On August 23, 2010, the Alberta Immigrant Nominee Program (“AINP”) announced that, in response to current job market conditions, it is no longer accepting applications for two immigration streams. Effective immediately, the AINP will not accept new applications in the Family Stream and the U.S. Visa Holder Category. This change is temporary but will be effective until further notice.

“Our focus needs to be on jobs for Albertans and Canadians first,” said Thomas Lukaszuk, Minister of Employment and Immigration. “We will continue to process applications for people who have the skills our growing economy needs.”

The federal government limits the number of people Alberta can nominate for permanent residence. In 2010 Alberta is allowed to nominate 5,000 people. With limited numbers, Alberta’s focus will be on nominating people who currently work in permanent jobs and those who have job offers in occupations that are in demand in Alberta.

The official news release appears here.

On August 4, 2010, the Governor General in Council published amendments (the “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 fulfill; 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 that are offered to the foreign national.

Ban on Employers Who Failed 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 in an occupation 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 affected the employer, provided that the measures were 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 provided compensation or made 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 provided compensation or made 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 a list of banned employers on its website, 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 (4 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, 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 status quo will be maintained at least until April 1, 2011.

I previously reported that Citizenship and Immigration Canada (”CIC”) had published Ministerial Instructions, which affected the Federal Skilled Worker Class. These Ministerial Instructions imposed a mandatory language proficiency assessment on all Federal Skilled Worker cases, even those submitted by native English or French speakers and even where they did not require language points to qualify.

I also previously reported that, following the issuance of these Ministerial Instructions, CIC also revised its IMM 5612 Document Checklist, which is used for the initial filing of Federal Skilled Worker applications with the Central Intake Office (”CIO”). The language proficiency assessment was an expected addition to IMM 5612. However, what was not expected was the requirement that applicants also submit all documents listed on the specific visa office document checklist applicable to the consular post where the application will be processed.

Based on the current IMM 5612, the applicant must now submit a complete application, including all supporting documentation at the time of the initial filing with the CIO. This had the potential for causing considerable delays since documents such as police certificates could take months to obtain. Fortunately, CIC has now clarified that, as police certificates are related to admissibility rather than eligibility, applicants will not be required to provide them when they submit their application to the CIO.

Another serious question that arose from the current IMM 5612 was whether the CIO would forward the supporting documents to the consular post after it had done its initial screening. Prior to this change, the CIO did not forward the application forms to the consular post; it simply entered information contained in the forms into CIC’s database. CIC has now also clarified that documents must only be submitted once and that they will be forwarded to the consular post once the initial screening has been completed.

In the past, the Citizenship and Immigration Canada (“CIC”) Case Processing Center in Vegreville, Alberta (“CPC-V”), would accept a work permit extension application where a labour market opinion (“LMO”) application had been filed with Human Resources and Skills Development Canada (”HRSDC”), even if it was still pending at the time of filing.

CIC would accept the work permit application without the approved LMO. When it was ready to adjudicate the extension application (several months later), if the approved LMO was not included in the file, the work permit extension would be denied on that basis. However, if the LMO was approved in the interim, the employer could forward it to CIC before the adjudication of the work permit extension took place and the extension would be approved.

This permitted foreign nationals to benefit from implied status even if their existing work permits expired prior to the approval of their new LMOs. Assuming that the work permit extension application was filed prior to the expiration of the foreign national’s work permit, he or she would be entitled to implied status under Subsection 183(5) of the Immigration and Refugee Protection Regulations and could continue to work until the application was adjudicated.

However, in July 2010, CIC posted a notice on its website indicating that “concurrent filing” would no longer be permitted. The notice stated the following:

“If you are applying for a work permit for a job that requires an LMO, you must now include the valid LMO with your application. We are no longer accepting work permit applications without valid LMOs.”

The potential implications of this notice were considerable. Given the fact that HRSDC has been taking a strict approach to LMO applications, frequently requiring employers to repeat recruitment efforts in the case of minor irregularities, the inability of foreign nationals to acquire implied status while their LMO applications were pending could have created significant gaps in their employment authorizations.

In response to concerns raised by the Canadian Bar Association National Citizenship and Immigration Section, CIC has provided further clarification of this notice. It has now clarified that, although it may not be departmental policy to allow for concurrent processing of a work permit and LMO, CIC does have a procedure in place for when an applicant has already applied for the LMO, but has not yet received it, and his or her status will expire shortly.

To prevent the client from falling out of status, CPC-V previously agreed to accept the work permit application with proof that the client already applied for the LMO. CIC now states that this will continue because it does not consider this to be “concurrent processing.”

When CIC refers to “concurrent processing,” it is apparently referring to the situation where the work permit and LMO applications are submitted at the same time. In the situation described above, the LMO application has already been filed, even though it is still pending. When the work permit application is filed with evidence of the pending LMO application, the above procedure will continue to apply.

Although somewhat contrived, CIC’s recent clarification is good news for temporary foreign workers who require an LMO. Applicants who file their work permit extension applications with proof of their pending LMO applications will continue to benefit from implied status; CPC-V will not summarily reject these applications.

On May 25, 2010, we previously reported that the Simplified Entry Process for Information Technology Specialists (the “IT Worker Program”) would end on September 30, 2010. On August 5, 2010, Citizenship and Immigration Canada issued Operational Bulletin 225, which provided modified processing instructions for IT Worker Program cases filed prior to October 1, 2010.

According to Operational Bulletin 225, requests for an extension of a work permit or a new work permit application that has been filed prior to October 1, 2010, if approved, will be granted for a maximum duration of one year from the date of issuance of the work permit. Applications filed on or after October 1, 2010, will require a labour market opinion.

Operational Bulletin 225 is available here.

I previously reported that Citizenship and Immigration Canada (“CIC”) had published Ministerial Instructions, which affected the Federal Skilled Worker Class. These Ministerial Instructions imposed a mandatory language proficiency assessment on all Federal Skilled Worker cases, even those submitted by native English or French speakers and even where they did not require language points to qualify.

Following the issuance of these Ministerial Instructions, CIC also revised its IMM 5612 Document Checklist, which is used for the initial filing of Federal Skilled Worker applications with the Central Intake Office (“CIO”). The language proficiency assessment was an expected addition to IMM 5612. However, what was not expected is the requirement that applicants also submit all documents listed on the specific visa office document checklist applicable to the consular post where the application will be processed.

Prior to this change, the CIO did not require supporting documentation with the initial filing. Instead, applicants submitted a simplified application consisting primarily of relevant forms and the filing fee, without any supporting documentation. Once the CIO had screened the application and forwarded the case to the consular post, the applicant would be expected to provide any relevant supporting documentation to the post directly.

Based on the current IMM 5612, the applicant must now submit a complete application, including all supporting documentation at the time of the initial filing with the CIO. This can cause considerable delays since documents such as police clearance certificates can take months to obtain from certain countries.

Another more serious question is whether the CIO will forward the supporting documents to the consular post after it has done the initial screening. Prior to this change, the CIO did not forward the application forms to the consular post. It simply entered information contained in the forms into CIC’s database. If all supporting documentation must now be filed initially with the CIO, it is uncertain whether these documents will now be forwarded to the consular post once CIO has screened the application.

On June 26, 2010, Citizenship, Immigration and Multiculturalism Minister Jason Kenney told a news conference that Canada is adjusting its 2010 immigration plan to put even greater emphasis on economic recovery and further reduce the federal skilled worker backlog. “When I met with my provincial colleagues last week, they all stressed the importance of economic immigration,” Minister Kenney said. “As we recover from the recession, increasing economic immigration will help ensure employers have the workers they need to supplement our domestic labour supply.”

Each year, Citizenship and Immigration Canada (“CIC”) sets out a plan for the number of immigrants it intends to welcome within economic, family and humanitarian immigration categories. The planned range for 2010 is 240,000 – 265,000 immigrants. CIC generally achieves the midpoint of this range. In 2010, CIC anticipates achieving the upper end of this range, allowing Canada to welcome more immigrants in the economic category than originally planned. This includes federal skilled workers and record-level numbers of provincial nominees, without reducing the number in the family or humanitarian immigration categories.

Minister Kenney noted that some of his provincial colleagues expect the need will grow further in the years ahead. “This is something we will need to take into consideration when we consult more broadly on plans for future years,” he said.

Even with higher numbers of economic immigrants, Canada still receives many more applications than can be processed in a timely way. As a result, the department is limiting the number of new applications it will consider in the federal skilled worker category every year.

“Canada will continue to welcome historically high numbers of immigrants, but we need to manage the number of new applications or risk creating new backlogs and longer processing times,” Minister Kenney said. “We have more than enough applications on hand now to fill many of our needs, and we want to be fair to those people who have been waiting the longest.”

Effective immediately, to be eligible to apply as a federal skilled worker, applicants must either have a job offer, or they must have experience in one of 29 in-demand occupations. These occupations were identified through analysis of updated labour market information and consultations with provinces, territories, stakeholders and the public.

For those applying under the occupation list, the government will limit the number of applications considered for processing to 20,000 per year as a way to better manage the supply of applications with labour market demand. Within the 20,000 limit, a maximum of 1,000 applications per occupation will be considered. The limit does not apply to applicants with a job offer.

In addition, all federal skilled worker and Canadian Experience Class applicants must submit the results of an independent language test before they will be considered.

Other than the language test result requirement, these changes apply only to the federal skilled worker immigration category. The authority for the changes, known as ministerial instructions, comes from amendments to the Immigration and Refugee Protection Act approved by Parliament in 2008 as part of the Action Plan for Faster Immigration.

The instructions are meant as a flexible tool to allow the government to keep the intake of applications for economic immigration in line with the number and types of jobs available in Canada, as well as reduce application backlogs and processing times.

Since the first instructions were issued in November 2008, the backlog of federal skilled worker applicants in process prior to the legislation has dropped from 640,000 to 380,000. The majority of decisions on new applications are being made in six to 12 months, compared with up to six years prior to the changes. But in the first quarter of 2010, the number of new applications rose significantly beyond the department’s ability to process them in a timely way, leading to the recognition that a more refined approach is necessary.

“These changes bring Canada in line with the practices of the United Kingdom, Australia and New Zealand, our main competitors for skilled immigrants,” said Minister Kenney. “They help match the supply of applicants to our processing capacity and today’s post-recession job market needs. This is the only responsible way to manage our immigration system.”

The Government is also proposing new eligibility criteria for the immigrant investor program so it makes an even greater contribution to the Canadian economy. Proposed regulatory changes will require new investors to have a personal net worth of $1.6M, up from $800,000, and make an investment of $800,000, up from $400,000. These proposals were pre-published today in the Canada Gazette for a 30-day public comment period.

Canada’s current criteria for investors are the lowest in the world, and have not been changed since 1999. As a result the program draws a larger number of applicants than can be admitted every year under the immigration plan, and processing times are increasing.

Until the changes are finalized, the Government will stop accepting new investor applications to prevent a flood of applications before the new criteria take effect, which would stretch processing times even further. When the new criteria are in place, new applications will be processed alongside the old ones. In this way, Canada can begin to realize the benefits of the changes immediately.

“Canada needs investor immigrants,” said Minister Kenney. “These changes are necessary to keep Canada’s program competitive with that of other countries, and keep pace with the changing economy.”

A link to the official press release from CIC appears here.

On June 26, 2010, Citizenship and Immigration Canada (“CIC”) published Ministerial Instructions (the “Instructions”), which affect the Canadian Experience Class (“CEC”). According to the Instructions, CEC applications received by CIC on or after June 26, 2010, must be accompanied by the results of the principal applicant’s English or French proficiency assessment. Only test results from a third party language testing agency designated by the Minister of Citizenship, Immigration and Multiculturalism will be accepted.

On June 26, 2010, Citizenship and Immigration Canada (“CIC”) published revised Ministerial Instructions (the “Instructions”), which affect the Federal Skilled Worker (“FSW”) Program.

Annual Cap Imposed on Certain FSW Cases

According to the Instructions, a maximum of 20,000 FSW applications filed without an offer of arranged employment will be considered for processing each year. Within the 20,000 cap, a maximum of 1,000 FSW applications per National Occupational Classification (“NOC”) code will be considered for processing each year.

In calculating the caps, the applications will be considered in order of the date that they are received. In addition, for the unique purpose of calculating the caps, the first year will begin in June 26, 2010, and end on June 30, 2011. Subsequent years will be calculated from July 1 to June 30, unless otherwise modified in a future Ministerial Instruction.

Language Proficiency Assessment Required

According to the Instructions, all FSW applications received by the Central Intake Office in Sydney, NS, on or after June 26, 2010 must be accompanied by the results of the principal applicant’s English or French language proficiency assessment. Only test results from a third party language testing agency designated by the Minister of Citizenship, Immigration and Multiculturalism will be accepted.

Revised Restrictions on Who May Apply under the FSW Program

On or after June 26, 2010, only the following applications will be accepted under the FSW:

1. Applications submitted with an Arranged Employment Offer (“AEO”) consistent with the requirements of Subsection 82(2) of the Immigration and Refugee Protection Regulations (“IRPR”); or
2. Applications from skilled workers with evidence of experience in the last 10 years under one or more of the following NOC codes:
   • 0631 Restaurant and Food Service Managers
   • 0811 Primary Production Managers (Except Agriculture)
   • 1122 Professional Occupations in Business Services to Management
   • 1233 Insurance Adjusters and Claims Examiners
   • 2121 Biologists and Related Scientists
   • 2151 Architects
   • 3111 Specialist Physicians
   • 3112 General Practitioners and Family Physicians
   • 3113 Dentists
   • 3131 Pharmacists
   • 3142 Physiotherapists
   • 3152 Registered Nurses
   • 3215 Medical Radiation Technologists
   • 3222 Dental Hygienists & Dental Therapists
   • 3233 Licensed Practical Nurses
   • 4151 Psychologists
   • 4152 Social Workers
   • 6241 Chefs
   • 6242 Cooks
   • 7215 Contractors and Supervisors, Carpentry Trades
   • 7216 Contractors and Supervisors, Mechanic Trades
   • 7241 Electricians (Except Industrial & Power System)
   • 7242 Industrial Electricians
   • 7251 Plumbers
   • 7265 Welders & Related Machine Operators
   • 7312 Heavy-Duty Equipment Mechanics
   • 7371 Crane Operators
   • 7372 Drillers & Blasters — Surface Mining, Quarrying & Construction
   • 8222 Supervisors, Oil and Gas Drilling and Service

No H&C Requests to Overcome Requirement of Ministerial Instructions

Requests made on the basis of Humanitarian and Compassionate grounds that accompany a FSW application not identified for processing under the Instructions will not be processed.

On June 26, 2010, Citizenship and Immigration Canada (“CIC”) published proposed regulations in the Canada Gazette, which will increase the personal net worth and investment amounts utilized by the Canadian Federal Immigrant Investor Program (the “Program”). Under the proposed regulations, the investment required under the Program will increase from $400,000.00CAD to $800,000.00CAD. In addition, the personal net worth required to qualify under the Program will increase from $800,000.00CAD to $1.6 Million CAD. Once the comment period has ended, the final regulations will be published and these higher investment and personal net worth amounts will become effective.

CIC has also published Ministerial Instructions in the Canada Gazette, which will create an “administrative pause” from June 26, 2010 until the date that the final regulations become effective. According to the Ministerial Instructions, no applications under the Program will be accepted unless they are post-marked or received by CIC before June 26, 2010. No subsequent applications will be accepted until the final regulations become effective. The objective of this “administrative pause” is to mitigate the growing surge in such applications under the current 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. Due to increasing global wealth, a net worth of $800,000 is 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 states that most other countries with similar programs now require an investment closer to $1 Million CAD. It therefore feels that the Program has become underpriced on the international market. CIC wishes to increase the investment amount to $800,000.00CAD for this reason.

CIC has indicated that the current net economic benefit to Canada from each investment made under the program is only $59,229.00CAD due to the requirement to repay the investment after five years. It estimates that, under the new investment level, the net economic benefit to Canada will increase to approximately $89,000.00CAD.