Introduction

On June 20, 2014, the Jason Kenney, Minister of Employment and Social Development, and Chris Alexander, Minister of Citizenship and Immigration, announced significant changes to Canada’s Temporary Foreign Worker Program.  Prior to these changes, there were essentially two categories of temporary foreign workers – those who required a Labour Market Opinion (“LMO”) and those who were LMO-exempt.  The purpose of the LMO was to assess whether issuance of a work permit to the foreign national would have a neutral or positive effect on the Canadian labour market.

Under the new structure, the LMO will now be replaced by the Labour Market Impact Assessment (“LMIA”).  LMIA-exempt foreign workers will become part of the newly-named International Mobility Program.  As a result, the Temporary Foreign Worker Program will only refer to foreign workers who require an LMIA.

The International Mobility Program

As mentioned above, the International Mobility Program will include foreign workers who are exempt from the requirement of an LMIA.  Changes in the processing of exempt foreign workers are described below.

Requirement to Submit Job Offers Directly to Citizenship and Immigration Canada (“CIC”)

Employers are not currently required to submit any information directly to CIC regarding job offers made to LMIA-exempt foreign workers.  Under the new structure, employers hiring through the International Mobility Program will be required to submit the job offer and other relevant information to CIC.  Foreign nationals will not be able to apply for a work permit until their employer has done so.

New Fee and Employer Compliance System for the International Mobility Program [Implementation: Summer 2015]

The reforms will introduce an enhanced compliance monitoring system for employers who are employing foreign workers through the International Mobility Program.   These compliance systems will be on par with the enforcement improvements being made by Employment and Social Development Canada (“ESDC”) to the Temporary Foreign Worker Program.

This system will be made possible by the collection of a new compliance fee of $230.00CAD per work permit (up from $155.00CAD), which will be imposed in the near future.  This fee will apply in cases where the foreign national is LMIA-exempt and the work permit is tied to a specific employer.

New Privilege Fee for Open Work Permit Applicants [Implementation: Summer 2015]

Some LMIA exemptions allow for foreign nationals to apply for open work permits, which are not tied to a specific employer.  The Canadian Government claims that there is often inadequate information available regarding the types of jobs that open work permit holders take and what effect they may have on the Canadian labour market.

As a result, CIC will imposing a $100 privilege fee on holders of open work permits in the near future.  The privilege fee will allow for improved data collection on the employment of open work permit holders.  In addition, the funds collected will be used to increase awareness and promote the participation of Canadians in opportunities to live and work abroad, and to provide information to foreign nationals with open work permits and their employers, in order to promote their transition to permanent residence.

Changes to Specific Exemptions

The Canadian Government is currently undertaking a comprehensive review of existing LMIA-exempt streams.  Any streams that it finds do not warrant an exemption will be reclassified under the Temporary Foreign Worker Program.

In addition, the Canadian Government is making immediate changes to the following exemptions:

• International Experience Canada (“IEC”) – The IEC consists of thirty-two mobility agreements that allow young Canadians to live and work abroad for up to two years without meeting labour market (and other) requirements, while providing reciprocal opportunities for young people from those countries to work in Canada; the number of spots available for each country is negotiated each year.  However, the Canadian Government is concerned about the imbalance between the number of young people from partner countries participating in the IEC and the number of young Canadians participating abroad.  To remedy this problem, the Canadian Government will increase its promotion of the program to make young Canadians aware of the IEC and work with partner countries to reduce administrative barriers to Canadian participants.  It will also review each agreement to ensure that the rate of reciprocity is improved.
• Intra-Company Transferees (“ICTs”) with Specialized Knowledge [Implementation: Immediate] – The Canadian Government has expressed concern that the ICT exemption applicable to specialized knowledge workers is being abused.  To address this concern, guidelines have been implemented to strictly define the meaning of “specialized knowledge.”  Immigration officers will also be required to compare a foreign worker’s proposed salary to the prevailing Canadian wage for that job, when assessing whether the worker truly possesses specialized knowledge.  In addition, a wage floor has been imposed in any ICT specialized knowledge cases that are not based on an existing or future free trade agreement; this wage floor will be the prevailing wage for the occupation, in the region where the proposed employment will occur.  Please note that CIC previously announced these changes on June 9, 2014.

The Temporary Foreign Worker Program

As mentioned above, the Temporary Foreign Worker Program will now only include foreign workers who require an LMIA.  Changes in the processing of LMIAs are described below.

Use of Wage Instead of National Occupation Codes

Wage levels will now replace the National Occupational Classification (“NOC”) as the main criteria for administering the Temporary Foreign Worker Program.  This is based on CIC’s claim that wages more accurately reflect occupational skill level and local labour market conditions.

Jobs for which proposed wages are below the provincial or territorial median wage will be considered “low-wage.”  Similarly, jobs for which proposed wages are at or above the provincial or territorial median will be considered “high-wage.”

New LMIA Process

The old LMO is being replaced by the more rigorous LMIA as the screening mechanism for employers seeking to hire temporary foreign workers.  The following will apply to the new LMIA process:

• Employers will need to provide information on the number of Canadians that applied for a particular job, the number of Canadians that the employer interviewed and an explanation if Canadian applicants were not hired.
• Employers will need to attest they are aware of the rule that Canadians cannot be laid-off or have their hours reduced at a worksite that employs temporary foreign workers.
• New and better sources of labour market information will be used to determine if there are Canadians who could fill these positions.
• ESDC will refuse to process applications if there are concerns that temporary foreign workers may or will have a significant negative effect on the Canadian labour market.

Cap on Low-Wage Temporary Foreign Workers [Implementation: Immediate]

Employers with ten or more employees applying for a new LMIA will be subject to a cap of 10 percent on the proportion of their workforce that can consist of low-wage temporary foreign workers.  This cap will be applied per worksite of an employer and is based on total hours worked at that worksite.

To provide employers who are above the 10% cap sufficient time to transition to the new rules, it will be phased in over the next couple of years.  Effective immediately, if an employer that currently has a low-wage temporary foreign worker workforce exceeding the 10% cap applies for a new LMIA, it will either be limited at 30% or be frozen at its current level, whichever is lower. The transitional cap will be further reduced to 20% beginning July 1, 2015 and reduced again to 10% on July 1, 2016.  The Canadian Government may also consider lowering this cap below 10% in the future.

Refusing Applications in Areas of High Unemployment

Applications for the lowest-wage, lowest-skill, entry-level occupations in the food services, accommodation and retail trade sectors will be barred from the Temporary Foreign Worker Program in areas of high unemployment (6% or higher).  LMIA applications will not be processed if the employer meets all of the following criteria:

• It is applying for an LMIA in a Statistics Canada Economic Region with an annual unemployment rate over 6%;
• It is seeking an LMIA in a specific occupation identified under North American Industry Classification System (“NAICS”) as Accommodations & Food Service or Retail Sales (NAICS 72, 44, 45); and
• It is seeking an LMIA in an occupation in one of the following NOC Skill Level “D” occupations: (1) 6641 (Food Counter Attendants, Kitchen Helpers and Related Occupations), (2) 6661 (Light Duty Cleaners), (3) 6611 (Cashiers), (4) 6622 (Grocery Clerks and Store Shelf Stockers), (5) 7611 (Construction Trades Helpers and Labourers), (6) 8612 (Landscaping and Grounds Maintenance Labourers), (7) 6672 (Other Attendants in Accommodation and Travel), (8) 6663 (Janitors, Caretakers and Building Superintendents), (9) 6662 (Specialized Cleaners), and 6651 (Security Guards and Related Occupations).

Refusal of Pending Applications for Low-Wage Positions [Implementation: Immediate]

ESDC will also refuse to process any pending applications for low-wage positions as of June 20, 2014.  Any pending application that was submitted prior to June 20, 2014, for a position where the prevailing wage is below the provincial or territorial median hourly wage will no longer be processed.  However, this provision is not applicable in the Province of Quebec.

Reducing the Duration of Work Permits [Implementation: Immediate]

Effective immediately, the duration of work permits set out in an LMIA will be limited to a maximum of one year for all low-wage positions, rather than the two-year duration that previously applied.  As a result, employers of low-wage temporary foreign workers will be required to reapply every year for a new LMIA.

Reducing the Cumulative Duration Limit for Low Wage Stream [Implementation: Summer 2015]

The current cumulative duration limit for temporary foreign workers (subject to certain exceptions) is four years.  The Canadian Government intends to reduce how long a temporary foreign worker in the low-wage stream will be able to work in Canada.  However, this measure will not apply to temporary foreign workers currently in Canada on valid work permits.

Changing the Provincial/Territorial Temporary Foreign Worker Annexes

Five provincial/territorial governments (Alberta, British Columbia, Ontario, Nova Scotia and Yukon) currently have annexes to their immigration agreements with the Canadian Government that establish LMIA exemptions in their jurisdiction.  In these cases, the provinces and territories may propose LMIA exemptions for certain occupations and pilot projects involving exemptions to the LMIA process can be initiated.

The Government of Canada has given notice that it is changing these existing agreements.  Any new agreements with provinces and territories will be much more limited in scope.  As a result, more employers will be subject to the LMIA requirement.

Requirement of Transition Plans for High-Wage Positions [Implementation: Immediate]

Employers who want to hire temporary foreign workers in high-wage occupations will be required (with limited exceptions) to submit transition plans with their LMIA application to ensure that they are taking steps to reduce their reliance on temporary foreign workers over time.

The transition plans are in addition to the existing recruitment and advertising requirements that employers must meet to ensure that Canadians are given the first chance at available jobs.  Transition plans will oblige employers of high-wage temporary foreign workers to help Canadians obtain in-demand skills through activities like investing in skills training or taking on more apprentices, or an employer can provide proof that they are helping a high-skilled temporary foreign worker transition to becoming a permanent resident of Canada.

Employers will also be required to undertake additional recruitment activities, including reaching out to organizations serving groups traditionally under‑represented in the workforce (i.e. new immigrants, Aboriginal people, youth, Canadians with disabilities) to fill available jobs.

Employers will be required to report on the success of their transition plan the next time they apply to hire high-wage temporary foreign workers.  Employers must also report on the results of their transition plan if they are selected for an inspection.

Highest-Demand, Highest-Paid and Shortest-Duration Occupations [Implementation: Immediate]

LMIAs for highest-demand occupations (skilled trades), highest-paid (top 10%) occupations or short-duration work periods (120 days or less) will now be provided within a ten-business-day service standard.   However, the LMIA will still be subject to the same rigorous review as a standard LMIA application.

Foreign Pilots in Canada [Implementation: Immediate]

In recent years, concerns have been raised that some airlines are excluding Canadian pilots from seasonal jobs by requiring job applicants to already be trained on specific types of planes (type‑rating) before they are hired.  Effective July 1, 2014, airlines filing an LMIA on behalf of a foreign pilot must:

• Meet the minimum advertising requirements for high-wage occupations;
• Specify the following criteria in their job postings:
  • No more than a maximum of 4,000 flight hours for a First Officer and 5,000 hours for a Captain as required experience;
  • Possess a valid commercial pilot’s licence;
  • Require English and/or French language proficiency;
  • Include industry standard medical testing requirements for commercial flight;
  • State both the legal and common names of the airline operating in Canada;
  • Not include as an essential or asset requirement the necessity of holding a type rating for a specific type of aircraft (although requiring applicants to have experience flying equipment that is similar in configuration and complexity to the airline’s fleet is considered acceptable);
  • Indicate when training bonds will be applied and they must cover a minimum of two years employment;
  • Negotiate a transition plan with ESDC documenting the airline’s future efforts and commitment to decrease the reliance on foreign pilots while increasing its complement of Canadian citizen and permanent resident pilots; and
  • Submit LMIA applications a minimum of three months before the first day of work to ensure that ESDC can thoroughly review the application (any exception to this timeline must be requested prior to the LMIA being submitted).

New Job Matching Service

A new enhanced Job Matching Service will allow Canadians to apply directly through the Canada Job Bank for jobs that match their skills and experience, and provide information to program officers reviewing an employer’s LMIA application on how many qualified Canadians have applied for specific jobs.

Statistics Canada Quarterly Job Vacancy Survey [Implementation: Spring 2015]

To provide better information on job vacancies in Canada, Statistics Canada will conduct a new Quarterly Job Vacancy Survey at a cost of $8 million per year. This survey will collect information on occupations in-demand, job openings, duration of job vacancies, educational requirements for occupations and other pertinent data.

This new Job Vacancy Survey (to be launched in the Spring of 2015) will collect data from up to 100,000 employers compared to 15,000 employers under the current Job Vacancy Survey.  The data will be available at the provincial/territorial level and by Statistics Canada Economic Region.  The current survey provides data only by province/territory.  The new survey will also provide quarterly job vacancy estimates by occupation and skill level required.

Statistics Canada Annual National Wage Survey [Implementation: Spring 2015]

Statistics Canada will conduct a new annual National Wage Survey (to be launched in the Spring of 2015) at a cost of $6 million per year.  The data will be collected from up to 100,000 employers, compared to 56,000 households previously.  The previous survey’s information is only accurate at the provincial level.  However, the new Wage Survey will include a sample size large enough to provide reliable data broken down by province/territory and by Statistics Canada Economic Region.

Better Use of Existing Government Data [Implementation: Summer 2015]

The survey data will be supplemented by information from the Employment Insurance (“EI”) program and other internal sources to accurately determine the availability of qualified Canadian workers.  For example, program officers will know if employers requesting temporary foreign workers have recently laid-off Canadian workers. Program officers will also be able to determine if employers are requesting temporary foreign workers in regions where there are unemployed Canadians with the appropriate skills.  EI data can also be used to help match unemployed workers with available jobs.

Increased Number and Scope of Inspections [Implementation: Immediate]

Effective immediately, the Canadian Government is significantly increasing the number of inspections so that one in four employers using temporary foreign workers will be inspected each year.  These inspections will take place as a result of tips, employers being deemed high-risk, and random audits.

More Criminal Investigations [Implementation: Autumn 2014]

Employers suspected of criminal activities under the Immigration and Refugee Protection Act (“IRPA”) are referred to the Canada Border Services Agency (“CBSA”).  CBSA will receive new financial resources to increase its capacity to investigate suspected offenses by employers under the IRPA.

Improved Information Sharing [Implementation: Autumn 2014]

The Canadian Government will improve its ability to collect and share information between government departments and other levels of government.

Blacklist, Suspension and Revocation [Implementation: Fall 2014]

If an employer violates (or is suspected of violating) the Temporary Foreign Worker Program, ESDC has the authority to suspend or revoke the employer’s LMIA.  An LMIA will be suspended while an employer is under investigation and will be revoked if, following an investigation, it found to have violated the program.  ESDC will also not process any LMIAs for employers that are under investigation until the investigation is complete and the employer is found to not to have violated the program.  In addition to revocation, if an employer violates the Temporary Foreign Worker Program it will be banned and fined.

The names of employers whose LMIAs are suspended or revoked are currently being added to a public Blacklist website.  Beginning in Fall of 2014, the Blacklist will also include the names of any employer who has been found to be in violation of the Temporary Foreign Worker Program and details of the penalty imposed.

Monetary Fines for Employers Who Violate the Temporary Foreign Worker Program [Implementation: Autumn 2014]

Beginning in Fall of 2014, the Canadian Government will impose fines of up to $100,000CAD (depending on the severity of the offence) on employers who violate the Temporary Foreign Worker Program.  These new fines would be in addition to fines that can already be imposed on employers convicted of offences under IRPA.  The Canadian Government will also publicly disclose the names of employers who have been fined and the amount of the fine on the Blacklist.

Increased LMIA Application Fee [Implementation: Immediate]

The LMIA fee will increase from $275.00CAD to $1,000.00CAD for every temporary foreign worker position requested by an employer.  ESDC will also be seeking the authority to impose an estimated $100CAD privilege fee on employers applying for LMIAs to offset the costs of Government of Canada investments in skills and job training.

Exemptions for On-Farm Primary Agriculture and Live in Caregiver Program Applicants

On-farm primary agriculture, including the Seasonal Agricultural Worker Program (“SAWP”), will be exempt from the fee, the cap, the one-year LMIA duration, and the reduction in the period that a low-wage temporary foreign worker will be allowed to remain in Canada; there are proven acute labour shortages in this sector and the unfilled jobs are truly temporary.  The Live-in Caregiver Program (“LCP”) is also exempt from the cap, the one-year LMIA, and the reduced duration in Canada.  All other measures including stronger enforcement and tougher penalties will apply to on-farm primary agriculture, SAWP and LCP.

End of Moratorium on Food Services Sector [Implementation: Immediate]

In light of the above changes to the Temporary Foreign Worker Program, the Canadian Government is ending the moratorium that was placed on the food services sector on April 24, 2014.

Conclusion

The Canadian Government has not provided a timetable for all of the announced changes.  However, it is clear that some changes have not been implemented yet, while others have been scheduled for implementation at some future date.  In any event, the above changes, once fully implemented, will make it much more difficult for Canadian employers to hire temporary foreign workers.

On June 9, 2014, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 575 (“OB 575″), which provides expanded guidance for intra-company transferee (“ICT”) work permits issued to specialized knowledge workers under the general ICT (C12) category.  This guidance, which is effective immediately, imposes a more rigorous definition of “specialized knowledge” as well as a mandatory wage requirement for some ICTs.  However, OB 575 makes clear (at least with respect to the mandatory wage floor) that this expanded guidance does not apply to specialized knowledge ICTs entering Canada pursuant to the North American Free Trade Agreement (NAFTA) or to any future or current Free Trade Agreements (“FTAs”).

Stricter Interpretation of Specialized Knowledge

OB 575 justifies its more restrictive interpretation of specialized knowledge by referring to the General Agreement on Trade in Services (“GATS”), which currently provides for a stricter definition of specialized knowledge than the general C12 category.  According to the GATS, a specialized knowledge worker must possess “knowledge at an advanced level of expertise” and “proprietary knowledge of the company’s product, service, research, equipment, techniques or management.”

In other words, an applicant is required to demonstrate, on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise.  Proprietary knowledge alone, or advanced expertise alone, does not qualify the applicant under this exemption.  This is a much higher standard than has traditionally been applied to the general ICT category (C12) or ICTs under the existing FTAs.

The following definitions now apply to the C12 category:

• Proprietary knowledge is company-specific expertise related to a company’s product or services. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service.
• Advanced proprietary knowledge would require an applicant to demonstrate: (i) uncommon knowledge of the host firm’s products or services and its application in international markets; or (ii) an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.
• An advanced level of expertise is also required, which would require specialized knowledge gained through significant[1] and recent[2] experience with the organisation and used by the individual to contribute significantly to the employer’s productivity.

In assessing such expertise or knowledge, immigration officers are also instructed to consider:

• Abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term;
• The knowledge or expertise must be highly unusual both within the industry and within the host firm;
• It must be of a nature such that the applicant’s proprietary knowledge is critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant’s expertise;
• The applicant’s proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market.  For example, skill in implementing an off-the-shelf product would not, by itself, meet the standard of specialized knowledge; unless, for example, the product is new or being highly customized to the point of being a “new” product. In other words, an ICT applicant is more likely to have truly specialized knowledge if they directly contribute to the (re)development of a product, rather than to the implementation of a pre-existing product.

CIC considers specialized knowledge to be knowledge that is unique and uncommon; it will by definition be held by only a small number or small percentage of employees of a given firm. Specialized knowledge workers must therefore demonstrate that they are key personnel, not simply highly skilled.

These definitions (in particular the requirement of proprietary knowledge) are a cause for some concern.  They closely resemble the overly restrictive definitions that were once applied by the United States Government when adjudicating the U.S. version of the specialized knowledge ICT category (the L-1B).  However, the United States abandoned these restrictive definitions years ago and adopted a more reasonable interpretation that more closely resembles the threshold that applied to C12 ICT cases immediately prior to OB 575.

OB 575 also requires immigration officers to consider the following about the nature of the employment:

• ICT specialized knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
• Given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
• As the specialized knowledge will not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, a specialized knowledge worker must not receive specialized training by other employees such that this would lead to the displacement of Canadian workers.

This appears to be an attempt to restrict the use of the general ICT category (C12) by third party contractors who hire specialized knowledge workers for the sole purpose of placing them at their client sites, where they will essentially be de facto employees of those clients.  This is admittedly consistent with what the United States has been doing in recent years.

OB 575 makes clear that certain bilateral agreements contain variations of the above definition of “specialized knowledge” which should be respected, while ensuring applicants in fact possess specialized knowledge.  Immigration officers assessing applicants from Colombia and Peru, in particular, are advised to consult the Temporary Foreign Worker Manual for additional detail on the definitions of “specialized knowledge” captured in Canada’s free trade agreements with those countries.  Hopefully, the restrictive interpretations contained in OB 575 will not inadvertently result in stricter adjudications of ICT specialized knowledge cases that are based on the NAFTA or other FTAs.

Mandatory Wage Floor

According to OB 575, if a worker possesses the high standard of specialized knowledge that is uncommon in a particular industry as described above, then the salary or wage should be consistent with such a specialist.  Such a specialist would typically receive an above average salary; therefore, a wage floor set at prevailing wage levels will establish a baseline for the assessment of an application.

OB 575 states that Immigration officers will determine the Canadian prevailing wage for the specific occupation and region of work by using Employment and Skills Development Canada (ESDC) “Working in Canada” website’s tool to determine prevailing Canadian wage.  It also clarifies that non-cash per diems (for example, hotel, transportation paid for by the employer) are not to be included in the calculation of the overall salary or wage.  Only allowances compensated in monetary form and paid directly to the employee are to be included.

This expanded guidance is not dramatically different from the restrictive guidance that CIC had already provided in Operational Bulletin 316 (OB 316), which it published on July 4, 2011.  However, the now-expired OB 316 stated at the time that salary was only one of a series of factors, which had to be taken into consideration as a whole in order to render a sound decision; immigration Officers were reminded that applications should not be refused on the basis of salary alone.  OB 575 now appears to make the relevant prevailing wage an absolute requirement, which means that C12 specialized knowledge applications may be denied solely because the proposed wage falls below the prevailing wage.

OB 575 clarifies that the above policy with respect to a mandatory wage does not apply to specialized knowledge ICTs entering Canada pursuant to the NAFTA or to any future or current FTAs. Nevertheless, wage remains an important indicator of specialized knowledge in such cases and should be taken into account as an important factor in an officer’s overall assessment. In other words, although no prevailing wage requirement applies to specialized knowledge ICTs based on the NAFTA or another FTA, a proposed wage that is too far below the prevailing wage may cause an officer to question whether the proposed position really does involve specialized knowledge.

Conclusion

As mentioned above, the expanded guidance contained in OB 575 should not (at least in theory) affect the adjudication of ICT specialized knowledge applications that are based on the NAFTA or Canada’s other FTAs.  However, citizens of non-FTA countries can expect increased difficulties when applying for ICT work permits as specialized knowledge workers, under the general ICT (C12) category.

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1. “Significant” is not defined as it is not always a meaningful indicator; however, as per the chapter FW 1, section 5.31, it states that “the longer the experience, the more likely the knowledge is indeed ‘specialized’.”

2. “Recent” is defined as within the last five years.

On April 29, 2014, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 572, which provided guidance on the implementation of the twelfth set of Ministerial Instructions. These Ministerial Instructions established caps on the Federal Skilled Worker Class (“FSW”) Class, Federal Skilled Trades (“FST”) Class, and Canadian Experience Class (“CEC”).  Further details appear below.

Limit on the Number of FSW Applications to be Processed

A maximum of 25,000 new, complete FSW applications will be considered for processing under the occupation list stream between May 1, 2014, and April 30, 2015, unless otherwise indicated in a future Ministerial Instruction. There is no limit on the number of new applications with offers of arranged employment that will be considered for processing.

Within the overall cap of 25,000 applications, a maximum of 1,000 complete FSW applications for each eligible occupation in Skill Type 0, or Skill Level A or B as per the 2011 version of the National Occupational Classification (“NOC”) will be considered for processing.  The list of eligible occupations is as follows:

1. Senior managers – financial, communications and other business services (0013)
2. Senior managers – trade, broadcasting and other services, n.e.c. (0015)
3. Financial managers (0111)
4. Human resources managers (0112)
5. Purchasing managers (0113)
6. Insurance, real estate and financial brokerage managers (0121)
7. Managers in health care (0311)
8. Construction managers (0711)
9. Home building and renovation managers (0712)
10. Managers in natural resources production and fishing (0811)
11. Manufacturing managers (0911)
12. Financial auditors and accountants (1111)
13. Financial and investment analysts (1112)
14. Securities agents, investment dealers and brokers (1113)
15. Other financial officers (1114)
16. Professional occupations in advertising, marketing and public relations (1123)
17. Supervisors, finance and insurance office workers (1212)
18. Property administrators (1224)
19. Geoscientists and oceanographers (2113)
20. Civil engineers (2131)
21. Mechanical engineers (2132)
22. Electrical and electronics engineers (2133)
23. Petroleum engineers (2145)
24. Information systems analysts and consultants (2171)
25. Database analysts and data administrators (2172)
26. Software engineers and designers (2173)
27. Computer programmers and interactive media developers (2174)
28. Mechanical engineering technologists and technicians (2232)
29. Construction estimators (2234)
30. Electrical and electronics engineering technologists and technicians (2241)
31. Industrial instrument technicians and mechanics (2243)
32. Inspectors in public and environmental health and occupational health and safety (2263)
33. Computer network technicians (2281)
34. Nursing co-ordinators and supervisors (3011)
35. Registered nurses and registered psychiatric nurses (3012)
36. Specialist physicians (3111)
37. General practitioners and family physicians (3112)
38. Dietitians and nutritionists (3132)
39. Audiologists and speech-language pathologists (3141)
40. Physiotherapists (3142)
41. Occupational therapists (3143)
42. Respiratory therapists, clinical perfusionists and cardiopulmonary technologists (3214)
43. Medical radiation technologists (3215)
44. Medical sonographers (3216)
45. Licensed practical nurses (3233)
46. Paramedical occupations (3234)
47. University professors and lecturers (4011)
48. Psychologists (4151)
49. Early childhood educators and assistants (4214)
50. Translators, terminologists and interpreters (5125)

In addition, a maximum of 500 applications will be considered for processing under a PhD student/graduate stream during the above period.

Limit on the Number of FST Applications to be Processed

A maximum of 5,000 new, complete FST applications will be considered for processing for the period between May 1, 2014, until April 30, 2015, unless otherwise indicated in a future Ministerial Instruction.

Within the overall 5,000 cap, a maximum of 100 complete FST applications for each eligible skilled trade occupation will be considered for processing. Pursuant to Subsection 87.2(1) of the Immigration and Refugee Protection Regulations, eligible skilled trade occupations are restricted to occupations in the following categories listed in Skill Level B as per the 2011 version of the NOC:

1. Major Group 72, industrial, electrical and construction trades;
2. Major Group 73, maintenance and equipment operation trades;
3. Major Group 82, supervisors and technical occupations in natural resources, agriculture and related production;
4. Major Group 92, processing, manufacturing and utilities supervisors and central control operators;
5. Minor Group 632, chefs and cooks; and
6. Minor Group 633, butchers and bakers.

Caps apply irrespective of whether an application is made with a qualifying offer of employment or a certificate of qualification from a provincial or territorial apprenticeship authority.

Limit on the Number of CEC Applications to be Processed

A maximum of 8,000 new, complete CEC applications will be considered for processing for the period between May 1, 2014, until April 30, 2015, unless otherwise indicated in a future Ministerial Instruction.  Within the overall 8,000 cap, a maximum of 200 complete CEC applications for each eligible occupation in Skill Level B as per the 2011 version of the NOC will be considered for processing. Work experience in the following six ineligible occupations cannot be used to qualify for processing:

1. Unit Group 1221, administrative officers;
2. Unit Group 1241, administrative assistants;
3. Unit Group 1311, accounting technicians and bookkeepers;
4. Unit Group 6211, retail sales supervisors;
5. Unit Group 6311, food service supervisors; and
6. Unit Group 6322, cooks.

There is no sub-cap on CEC applications for occupations in NOC Skill Type 0 or Skill Level A, but these occupations are subject to the overall cap of 8,000 new, complete applications.

Processing of Existing Applications

The Ministerial Instructions do not apply to FSW, FST and CEC applications received before May 1, 2014.  All FSW, FST and CEC applications received by the Centralized Intake Office before this date will continue to be considered for processing subject to the program requirements and Ministerial Instructions in effect at the time of application receipt.

On April 24, 2014, Canada’s Minister of Employment and Social Development (Jason Kenney) announced an immediate moratorium on the Food Services Sector’s access to the Temporary Foreign Worker Program (“TFWP”). As a result, Employment and Social Development Canada (“ESDC”) will no longer process any new or pending Labour Market Opinion (“LMO”) applications related to the Food Services Sector. In addition, any unfilled positions tied to a previously approved LMO will be suspended.

In other words, LMOs will not be processed for occupations classified by the 2002 North American Industrial Classification System (“NAICS 2002″) in Food Services and Drinking Places (NAICS subsector 722). Specifically, certain occupations related to sales and service and sales and service management as set out in the National Occupational Classification (“NOC 2006″) will not be processed.

The list of Sales and Services Occupations (Skill type 6 based on NOC-2006) affected under the Food Services Sector appears below:

• 6641 Food Counter Attendants, Kitchen Helpers and Related Occupations
• 0631 Restaurant and Food Service Managers
• 6212 Food Service Supervisors
• 6453 Food and Beverage Servers
• 6611 Cashiers
• 6241 Chefs
• 6242 Cooks
• 6252 Bakers
• 0611 Sales, Marketing and Advertising Managers
• 0621 Retail Trade Manager
• 0632 Accommodation Service Managers
• 0651 Other Services Managers
• 6211 Retail Trade Supervisors
• 6213 Executive Housekeepers
• 6214 Dry Cleaning and Laundry Supervisors
• 6215 Cleaning Supervisors
• 6216 Other Service Supervisors
• 6221 Technical Sales Specialists – Wholesale Trade
• 6251 Butchers, Meat Cutters and Fishmongers – Retail and Wholesale
• 6411 Sales Representatives – Wholesale Trade (Non-Technical)
• 6421 Retail Salespersons and Sales Clerks
• 6451 Maîtres d’hôtel and Hosts/Hostesses
• 6452 Bartenders
• 6484 Other Personal Service Occupations
• 6622 Grocery Clerks and Store Shelf Stockers
• 6623 Other Elemental Sales Occupations
• 6651 Security Guards and Related Occupations
• 6661 Light Duty Cleaners
• 6662 Specialized Cleaners
• 6663 Janitors, Caretakers and Building Superintendents
• 6681 Dry Cleaning and Laundry Occupations
• 6682 Ironing, Pressing and Finishing Occupations
• 6683 Other Elemental Service Occupations

The above moratorium will remain in effect until the completion of an on-going review of the TFWP.

On May 12, 2014, Canada’s Citizenship and Immigration Minister Chris Alexander announced that the Canadian Government was taking action to make it faster and easier for Mexican visitors to come to Canada.  Under the new CAN+ Program, Mexican citizens who have traveled to Canada or the United States within the last 10 years will be eligible for expedited temporary resident visa (“TRV”) processing, although they will continue to require TRVs to enter Canada.

It is also hoped that, by fast-tracking a large number of applications, CAN+ will free up consular officers to work on other cases. As a result, the Canadian Government expects that the CAN+ Program will improve overall processing times for all Mexican travelers, who will see their visas processed in 10 days or less.

In addition to the CAN+ Program, Citizenship and Immigration Canada offers three expedited programs that help Mexican business people, tourist groups and students come to Canada faster:

1. Business Express expedites business travel from Mexico with visas issued within days with a near-perfect approval rate for those registered in the program.
2. Travel Express offers a fast, simplified visa application process for tourists who use travel agencies registered with the Canadian Embassy.
3. Mexican Student Pilot fast-tracks the processing of study permits with a near-perfect approval rate for those who study at participating Canadian educational institutions.

Last year, Citizenship and Immigration Canada (“CIC”) published a notice on its website, which provided valuable guidance regarding the giving of immigration advice.  It states that due to changes in Canada’s immigration law, many stakeholders are now required to be members of a prescribed regulatory body if they wish to provide immigration services to clients, including immigration advice.

According to the notice, the stakeholders affected include: (1) travel agents, (2) employment agents and recruiters, (3) human resources (“HR”) professionals, (4) educational agents, (5) adoption agencies, and (6) live-in caregivers’ agents.  The notice further states that these stakeholders should not perform any of the following tasks:

1. They should not explain and/or advise on someone’s immigration options.
2. They should not guide a client on how to select the best immigration stream.
3. They should not complete and/or submit immigration forms on a client’s behalf.
4. They should not communicate with CIC or the Canada Border Services Agency on a client’s behalf (except for the direct translation of a client’s written or spoken submissions).
5. They should not represent a client in an immigration application or proceeding.
6. They should not advertise that they can provide immigration advice for consideration.
7. HR personnel cannot complete applications forms, such as work permits and visa applications, on behalf of workers recruited.

CIC is clearly warning stakeholders not to engage in the unauthorized practice of law.  It is also of the opinion that merely advising someone on their immigration options can be considered unauthorized practice.  Despite this warning, it remains to be seen whether the above stakeholders will refrain from performing these tasks in the future.

On February 11, 2014, Finance Canada released its 54-page “Jobs Report” alongside the Federal Budget. In that report, the Canadian Government claimed that Canada’s job vacancy rate had been “increasing steadily since 2009.”  However, this claim was challenged by economists, who noted that Statistics Canada’s own figures proved it was declining.

As reported by the media, the problem related to the Canadian Government’s use of data provided by a company known as Wanted Analytics, which uses software to send Web spiders across all known online job sites in order to create a database of available jobs.  The Conference Board of Canada, which also uses Wanted Analytics, recently concluded that job postings from Kijiji were overly volatile and removed them as a source of job data for its own Help Wanted Index.

Officials with the Parliamentary Budget Office have also stated that the Kijiji website is so unreliable as a job site that it can single-handedly explain Finance Canada’s claims.  With the removal of Kijiji from the search, the steep rise in the job vacancy rate essentially disappears.

Some employers still use Kijiji and Craigslist in order to comply with the advertising requirement, which applies to Labour Market Opinion (“LMO”) applications.  However, the recent media attention surrounding the Jobs Report strongly suggests that such websites should not be considered reliable sources for recruitment.

During the past few months, immigration practitioners have reported that some LMO applications, which relied on Kijiji or Craigslist for recruitment, have been denied by Employment and Social Development Canada (“ESDC”).  However, this rejection of Kijiji and Craigslist as a recruitment source is not being applied consistently and no formal guidance has been published by ESDC yet.

Even in the absence of formal guidance, employers that wish to advertise jobs in connection with the filing of an LMO application should avoid the use of free websites such Kijiji or Craigslist.  They should instead consider established employment websites such as canadastop100.com, vault.com, workopolis.com, or monster.ca; all of these websites are specifically listed on the ESDC website as examples of acceptable sources for recruitment.

On February 11, 2014, the Government of Canada announced its intention to terminate the Federal Immigrant Investor Program (“IIP”) and Federal Entrepreneur Program (“EP”) and eliminate the large backlog of applications.  These immigration-related announcements were contained in the Canadian Government’s 2014 Budget (the “Economic Action Plan 2014”).

The Economic Action Plan 2014 proposes to terminate IIP and EP applications filed on or before February 11, 2014, and to return the filing fees paid to those applicants.  However, before this plan can be implemented, the Budget Implementation Act must still be passed by Parliament and receive Royal Assent.

According to Operational Bulletin 566 (“OB 566”), published by Citizenship and Immigration Canada (“CIC”) on February 12, 2014, the processing of IIP and EP applications will continue according to routine office procedures until further notice.  Of course, Canada has not accepted any new IIP applications since July 1, 2012, and has not accepted any new EP applications since July 1, 2011.  OB 566 refers only to cases currently in the backlog.

There has been no announcement regarding which cases currently in the backlog will be processed to completion.  Based on the process used by CIC when it eliminated the backlog of Federal Skilled Worker cases, it is likely that the Budget Implementation Act will terminate all applications that have not reached a specific stage of approval by a specified cut-off date.  Unfortunately, there is no information available regarding what stage of completion and what cut-off date will be used.

According to the Canadian Government, the global economy has changed significantly since the IIP was created three decades ago.  Investment capital flows increasingly freely across borders, and interest rates are low.  Other peer countries have already adapted by increasing the investment and commitment required under their programs.

The Canadian Government has also stated that the EP was designed in the 1970s when Canada’s economic priorities were different from what they are today.  At that time, the focus was on protecting jobs in Canada.  However, a more globalized economy requires a shift towards innovation, productivity and creating better jobs and stronger businesses that can compete on a global scale.

In place of the these programs, the Canadian Government will introduce a new Immigrant Investor Venture Capital Fund pilot program, which will require immigrants to make a real and significant investment in the Canadian economy.  The Government will also undertake consultations on a potential Business Skills pilot program.

These new pilot programs will be implemented by way of Ministerial Instructions, pursuant to Section 14.1 of the Immigration and Refugee Protection Act (“IRPA”), in the same manner as the Start-Up Visa Program.  Under Section 14.1, no more than 2,750 applications may be processed each year under a pilot program.  In addition, a pilot program may only be implemented for a maximum period of five years, after which the Canadian Government must amend IRPA if it wishes to establish a permanent program.

Overview

On February 6, 2014, Citizenship and Immigration Minister (the “Minister”) Chris Alexander unveiled Bill C-24, the Strengthening Canadian Citizenship Act, which will be the first significant amendment to the Canadian Citizenship Act [1] since 1977.  Among other things, Bill C-24 makes the following amendments to the Citizenship Act:

1. It clarifies the meaning of being resident in Canada for naturalization purposes;
2. It changes the period during which a permanent resident must reside in Canada before they may apply for citizenship;
3. It expedites access to citizenship for persons who are serving in, or have served in, the Canadian Armed Forces;
4. It requires an applicant for citizenship to demonstrate knowledge of Canada, knowledge of the responsibilities and privileges of citizenship, and knowledge of one of Canada’s official languages;
5. It specifies the minimum age at which an applicant for citizenship must demonstrate the above knowledge;
6. It requires that an applicant meet any applicable requirement under the Income Tax Act [2] to file an income tax return;
7. It confers citizenship on certain individuals and their descendants who may not have acquired citizenship under prior legislation;
8. It extends an exception to the first-generation limit to citizenship by descent to children born to or adopted abroad by parents who were themselves born to or adopted abroad by Crown servants; and
9. It requires, for a grant of citizenship to an adopted person, that the adoption not have circumvented international adoption law.

Amendments to the Citizenship Act‘s security and fraud provisions also include the following changes:

1. It expands the prohibition against granting citizenship to include persons who are charged outside Canada for an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament or who are serving a sentence outside Canada for such an offence;
2. It expands the prohibition against granting citizenship to include persons who engaged in certain actions contrary to the national interest of Canada while they were permanent residents;
3. It aligns the grounds related to security and organized criminality on which a person may be denied citizenship with those grounds that currently exist in the Immigration and Refugee Protection Act [3] and extends the period during which a person is barred from acquiring citizenship on that basis;
4. It expands the prohibition against granting citizenship to include persons who misrepresent material facts in the course of their application and prohibits new applications by those persons for a specified period;
5. It increases the period during which a person is barred from applying for citizenship after having been convicted of certain offences;
6. It increases the maximum penalties for offences related to citizenship, including fraud and trafficking in documents of citizenship;
7. It provides for the regulation of citizenship consultants;
8. It establishes a hybrid model for revoking a person’s citizenship in which the Minister will decide the majority of cases and the Federal Court will decide the cases related to inadmissibility based on security grounds, on grounds of violating human or international rights or on grounds of organized criminality;
9. It increases the period during which a person is barred from applying for citizenship after their citizenship has been revoked;
10. It provides for the revocation of citizenship of dual citizens who, while they were Canadian citizens, engaged in certain actions contrary to the national interest of Canada, and permanently bars these individuals from reacquiring citizenship; and
11. It authorizes regulations to be made respecting the disclosure of information.

Amendments to the provisions governing the processing of applications and the review of decisions include the following:

1. It requires that an application must be complete to be accepted for processing;
2. It expands the grounds and period for the suspension of applications and provides for the circumstances in which applications may be treated as abandoned;
3. It limits the role of citizenship judges in the decision-making process, subject to the Minister periodically exercising his or her power to continue the period of application of that limitation;
4. It gives the Minister the power to make regulations concerning the making and processing of applications;
5. It provides for the judicial review of any matter under the Citizenship Act and permits, in certain circumstances, further appeals to the Federal Court of Appeal; and
6. It transfers discretionary power to grant citizenship in special cases to the Minister.

Key Changes

Bills C-24 proposes to streamline the citizenship application process by reducing the decision-making process from three steps to one and will eliminate the role of citizenship judges in such applications.  The Government of Canada states that this change should bring the average processing time for citizenship applications down to under a year by 2015–2016.  It also states that the current backlog will be reduced by more than 80% by 2015-2016.

The Government of Canada states that current citizenship application fees only cover 20% of the cost of processing a citizenship application.  Bill C-24 will impose a new $300.00 CAD application fee for citizenship applicants, which should cover the entire cost of processing a citizenship application.

Bill C-24 will increase the period of required residence for citizenship eligibility.  The current rules allow a permanent resident to seek Canadian citizenship after being resident in Canada for at least three years during the four years preceding the filing of the application.  The proposed rules will instead require four years of residence in Canada during the six years preceding the filing of the application.

Bill C-24 will specifically require applicants to have been physically present in Canada for at least 183 days out of each of their four years of residence in Canada.  This addresses the conflicting federal court decisions that have attempted to define the meaning of “resident in Canada” for the purposes of citizenship eligibility.

Bill C-24 will require applicants to have met any applicable requirement under the Income Tax Act to file an income tax return for the four taxation years during which they claim to have been resident in Canada.  This requirement does not exist under the current Citizenship Act.

Bill C24 will broaden the range of applicants who will be required to satisfy the official language and knowledge tests.  Under the current Citizenship Act, applicants ages 18 to 54 must speak English or French and pass a Canadian knowledge test.  The proposed amendments will increase the maximum age to age 64.

One of the most controversial changes contained in Bill C-24 is the ability of the Canadian Government to revoke the Canadian citizenship of dual citizens (both Canadian-born and naturalized citizens) if they are convicted of terrorism, treason or spying abroad.  It will also allow the Government of Canada to revoke the Canadian citizenship of dual citizens who are part of an “organized armed group engaged in armed conflict in Canada,” or block citizenship applications from such people.  Although the proposed law prohibits the Canadian Government from revoking the Canadian citizenship of persons who would otherwise become stateless, critics have pointed out that many Canadians may unknowingly possess citizenship in another country through a parent, even though they have no connection to that country and have never previously claimed that country’s citizenship.

Conclusion

Although Bill C-24 contains several welcome changes to the Citizenship Act, it also contains several controversial provisions that are certain to prompt a heated debate in Canada.

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1. R.S.C., 1985, c. C-29.
2. R.S.C., 1985, c. 1 (5th Supp.).
3. S.C. 2001, c. 27.

As of February 6, 2014, visitors to Canada will automatically be considered for multiple-entry temporary resident visas (“TRVs”).  A multiple-entry TRV will allow a visitor to enter Canada on multiple occasions, during the validity period of the visa, without having to reapply each time.

The fee for a TRV will also be reduced from $150.00 CAD to $100.00 CAD, for the processing of either a single- or multiple-entry visa.  Citizenship and Immigration Canada has also increased other temporary resident application fees as of February 6, 2014.  These changes include the following:

• There will be a $25.00 CAD  increase for study permits and renewals;
• There will be a $5.00 CAD increase for work permits and renewals;
• There will be a $25.00 CAD  increase for extensions to remain in Canada as a visitor;
• The maximum fee for a family to apply for TRVs will increase by $100.00 CAD to $500.00 CAD; and
• The maximum work permit fee for a group of performing artists and their staff will increase by $15.00 CAD to $465.00 CAD.