officer may be considered.  Adult United States citizens have the right to formally renounce their citizenship as long as they have a proper understanding of the consequences of renunciation and they make the decision to do so voluntarily.

Unfortunately, a formal renunciation does not protect the United States citizen from prior U.S. income tax obligations, which makes it a less desirable option than arguing a prior relinquishment of citizenship.  There are also a few negative consequences that may occur in the case of a formal renunciation.

According to INA §212(a)(10)(E), a United States citizen who officially renounces United States citizenship and who is determined by the U.S. Department of Homeland Security to have done so for the purpose of avoiding U.S. tax is inadmissible to the United States.  Therefore, it is theoretically possible for former U.S. citizens to be barred from the United States because they renounced United States citizenship.  However, it must be determined that they did so with the intention of avoiding U.S. tax obligations, which can be difficult to prove.

To the best of the author’s knowledge, no one has been barred from the United States under INA §212(a)(10)(E).  However, there is no way to be sure that the United States Government won’t enforce INA §212(a)(10)(E) more strictly in the future.  So a U.S. citizen who formally renounces United States citizenship now could find herself barred decades after the renunciation took place.

To protect against the INA §212(a)(10)(E), the author typically submits a sworn statement at the time of the renunciation, describing the non-tax reasons why the applicant has decided to renounce her United States citizenship.  A sworn statement made at the time of the renunciation should carry considerable weight if the former citizen’s intention is brought into question at some point in the future.

As a result of the Brady Handgun Violence Prevention Act, it is unlawful to sell firearms to persons for whom a finding of loss of nationality due to renunciation has been made.  In other words, a former U.S. citizen who formally renounces United States citizenship cannot purchase a firearm in the United States.  Of course, this will not be a significant issue for most applicants.

Also, as a result of the USA PATRIOT Act and the Safe Explosives Act, a former U.S. citizen who formally renounces United States citizenship cannot obtain a hazardous materials endorsement for a U.S. commercial driver’s license.  Again, this will not be a significant issue for most applicants.

The Process for Relinquishing/Renouncing United States Citizenship at a Consular Post

A dual citizen who wishes to formally relinquish or renounce their United States citizenship before a U.S. consular officer must request a special appointment with the American Citizenship Services Section at a U.S. consular post.  Certain forms and documents must accompany the appointment request.

Unfortunately, there is a very long wait for these appointments, since relinquishments and renunciations are considered low priority cases.  U.S. consular posts in Canada typically schedule these special appointments many months into the future.

At the appointment, if the U.S. citizen wishes to argue a prior relinquishment of United States citizenship, she may present her evidence at that time.  On the other hand, if the U.S. citizen wishes to renounce United States citizenship, she will be interviewed by a consular officer to verify that she understands the consequences of the renunciation and is proceeding voluntarily.

According to the Foreign Affairs Manual, consular officers should schedule a second appointment for the actual oath of renunciation, presumably to allow the proposed renunciant to further reflect on their decision.  However, in practice, the U.S. consular posts in Canada typically interview the applicant and administer the oath of renunciation during the same appointment.

As mentioned above, DOS increased the fee for renouncing United States citizenship from $450.00 USD to $2,350.00 USD on September 12, 2014.  DOS also began charging the $2,350.00 USD fee for claims of prior relinquishment of citizenship on November 9, 2015.

U.S. consular officers do not have the authority to approve a request for a Certificate of Loss of Nationality (“CLN”).  The final decision is made by the Office of American Citizen Services and Crisis Management in the Directorate of Overseas Citizens Services, Bureau of Consular Affairs of the Department of State.

Once this final approval is given, a CLN will be issued to the former U.S. citizen.  If the loss of United States citizenship is based on a prior expatriating act, the CLN will be effective as of the date of that prior act.  If it is based on a formal renunciation, the CLN will be effective as of the date of the oath of renunciation.

Conclusion

Since the loss of United States citizenship can result in both immigration and tax consequences, U.S. citizens should seek professional advice from a qualified U.S. immigration lawyer and U.S. CPA prior to taking any formal action.

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.

Note: Since this post was first published, the Government of Canada extended the leniency period until November 8, 2016.  An eTA is required for all temporary residents (except United States citizens) travelling to Canada by air as of November 9, 2016.

I previously reported that Immigration, Refugees, and Citizenship Canada (“IRCC”), formerly known as Citizenship and Immigration Canada, had published regulations implementing its Electronic Travel Authorization (“eTA”) program.  The eTA program requires visa-exempt persons who were entering Canada as temporary residents (i.e. visitors, students, workers) to register in advance for an eTA.  It is similar to the ESTA program implemented by United States Customs and Border Protection, which is required for foreign nationals entering the United States under the Visa Waiver Program.

The regulations initially required eTAs to be mandatory as of March 15, 2016.  However, the new Liberal Government decided to delay the enforcement of the eTA requirement by implementing a “leniency period.”

At the time, the no fixed termination date was announced for the leniency period; the official notices merely stated that the leniency period would end sometime in the Fall of 2016.  IRCC has now announced that the leniency period will end on September 29, 2016.  After this date, visa exempt temporary residents will require an eTA if they intend to enter or re-enter Canada by air.

Temporary residents who obtained a study or work permit on or after August 1, 2015, were automatically issued an eTA at the time.  No further action is required in such cases as long as the temporary resident travels to Canada using the same passport that they used to apply for their study or work permit.  However, temporary residents who obtained a study or work permit on or before July 31, 2015, will need to apply for an eTA if they wish to enter or re-enter Canada by air.

Further information on the eTA program appears at the IRCC website.

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.

On May 9, 2016, the Ontario Immigrant Nominee Program (“OINP”) announced that the Province of Ontario had received a sufficient number of OINP applications to meet its 2016 federal allocation.  As a result, it has placed a temporary pause on the intake of applications under what it refers to as “select, high-volume” OINP streams.  However, it claims that other lower-volume OINP streams continue to be available.

The OINP announcement confirms the following facts:

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.