On November 10, 2010, Citizenship and Immigration Canada (“CIC”) published regulations in the Canada Gazette, which reinstate the Canadian Federal Immigrant Investor Program (“IIP”). These regulations come into force on December 1, 2010.

On June 26, 2010, CIC published proposed regulations in the Canada Gazette, which would increase the personal net worth and investment amounts utilized by the IIP. Under the proposed regulations, the investment required under the IIP would increase from $400,000.00CAD to $800,000.00CAD. In addition, the personal net worth required to qualify under the IIP would increase from $800,000.00CAD to $1.6 Million CAD.

CIC also published Ministerial Instructions in the Canada Gazette, which established a moratorium on new IIP applications from June 26, 2010, until the date that the final regulations became effective. According to the Ministerial Instructions, no applications under the program were to be accepted unless they were post-marked or received by CIC before June 26, 2010. The stated purpose of the moratorium was to mitigate the growing surge in such applications under the lower investment and personal net worth levels.

According to CIC, a net worth of $800,000CAD in 1999 was considered substantial enough to attract applicants with the financial wherewithal and expertise to make a significant positive economic contribution to Canada. However, due to increasing global wealth, CIC believed that a net worth of $800,000 was now within easy reach of a modest property owner in a large city, who may not have other transferable resources as originally envisioned. In addition, CIC stated that most other countries with similar programs now required an investment closer to $1 Million CAD.

The new regulations, which were published on November 10, 2010, reinstate the IIP and implement the higher investment and net worth levels that were initially announced on June 26, 2010. As of December 1, 2010, applicants under the IIP are required to invest $800,000CAD and to establish a personal net worth of $1.6 Million CAD.

On August 4, 2010, the governor-general-in-council published amendments to the Immigration and Refugee Protection Regulations (IRPR), which will adversely affect many temporary foreign workers (TFWs). Although the amendments do not come into force until April 1, 2011, the changes are significant. An overview of these amendments is provided below.

Assessment of employment offered [R200(5)]

The amendments establish specific factors to assess the genuineness of the employer’s offer of employment to a TFW, both in Labour Market Opinion (LMO) cases and in LMO-exempt cases. These factors include:

1. Whether the offer is made by an employer that is actively engaged in the business in respect to which the offer is made (except in the case of live-in caregivers, who are typically employed by households instead of businesses);
2. Whether the offer is consistent with reasonable employment needs of the employer;
3. Whether the terms of the offer are terms that the employer is reasonably able to fulfil; and
4. The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

Additional employer-related requirements for live-in caregivers [R203(1)(d)]

In the case of a live-in caregiver, an immigration officer must determine, on the basis of an LMO provided by Human Resources and Skills Development Canada (HRSDC), if:

1. The foreign national will reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in a household without supervision;
2. The employer will provide adequate furnished and private accommodations in the household; and
3. The employer has sufficient financial resources to pay the foreign national the wages offered.

Ban on employers who fail to substantially comply with the terms of a previous LMO [R200(1)(c)(ii.1)(B) and R203(1)(e)]

The amendments make an employer ineligible to seek a work permit on behalf of a TFW unless, during the period beginning two years before the initial request for an LMO is made to HRSDC or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (CIC) or the Canadian Border Services Agency (CBSA):

1. The employer provided each of its foreign workers with wages, working conditions and employment that were substantially the same as the wages, working conditions, and occupation set out in the employer’s offer of employment; or
2. The failure to do so was justified in accordance with R203(1.1).

The permitted justifications described in R203(1.1) include:

1. A change in federal or provincial law;
2. A change to the provisions of a collective agreement;
3. The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affect the employer, provided that the measures are not directed disproportionately at foreign nationals employed by the employer;
4. An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provides compensation or makes sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
5. An unintentional accounting or administrative error made by the employer, if the employer subsequently provides compensation or makes sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
6. Circumstances similar to those set out above.

The assessment is undertaken at the time that a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA.

Published list of banned employers [R203(6)]

The amendments provide that CIC must maintain on its website a list of banned employers, stating the names and addresses of each employer and the date that the determination was made. HRSDC will not issue an LMO, and CIC/CBSA will not issue a work permit, for any banned employer.

Temporary foreign workers limited to four years [R200(3)(g)]

The amendments provide for a cumulative four-year cap on TFWs until a period of 48 months (four years) has elapsed. However, exemptions from the four-year cap exist in the following situations:

1. The foreign national intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions such as significant benefit to Canada (C10) and intracompany transferee (C12), among others, will be exempt from the four-year cap.
2. The foreign national intends to perform work pursuant to an international agreement between Canada and one or more countries, including an agreement concerning seasonal agricultural workers. Therefore, work permits issued in accordance with international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, and the Canada-Chile Free Trade Agreement, among others, will be exempt from the four-year cap.

Fortunately, a TFW who has reached the four-year cap is not required to leave Canada; they just may not obtain a work permit during the subsequent 48-month period. In other words, the foreign national could obtain a study permit, attend school for 48 months, for example, and then once again become eligible for a work permit.

LMOs to indicate period of validity [R203(3.1)]

The amendments provide that LMOs shall indicate the period during which the opinion is in effect. If the TFW does not obtain a work permit within the time period, the employer must request a new LMO from HRSDC.

HRSDC’s current policy is that all LMOs expire six months after issuance. It is unknown whether this validity period will continue once the amendments come into force.

Conclusion

Clearly, the amendments will have a dramatic and undesirable effect on most TFWs. The only positive news is that the status quo will be maintained at least until April 1, 2011.

On September 1, 2010, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 230, which announces a new exemption from the Labour Market Opinion (“LMO”) requirement for foreign medical residents and medical research fellowship holders. This new exemption falls under Paragraph 205(c)(ii) of the Immigration and Refugee Protection Regulations.

Foreign medical residents are holders of a medical degree equivalent to that of a Canadian Medical Doctorate (MD) who are coming to Canada to complete a residency at a Canadian hospital or in a clinical setting as part of their medical training. These positions have a duration of approximately 2–7 years or more depending on the area of medical specialization. Positions occupied by these foreign nationals are non-ministry (not publicly) funded places that have been created by Canadian medical faculties with financial support from the country sponsoring the training of the foreign resident.

Foreign medical fellowship holders are holders of a medical degree equivalent to that of a Canadian Medical Doctorate (MD), and recognized medical specialists who have completed residency training and accept to continue specializing in some highly specific field of study to advance clinical or medical research. Foreign medical fellows doing clinical work/research are typically performing very specific clinical/research work for a one or two year period, in a hospital, clinical or research setting. Although in some provinces fellows have no patient contact. Regardless of whether contact with patients occurs, fellows, like all residents, are required to pass an immigration medical exam according to R30.

Foreign medical residents and fellows must present the following documentation when they apply for their work permits (either at a Canadian consulate or at a port of entry):

a) An official letter of employment from the university written on university letterhead and signed by a senior administrator (e.g. the Program Manager) from the Postgraduate Medical Office, detailing: (1) the position being offered including the area of specialty, if applicable; (2) the length of the residency training/fellowship period (number of months) including the beginning and end dates of the residency or fellowship period; (3) the work location(s) for the duration of residency/fellowship; (4) the annual income offered to the foreign national with an attestation that the wage is commensurate with that of a Canadian performing the same duties in the same location of work; (5) whether the position is covered by a collective agreement; and (6) whether the physician must be licensed by the provincial College of Physicians and Surgeons in order to undergo their residency or fellowship in that province.

b) When applicable, a copy of a letter from the relevant provincial College of Physicians and Surgeons, which confirms in preliminary terms the eligibility of the foreign national for licensure.

On March 27, 2009, Citizenship and Immigration Canada (“CIC”) began testing its Application Form for a Temporary Resident Visa [IMM 5257B Pilot Project] and its accompanying Schedule 1 at select overseas missions. However, this application form could not be saved electronically and the information on the form could not be scanned into existing CIC systems.

As CIC’s Global Case Management System (“GCMS”) is deploying this year to extend case processing capabilities overseas, a new Temporary Resident Visa (“TRV”) application form is being implemented. Bar codes have been created on the TRV application form to facilitate data entry into GCMS.

This new TRV application form is the first electronic application form for overseas applicants which can now be saved electronically by the applicant. Once the new TRV application form has been successfully implemented, the student and worker application forms will be next, followed by other lines of business.

The implementation of this new TRV application form mirrors similar efforts by the U.S. Department of State, which initially implemented a bar-coded Form DS-156 for visa applications. It later implemented a web-based online Form DS-160 to replace Form DS-156, although Form DS-160 continues to suffer from bugs and is frustrating to complete.

Effective October 14, 2010, a new Application for Temporary Resident Visa Made Outside of Canada [IMM 5257] form, the corresponding Instruction Guide [IMM 5256], Family Information [IMM 5645] form, Schedule 1 [IMM 5257-Schedule 1] and Document Checklist [IMM 5484] will be made available to all clients. Each individual applicant must complete and sign the new Application for Temporary Resident Visa Made Outside of Canada [IMM 5257] form. This means that Principal Applicants can no longer complete an application form on behalf of all accompanying family members. Consequently, each applicant aged 18 and over must complete and sign their respective application form (i.e., a family of three will submit three individual forms). Those applicants under the age of 18 must have a parent or a guardian sign on their behalf. All family members must be indicated on the new Family Information [IMM 5645] application form. This form must be completed by all applicants aged 18 and over who are travelling to Canada and who require a TRV.

The new TRV application form must be accessed electronically and applicants can save a partially completed application form. To assist applicants to accurately complete the new IMM 5257, they will be prompted electronically as they complete the new TRV application form.

The new TRV application form facilitates data entry into GCMS by incorporating barcodes which will be generated when applicants complete their form electronically. The barcodes will only appear on the IMM 5257 application form once all required information has been correctly completed and the validate button (located at the top and bottom of the application form) has been pressed. The barcodes, which will print on the last page of the form, will contain all of the data entered by the applicant, and may be scanned for direct upload into GCMS.

On September 30, 2010, regulatory amendments came into force that require applicants to successfully demonstrate a broad knowledge of Canada and of the responsibilities and privileges of citizenship. These updated regulations allow Citizenship and Immigration Canada the flexibility to test applicants on a greater variety of topics included in Discover Canada and provides flexibility in the development of future questions.

With the coming into force of these new regulations, applicants are considered to have an adequate knowledge of Canada if they demonstrate that they know the national symbols of Canada and have a general understanding of the following subjects:

1. The chief characteristics of Canadian political and military history;
2. The chief characteristics of Canadian social and cultural history;
3. The chief characteristics of Canadian physical and political geography;
4. The chief characteristics of the Canadian system of government as a constitutional monarchy; and
5. Characteristics of Canada, other than those referred to above.

Also, applicants are considered to have an adequate knowledge of the responsibilities and privileges of citizenship if they demonstrate they have a general understanding of the following subjects:

1. Participation in the Canadian democratic process;
2. Participation in Canadian society, including volunteerism, respect for the environment and the protection of Canada’s natural, cultural and architectural heritage;
3. Respect for the rights, freedoms and obligations set out in the laws governing Canada; and
4. Any of the responsibilities and privileges of citizenship other than those referred to above.

These regulatory changes promote an enhanced understanding of Canadian identity and values and of the responsibilities of citizenship.

Previously, the citizenship test contained certain mandatory questions which needed to be answered correctly by applicants in order to pass the test. The three mandatory questions tested applicants on the following:

1. The right to vote;
2. The right to run for elected office; and
3. Voting procedures related to elections.

However, because Section 15 of the Citizenship Regulations now specifies that applicants are required to have sufficient knowledge of a broad range of topics, the inclusion of mandatory questions in the citizenship test will no longer be in effect as of October 14, 2010.

On September 1, 2010, Citizenship and Immigration Canada announced revisions to its list of designated countries/territories for the purposes of Section 30 of the Immigration and Refugee Protection Regulations.

According to R30, individuals who are seeking entry into Canada for a period of greater than six months and who have resided or sojourned, at any time during the one year period immediately preceding the date of seeking entry, for six consecutive months in a designated country/territory, are required to undergo an immigration medical examination. In addition, regardless of the intended period of stay in Canada, a foreign national who is seeking to work in Canada in an occupation in which the protection of public health is essential will require a medical examination if they are on the list of designated countries.

A designated country/territory is defined as a country/territory with a three year average estimated sputum smear positive pulmonary tuberculosis (TB) incidence rate equal to or greater than 15/100,000. To be considered for removal from the designated country/territory list, a country or territory must remain below the average threshold for three consecutive years.

The following countries/territories were added to the designated country/territory list: (1) Greenland, (2) Nauru, (3) Tuvalu, and (4) and Wallis Futuna. In addition, the following countries/territories were removed from the designated country/territory list: (1) Ascencion, (2) Austral Islands, (3) Azores, (4) Bahamas, (5) Balearic Islands, (6) Bora Bora, (7) Bulgaria, (8) Canary Islands, (9) Chagos Archipelago, (10) Christmas Island, (11) Croatia, (12) Easter Island, (13) Estonia, (14) French Guiana, (15) Gambier Islands, (16) Huahine, (17) Iran, (18) Johnston Atoll, (19) Kerguelen Islands, (20) Loyalty Islands, (21) Macedonia, (22) Madeira, (23) Makatea, (24) Marquesas Islands, (25) Maupiti, (26) Mauritius, (27) Mexico, (28) Midway Island, (29) Montenegro, (30) New Caledonia, (31) Northern Sinai, (32) Oman, (33) Raiatea, (34) Reunion, (35) Saudi Arabia, (36) Serbia, (37) Singapore, (38) Society Archipelago, (39) St. Helena, (40) Syrian Arab Republic, (41) Tahaa, (42) Tahiti, (43) Tristan Da Cunha, (44) Tuamotu Archipelago, (45) Wake Island, and (46) West Bank and Gaza Strip.

All visitors to Canada require a Temporary Resident Visa (“TRV”), except in such cases as prescribed by the Immigration and Refugee Protection Regulations (“IRPR”). A comprehensive review of the conditions and trends in Taiwan was conducted and information was gathered during a technical visit in 2009. As a result of the positive trends identified in the review, Citizenship and Immigration Canada (“CIC”) has lifted the visa requirement for holders of an ordinary passport issued by the Ministry of Foreign Affairs in Taiwan that includes the personal identification number of the individual.

Effective November 22, 2010, subsection 190(2) of the IRPR was amended to create an exemption from the visa requirement for holders of an ordinary passport issued by the Ministry of Foreign Affairs in Taiwan that includes the personal identification number of the individual. Following the coming into force of the amendment to the regulations, overseas offices will no longer process any TRV applications submitted by holders of an ordinary passport issued by the Ministry of Foreign Affairs in Taiwan that includes the personal identification number of the individual.

Taiwan also issues a return certificate that functions as an emergency passport, similar to the Canadian Emergency Travel Document. CIC is not exempting holders of the return certificate from the visa requirement. Should a person seek to transit or enter Canada with such a document, a TRV is required, unless the holder qualifies and meets the conditions of the Transit Without Visa Program (“TWOV”) or China Transit Trial (“CTT”).

Holders of passports that:

1. Do not contain a personal identification number; or
2. Are not issued by the Ministry of Foreign Affairs in Taiwan

are required to obtain a TRV prior to travelling to Canada, unless they qualify for the TWOV program or CTT pilot. These passports are often referred to as compatriot passports.

Existing permit holders of valid permits who are holders of an ordinary passport issued by the Ministry of Foreign Affairs in Taiwan that includes the personal identification number of the individual should be advised that:

1. If they left Canada and are still holding a valid work or study permit which has been used to enter Canada, they do not need a TRV to return to Canada; or
2. If they are in Canada and holding a valid work or study permit which has been used to enter Canada, they may remain in Canada and continue to work or study according to the validity dates of their permit.

On November 10, 2010, Citizenship and Immigration Canada (“CIC”) published regulations in the Canada Gazette, which reinstate the Canadian Federal Immigrant Investor Program (“IIP”). These regulations came into force on December 1, 2010.

On June 26, 2010, CIC published proposed regulations in the Canada Gazette, which would increase the personal net worth and investment amounts utilized by the IIP. Under the proposed regulations, the investment required under the IIP would increase from $400,000.00CAD to $800,000.00CAD. In addition, the personal net worth required to qualify under the IIP would increase from $800,000.00CAD to $1.6 Million CAD.

CIC also published Ministerial Instructions in the Canada Gazette, which established a moratorium on new IIP applications from June 26, 2010, until the date that the final regulations became effective. According to the Ministerial Instructions, no applications under the program were to be accepted unless they were post-marked or received by CIC before June 26, 2010. The stated purpose of the moratorium was to mitigate the growing surge in such applications under the lower investment and personal net worth levels.

According to CIC, a net worth of $800,000CAD in 1999 was considered substantial enough to attract applicants with the financial wherewithal and expertise to make a significant positive economic contribution to Canada. However, due to increasing global wealth, CIC believed that a net worth of $800,000 was now within easy reach of a modest property owner in a large city, who may not have other transferable resources as originally envisioned. In addition, CIC stated that most other countries with similar programs now required an investment closer to $1 Million CAD.

The new regulations, which were published on November 10, 2010, reinstate the IIP and implement the higher investment and net worth levels that were initially announced on June 26, 2010. As of December 1, 2010, applicants under the IIP are required to invest $800,000CAD and to establish a personal net worth of $1.6 Million CAD.

On June 14, 2010, Opportunities Ontario (Ontario’s Provincial Nominee Program) announced a new pilot program for Ontario graduates holding Masters degrees. International students who have graduated from a publicly funded Ontario university with a Masters degree can now apply for permanent residence without a job offer under the Pilot International Masters Graduate Stream.

In order to apply to Opportunities Ontario as an international Masters graduate in Ontario, students must:

1. Intend to live and work in Ontario;
2. Have graduated from an existing Masters program at an eligible publicly funded university in Ontario;
3. Have completed a minimum of one academic year degree program, while studying on a full-time basis;
4. Apply within two years of the date on which their Masters degree was granted, or in the alternative, during the last semester of completing their degree;
5. Currently be residing in Ontario;
6. Have legal status in Canada (i.e. study permit, work permit, temporary resident visa)
7. Demonstrate high official language proficiency (For English language proficiency – IELTS – General test with a minimum score of 7 or higher) (For French language proficiency – TEF – with a minimum score of 5 or higher);
8. Demonstrate a minimum level of savings/income to support themselves and their dependants; and
9. Demonstrate at least one year of residence in Ontario in the past two years. International students subsidized through the Canadian International Development Agency grants or home country scholarship with return obligations will not be eligible for Opportunities Ontario unless such obligations have been fulfilled.

As of June 14, 2010, international students who graduated or will soon be graduating from a Master’s program from one of Ontario’s publicly funded universities, can now apply to Opportunities Ontario (Ontario’s Provincial Nominee Program) for nomination as a permanent resident, under the International Student Category’s Pilot Master’s Graduate Stream. The student will not require a job offer in order to apply for a nomination.

In order to apply to Opportunities Ontario as an international Master’s graduate in Ontario, students must:

1. Intend to live and work in Ontario;
2. Have graduated from an existing Master’s program at an eligible publicly funded university in Ontario;
3. Have completed a minimum of one academic year degree program, while studying on a full-time basis;
4. Apply within two years of the date on which their Master’s degree was granted, or, during the last semester of completing their degree;
5. Currently be residing in Ontario;
6. Have legal status in Canada (i.e. study permit, work permit, temporary resident visa);
7. Demonstrate high official language proficiency (For English language proficiency – IELTS – General test with a minimum band score of 7 or higher) (For French language proficiency – TEF – with a minimum score of 5 or higher);
8. Demonstrate a minimum level of savings/income to support themselves and their dependants (currently $11,086 for a single person);
9. Demonstrate at least one year of residence in Ontario in the past two years; and
10. Not have return obligations under Canadian International Development Agency grants or home country scholarships.

International students subsidized through the Canadian International Development Agency grants or home country scholarship with return obligations will not be eligible for Opportunities Ontario unless such obligations have been fulfilled.