Introduction

On August 18, 2012, Citizenship and Immigration Canada (“CIC”) published proposed regulatory amendments (the “Proposed Regulations”) in the Canada Gazette, which will significantly alter the Federal Skilled Worker Class (“FSWC”), create a new Federal Skilled Trades Class (“FSTC”), and liberalize the Canadian Experience Class (“CEC”).  A detailed summary of these proposed changes is provided below.

Alterations to the FSWC

Background

As previously reported, on July 1, 2012, CIC imposed a “temporary pause” on the acceptance of new FSWC applications.  The reasons given for this temporary pause were to allow CIC to manage inventory pressures and to align future intake with the implementation of proposed regulatory changes to the Federal Skilled Worker Class.  However, no details of the proposed regulatory changes were provided until now.

The recently-published Proposed Regulations now confirm that CIC intends to rebalance the number of points given among the existing FSWC criteria and to impose additional requirements on some criterion before points will be awarded.  A summary of the key changes appears below.

Minimum Language Proficiency Standards and Higher Points for Language Ability

The Proposed Regulations will require minimum language abilities in order to qualify for the FSWC.  It will also significantly increase the maximum points awarded for fluency in one official language from 16 points to 25 points.  Although the Minister of Citizenship, Immigration and Multiculturalism (the “Minister”) will publish the language threshold at a later date, it is expected that the threshold will be set at the Level 7 of the Canadian Language Benchmark (“CLB”) for all four abilities (speaking, listening, reading, and writing); this threshold corresponds to having “adequate intermediate proficiency.”

The maximum number of points for the second official language will be also reduced from 8 points to 4 points, for abilities at CLB 5 and above.  This reflects CIC’s research and feedback, which found that this factor did not contribute to positive economic outcomes for the majority of applicants.

Age Criteria to Favour Younger Workers

CIC states that younger immigrants tend to integrate more rapidly into the labour market, and they usually spend a greater number of years contributing to Canada’s economy.  As a result, the Proposed Regulations will favour younger immigrants by awarding a maximum of 12 points for applicants from 18 to 35 years of age (compared to applicants from 21 to 49 years of age who receive maximum points under the present criteria).  Applicants between 36 and 46 years of age will receive diminishing points and those 47 years of age or older will receive no points.

Fewer Points for Foreign Work Experience

CIC states that foreign work experience is largely discounted by Canadian employers and is a weak predictor of economic success.  Therefore, the Proposed Regulations will reduce the total number of points given for work experience from 21 to 15 and will increase the years of experience required to achieve the maximum number of points from 4 years to six years.

Foreign Credential Evaluation Required for Education Points

The Proposed Regulations will authorize the approval of organizations and professional bodies as designated credential evaluators.  These designated evaluators will authenticate individual foreign credentials and determine their equivalent in Canada for the purposes of the FSWC.

Where an applicant has listed a regulated occupation in their application, he or she will be required to submit the relevant designated professional body’s foreign credential evaluation establishing that the foreign credential is equivalent to the Canadian educational credential required to practice in that occupation.  Applicants in non-regulated occupations must submit a foreign educational assessment provided by a designed organization to demonstrate that their educational credential is equivalent to a Canadian educational credential.

Applicants whose credentials do not exist in Canada or do not have a credential equivalent to the completed Canadian version in Canada will not be eligible under the FSWC.

Labour Market Opinion (“LMO”) Required for Arranged Employment

CIC states that applicants who immigrate with a valid job offer earn 79% more in wages in the first three years after arrival than people without arranged employment.  However, the potential for fraud requires a more rigorous assessment of the employer and the job offer.

The Proposed Regulations will require employers to apply for an LMO from Human Resources and Skills Development Canada (“HRSDC”) on behalf of an applicant under the FSWC, in the same manner as temporary foreign workers; the arranged employment opinion (“AEO”) currently being used will also be eliminated.  FSWC applicants who obtain an approved LMO from HRSDC will continue to receive 15 points (10 points for arranged employment and 5 points for adaptability).

R82(2) of the current regulations define “arranged employment” to include a skilled worker in Canada who holds an LMO-exempt work permit issued pursuant to:

1. R204(a) [international agreements such as the NAFTA or GATS];
2. R205(a) [including C10 significant benefit to Canada and C12 intracompany transferee work permits]; or
3. R205(c)(ii) [for reasons of public policy relating to the competitiveness of Canada's academic institutions or economy, including C41 work permits for spouses of skilled workers, C42 work permits for spouses of foreign students, C43 post-graduation work permits for students, and C25 off-campus work permits for students].

Applicants who hold these types of LMO-exempt work permits and have a qualifying job offer do not require an LMO or AEO in order to establish arranged employment.

Under the Proposed Regulations, the definition of arranged employment will now be limited to skilled workers who hold an approved LMO or hold an LMO-exempt work permit under R204(a) [international agreements]; such work permit holders must also establish that their employer is making a qualifying job offer (i.e. permanent and non-seasonal).  No explanation has been given for the elimination of the other LMO-exempt work permits from the definition of arranged employment.

Change in Adaptability Factors

As before, the total number of adaptability points will remain at 10.  Under the Proposed Regulations, adaptability points may be awarded as follows (up to the maximum of 10):

1. The maximum number of points (10, up from 5) will be awarded if the principal applicant has qualifying prior work experience in Canada (a minimum of 1 year at NOC 0, A, or B).
2. An accompanying spouse or common-law partner who has qualifying prior work experience in Canada will continue to be awarded 5 points.
3. Points for previous study in Canada by the principal applicant or accompanying spouse or common-law partner will remain at 5.  It must have been full-time study in a program of at least two years, earning the necessary credits to successfully complete two years of study.  For the purposes of adaptability, secondary school is accepted as an eligible program of study.
4. As before, 5 points will be awarded if the principal applicant has arranged employment.
5. As before, 5 points will be awarded if the principal applicant, spouse, or common-law partner has a relative in Canada (although the relative will now need to be 18 years of age or older).  In addition, adaptability points will not be awarded for spouses who are Canadian citizens or permanent residents living in Canada, since they can sponsor applicants through the Family Class.
6. If the accompanying spouse or common law partner has language ability in either official language at CLB 5 or higher, 5 points will be awarded.

Adaptability points for the accompanying spouse or common-law partner’s education (previously 3-5 points) will no longer be awarded under the Proposed Regulations.

Creation of the FSTC

The new FSTC will allow skilled tradespersons with experience in specific occupational areas to seek permanent residence.  The following NOC B occupational areas will be eligible under the FSTC:

1. Industrial, Electrical and Construction trades;
2. Maintenance and Equipment Operation Trades;
3. Supervisors and Technical Occupations in Natural Resources, Agriculture, and Related Production;
4. Processing, Manufacturing, and Utilities Supervisors and Central Control Operators;
5. Chefs;
6. Cooks;
7. Bakers; and
8. Butchers.

Applicants for the FSTC will be required to satisfy four minimum requirements:

1. The applicant must have a qualifying offer of employment (from up to two employers in Canada) having a collective duration of at least one year, or a certificate of qualification from a provincial or territorial Apprenticeship Authority.  Where an offer of employment is used, the employer would be required to obtain a positive LMO.
2. The applicant must possess language proficiency, as evidenced by a test from a designated language testing organization establishing that the applicant’s abilities meet the threshold set by the Minister in all four language abilities (speaking, reading, writing, and listening).  Initially, the threshold is expected to be set at CLB 5 for all four language abilities.
3. The applicant must possess at least twenty-four months of work experience (after qualification or certification in the country where the work was performed, if applicable) in the same skilled trade within the last five years.
4. The Applicant must possess qualifications that satisfy employment requirements as described in the NOC, except for certification and licensing requirements, which are difficult to obtain outside Canada.

As with the FSWC, the Proposed Regulations would also enable officers to provide a substituted evaluation if they believe that the applicant’s ability or inability to meet or not meet the minimum requirements of the class is not a sufficient indicator of whether he or she may become economically established in Canada.

Liberalization of the CEC

The Proposed Regulations would reduce the existing work experience requirement for temporary foreign workers under the CEC from the current requirement of twenty-four months of full-time employment (or equivalent) in Canada to twelve months of full-time employment (or equivalent) in Canada, within the preceding thirty-six months.  Only applicants with NOC 0, A, or B work experience would continue to qualify for the CEC.

The current CEC regulations allow applicants to compensate for a lower level in one language ability with a higher level in another, resulting in a process that CIC characterizes as complicated and confusing for both applicants and visa officers.  The Proposed Regulations will instead set a minimum language threshold in each of the four language abilities (speaking, reading, writing, and listening).  Although the Minister will publish the language threshold at a later date, it is expected to be set at CLB 7 for NOC 0 and A applicants and CLB 5 for NOC B applicants, the same thresholds currently applied under the existing regulations.

Foreign nationals who hold work permits in Canada sometimes wonder what will happen to their immigration status if they quit their jobs or are terminated by their Canadian employers. The answer is not as simple as it appears and it may be surprising to some. A discussion of the relevant issues appears below.

Overview of Temporary Resident Status in Canada

All foreign nationals in Canada who do not hold permanent resident status are considered “temporary residents.” The term “temporary resident” therefore includes visitors, students, and foreign workers.

Temporary residents are permitted to remain in Canada for a finite period of time but, subject to limited exceptions, they are not permitted to attend school or engage in employment without obtaining additional authorization. Therefore, a student will normally need to seek temporary resident status and a study permit. Similarly, a foreign worker will normally need to seek temporary resident status and a work permit.

Temporary resident “status” should be distinguished from a temporary resident “visa.” Temporary resident status refers to the actual status given to a foreign national when he or she is admitted to Canada. On the other hand, a temporary resident visa is an entry document that is inserted into the passport of a foreign national by a Canadian Embassy or Consulate.

Unless the foreign national is considered visa-exempt, he or she must obtain a temporary resident visa at a Canadian Embassy or Consulate prior to arrival in Canada. The foreign national must then present the temporary resident visa to the Canada Border Services Agency (“CBSA”) at the time of entry. If CBSA is convinced that the foreign national is a bona fide temporary resident, he or she will be admitted to Canada in temporary resident status.

Visa-exempt foreign nationals do not need to obtain a temporary resident visa from a Canadian Embassy or Consulate; they may simply travel to Canada and request temporary resident status at the time of arrival. They still need to establish that they are bona fide temporary residents but, if they are successful, they will be admitted to Canada in temporary resident status.

When a foreign national is admitted to Canada based on a work permit or study permit, he or she is given temporary resident status for the same duration as the work or study permit. So a foreign worker who is granted a three-year work permit will be admitted as a temporary resident for the same period of time.

The Effect of Employment Termination on the Foreign Worker’s Work Permit and Temporary Resident Status

Surprisingly, the termination of a foreign national’s employment does not automatically invalidate his or her work permit. According to Section 209 of the Immigration and Refugee Protection Regulations (SOR/2002-227), a work permit becomes invalid when it expires or when a removal order that is made against the permit holder becomes enforceable. R209 clearly makes no reference to the termination of the foreign national’s employment.

Although a work permit authorizes the foreign national to engage in employment with the employer listed on the work permit, it does not create a legal obligation to do so. As a result, even if the foreign national quits or is terminated by the employer, this does not automatically invalidate his or her work permit. Since the work permit remains valid after the termination of employment, the foreign national’s temporary resident status also remains valid.

Of course, the work permit normally cannot be used to engage in employment with any other employer. If the foreign national quits or is terminated, it is unlikely that he or she will work for the original employer listed on the work permit at any time in the future.

Nevertheless, from a technical perspective, the work permit and the foreign national’s underlying temporary resident status remain valid. As a result, the foreign national is entitled to remain in Canada as a temporary resident until the work permit expires, as long as he or she does not violate status by working or studying without authorization (which could result in the commencement of removal proceedings).

The Effect of Employee Termination on a Spousal Work Permit and Temporary Resident Status

According to Paragraph 5.38 of the Foreign Worker Manual, spouses of skilled workers coming to Canada as temporary foreign workers may be authorized to work under R205(c)(ii) without first having a confirmed job offer. Work permits granted to spouses of skilled foreign workers are considered open. In other words, the spouse is authorized to work for any employer in any occupation while the open work permit is valid.

The following eligibility requirements apply to spousal work permits issued under R205(c)(ii):

1. The principal foreign worker must be doing work at a level that falls within NOC Skill Levels 0 (managerial), A (usually requires university education), or B (usually requires college or apprenticeship training).
2. The principal foreign worker must hold a work permit that is valid for a period of at least six month’s duration.
3. The principal foreign worker and spouse must physically reside, or plan to physically reside, in Canada while working.

A foreign national whose employment terminates may wonder whether the work permit held by his or her spouse will continue to be valid, since issuance of the spousal work permit is conditional upon the principal foreign worker holding a valid work permit in a skilled position. For several reasons, the spousal work permit (and underlying temporary resident status) should also continue to be valid:

1. The eligibility criteria described above only require that the principal foreign worker hold a work permit that is valid for a period of at least six month’s duration. Since the principal foreign worker’s work permit should continue to be valid even after his or her termination, the spouse should satisfy the eligibility requirements as long as the principal foreign worker’s work permit will remain valid for at least six months.
2. R209 also applies to a previously-issued spousal work permit. Therefore, even if the spouse fails to satisfy the eligibility requirements at the present time, the previously-issued spousal work permit continues to be valid until it expires.

The Effect of Employee Termination on Travel Abroad

Although foreign nationals who quit or have been terminated may normally remain in Canada as temporary residents until their work permits expire, they may find it difficult to re-enter Canada if they depart prior to the expiration of their work permits. CBSA officers at ports of entry will often refuse to re-admit holders of valid work permits once they learn that the foreign national is no longer working for the employer listed on the work permit.

The legal basis for this practice is not entirely clear. However, CBSA officers at ports of entry are responsible for determining the admissibility of arriving foreign nationals who seek admission as temporary residents. Some CBSA officers probably take the position that possession of a valid work permit alone does not establish the foreign national’s bona fide need to enter Canada, if the initial purpose for granting the work permit (i.e. employment with the stated employer) no longer exists.

Citizenship and Immigration Canada (“CIC”) recently updated its Foreign Worker Manual (“FWM”), which provides guidance to CIC and Canada Border Services Agency (“CBSA”) officers who adjudicate work permit applications. The updated version includes revisions to sections that describe the C12 (Section 5.31) and NAFTA (Appendix G, Sections 4.1 and 4.3) intracompany transferee (“ICT”) exemptions from the Labour Market Opinion requirement.

Both the C12 ICT and NAFTA ICT exemptions apply to executives, managers, and specialized knowledge workers who are transferring from one entity to another within the same multinational organization. The two ICT exemptions are essentially identical. However, the NAFTA ICT exemption applies to citizens of the United States and Mexico only, while the C12 ICT exemption applies to all nationalities.

The first change is a positive one. It clarifies that the foreign national must have worked outside Canada for a related entity of the Canadian employer for at least one year within the three years preceding the date of the initial work permit application. This was intended to address cases where the foreign national had already been working in Canada for at least three years.

Prior to the clarification, there was some uncertainty whether such a foreign national could seek an extension of his or her ICT work permit after the first three years, despite the fact that the maximum period of stay is seven years for executives/managers and five years for specialized knowledge workers. If the relevant three-year period preceded the date of foreign national’s current application rather than the date of the initial application, it would be impossible for any ICT to ever reach the maximum periods of stay allowed under these exemptions. The revision adopts the most logical interpretation.

Unfortunately, the second change is illogical and serves no purpose other than to inconvenience Canadian employers. The updated version of the FWM now states that the foreign national must be currently employed by the multinational organization that plans to transfer him or her to Canada.

CIC may be taking the position that a foreign national should not be considered an ICT unless they are actually transferring from the related foreign entity (i.e. employed by the related entity immediately prior to the transfer). However, this is an overly-mechanical interpretation and it violates established principles of NAFTA reciprocity.

Prior to the revision, a foreign national was only required to work outside Canada with the related entity for at least one year within the three years preceding the work permit application. In other words, the foreign national could have worked for the related foreign entity for one year during the previous three years but then have worked for an unrelated company during the year immediately prior to transferring to the Canadian employer. As long as the foreign national had at least one year of employment abroad with the related foreign entity during the three years prior to the application, he or she could still qualify as an ICT.

This has also been the longstanding position of United States Citizenship and Immigration Services and United States Customs & Border Protection when adjudicating ICT applications (known in the U.S. as L-1 petitions) filed on behalf of Canadian citizens. It is clear that the revision to the NAFTA ICT guidelines violates principles of reciprocity since the U.S. Government does not impose such a restriction on Canadians who apply as ICTs in the United States. Although principles of reciprocity do not necessarily apply to the C12 ICT exemption, given the fact that it was modelled after the NAFTA ICT exemption, it seems illogical to impose this requirement on C12 ICTs also.

Until this problem is resolved, multinational organizations can still satisfy the requirement by rehiring the foreign national abroad immediately before his or her transfer to the Canadian employer. However, this is an added inconvenience for such employers and serves no logical purpose.

On June 29, 2012, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 438 (“OB 438″), which provided guidance on the recently issued Ministerial Instructions that came into force on July 1, 2012.

OB 438 states that a temporary pause has been placed on new applications filed under the Federal Skilled Worker Program (“FSWP”), excluding applications received under the PhD eligibility stream and those with a qualifying offer of Arranged Employment (“AE”). The effective date of the temporary pause was July 1, 2012. As of that date, the only FSWP applications that will be accepted are those filed by:

1. Skilled workers with a valid offer of arranged employment.
2. International students enrolled in a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:
   • Have completed at least two years of study towards a PhD;
   • Are in good academic standing at the time they apply;
   • Are not recipients of an award requiring them to return to their home country to apply their knowledge and skills; OR

   International students who graduated from a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:

   • Graduated no more than 12 months before the date their application is received;
   • Did not receive an award which required them to return to their home country to apply their knowledge and skills (or did, but have satisfied the terms of the award).

A maximum of 1,000 applications from the PhD eligibility stream will be considered for processing each year. Applications will be considered in the order they are received.

The first cap year for the PhD stream began on November 5, 2011, and will end on October 31, 2012. Unless otherwise indicated in a future Ministerial Instruction, the cap will be automatically reset on November 1, 2012.

According to OB 438, a temporary pause has also been placed on new applications filed under the federal Immigrant Investor Program (“IIP”). Effective July 1, 2012, no new IIP applications will be accepted by CIC; there are no exceptions.

On July 13, 2012, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 449 (“OB 449″). OB 449 provides guidance on recent Ministerial Instructions that prohibit the processing of work permit applications filed by temporary foreign workers who will be working in a sector where “there are reasonable grounds to suspect a risk of sexual exploitation of some workers.” The prohibition applies to all initial and extension applications filed on or after July 14, 2012.

For the purposes of the prohibition, strip clubs, escort services and massage parlours are considered businesses where there are reasonable grounds to suspect a risk of sexual exploitation. However, OB 449 advises officers not to refuse applications involving businesses where employees have qualifications and credentials that are regulated and certified by provincial authorities, such as massage therapy clinics.

The prohibition applies to all work permit applications where the applicant is destined to work for such a business, or to perform contract work for the business or on its premises (including on a self-employed basis), irrespective of the specific occupation that the applicant is intended to fill at that business. In addition, if a foreign national who will be working in the occupation of exotic dancer is destined to a bar or hotel that only has an exotic dance performance occasionally and would not normally be considered a “strip club,” the establishment would still be considered a “strip club” for the duration of the foreign national’s performance. In other words, such a business would also be subject to the prohibition.

Finally all open work permits (i.e. work permits that are not tied to a specific employer or occupation) will now have the following condition placed in the visible remarks section of the document:

Not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services.

This condition informs the work permit holder that employment, self-employment, or contract services in this sector are not permissible.

The International Student Category offered by Opportunities Ontario, Ontario’s provincial nominee program, includes international students who have a job offer from an employer located in Ontario. The International Student with a Job Offer Stream is different from the PhD Graduate Stream and Masters Graduate Stream because it includes international students who are:

1. Graduating from two-year undergraduate diploma/degree programs; or
2. Graduating from one year post-graduate degree/certificate programs, even if they are not considered Masters-level programs.

An international student may apply under this stream while completing his or her last semester, or within two years after graduation. He or she may also be a graduate of any eligible publicly-funded Canadian college or university, not just an educational institution located in Ontario.

In order to apply to Opportunities Ontario as an international student with a job offer, the following must apply:

1. Applicants must have completed at least half of their studies in Canada, and be graduating (or have graduated) from an eligible publicly funded Canadian college or university. A list of eligible colleges and universities appears here.
2. Applicants must have completed a minimum of a two-year diploma or degree program, while studying on a full-time basis. One-year post-graduate degree programs and certificate programs, which require a previous degree or diploma (which may have been obtained abroad), are also eligible.
3. Applicants must have a job offer in a managerial, professional or skilled trades occupation (NOC Type 0 and Skill Levels A or B); they may refer to the NOC Matrix to determine if a particular position qualifies. Surprisingly, the job offer does not have to be related to the field of study.
4. Applicants must have a job offer that is permanent and full-time. A full-time job consists of 1,560 hours of paid employment in a 12-month period. The following is not considered full-time work, even if workers are employed for 1,560 hours in a 12-month period:
   • Seasonal, cyclical or part-time employees regardless of their working hours;
   • Subcontractors or agency workers; and
   • Employees who do not work on the company’s premises, such as employees who work from home, or employees who work in a “virtual” location and serve the employer by telecommuting.

   However, the proposed wage must only meet the entry level wage for the occupation, instead of the normal prevailing wage required for applicants in the General Category (which is used to nominated foreign workers).

5. Applicants must apply within two years of the date on which they received their degree or diploma, or in the alternative, during the last semester of completing their degree or diploma (in which case they will have to provide transcripts which indicate that they will be graduating at the end of the semester).
6. Applicants must be in legal status, if they are presently in Canada.

International students do not need to have any previous work experience. They may also apply for an approved position from within Canada or from overseas. However, international students subsidized through Canadian International Development Agency grants or a home country scholarship that includes return obligations will not be eligible until such obligations have been fulfilled.

As is the case in the General Category, before an applicant can apply under the International Student with a Job Offer Stream, his or her the prospective employer must first apply to establish that it qualifies and that the proposed position falls under Skill Type 0 or Skill Level A or B. Prospective employers must:

1. Have been in active business for at least 3 years (corporations, limited partnerships and sole proprietorships);
2. Have a minimum of $1,000,000 in gross revenue for the most recent fiscal year (for companies inside the Greater Toronto Area (“GTA”)), or have a minimum of $500,000 in gross revenue (companies outside the GTA);
3. Have a minimum of 5 permanent full-time employees (for companies inside the GTA), or have a minimum of 3 permanent full-time employees (companies outside the GTA); and
4. Have business premises in Ontario where the prospective nominee will work.

Once the prospective employer has been issued an Employer Pre-screen Approved Position Form for the proposed position, the applicant will have 60 days to submit his or her nominee application form. Once the nominee application has been approved, Opportunities Ontario will issue a nomination certificate to the applicant, who can then use it to seek permanent residence at a Canadian consulate abroad.

Overview

Effective April 25, 2012, Human Resources and Skills Development Canada (“HRSDC”) has implemented its new Accelerated Labour Market Opinion (“A-LMO”) Initiative. The A-LMO initiative is intended to expedite the regular Labour Market Opinion (“LMO”) process for employers with an established track record of compliance.

An A-LMO application does not exempt employers from normal criteria applicable to a normal LMO application. HRSDC will still assess the A-LMO based on:

1. The genuineness of the job offer;
2. The wage offered; and
3. Whether the job offer is likely to fill a labour shortage.

However, A-LMO applications filed with HRSDC will be approved within ten business days, rather than after several weeks (or in some cases, months).

The A-LMO initiative applies only to higher skilled positions, which include positions within skill type 0 (management occupations), skill level A (occupations usually requiring university education), and skill level B (occupations usually requiring a college education or apprenticeship training) under the National Occupational Classification. However, Canadian employers hiring in the film and entertainment and agriculture sectors must still apply under the regular LMO process, even if they involve positions within skill type 0 or skill level A or B. In addition, the A-LMO is not being implemented in the Province of Quebec.

Employer Eligibility

In order to qualify to participate in the A-LMO Initiative, employers must:

1. Have been issued at least one positive LMO within the previous two years;
2. Have a clean compliance record with the Temporary Foreign Worker (“TFW”) Program within the previous two years;
3. Have agreed to all of the attestations included in the A-LMO application;
4. Not have been the subject of an investigation, infraction or a serious complaint, and
5. Not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.

Eligible employers who participate in the A-LMO initiative are required to comply with all program requirements for higher skilled positions (i.e. Skill type 0, skill level A, and skill level B), including the following:

1. They must research and understand the prevailing wage for the proposed occupation in the area where the employee will work, using the information provided on the Working in Canada Website, and agree to pay a wage level at least equal to this amount. Under HRSDCs new wage structure, employers can pay wages that are up to 15% below the average wage in the area where the employment will occur, in the case of a high-skill occupation. However, employers must provide documentation that clearly demonstrates that the wage being paid to a temporary foreign worker is the same as that being paid to their Canadian employees in the same job and in the same location.
2. They must comply with same advertisement and recruitment requirements that apply to regular LMO applications, prior to offering the job to the TFW and submitting the A-LMO application.

Post-LMO Compliance Reviews

In connection with an A-LMO application, employers must consent to participate in a post-LMO compliance review. By consenting, employers allow HRSDC to perform a compliance audit of any positive LMO issued to the employer during the previous two years. During the review, employers must submit documentation to demonstrate compliance with the terms and conditions of the positive LMO or A-LMO letters and their annexes.

HRSDC has indicated that up to 20% of positive A-LMOs will be selected for a compliance review. These reviews will normally be based on random selection. However, cases may also be selected in response to information received subsequent to the issuance of an A-LMO. In addition, in cases where the employer files an A-LMO application offering to pay wages that are below the average wage in the area where the employment will occur (in accordance with HRSDCs new wage structure), that employer will likely be flagged for post-LMO compliance review.

According to HRDSC, in order demonstrate compliance during a post-LMO compliance review, employers may be required to submit the following documents:

1. Payroll information for the TFW and potentially for Canadian citizens and permanent residents;
2. Collective bargaining agreements;
3. Time sheets;
4. Job descriptions;
5. Copies of recruitment advertising;
6. Proof of no labour dispute;
7. Copies of the TFW’s work permit; and
8. Proof of registration with provincial/territorial workplace safety (where applicable).

Employers should retain all documents related to the A-LMO application and attestations, as well as any documents related to other positive LMOs, for up to six years. Failure to provide the requested documentation will disqualify the employer from future participation in the A-LMO Initiative.

Consequences of Non-Compliance

When non-compliance is determined, employers will have an opportunity to provide justification as well as to take corrective action, where applicable. HRSDC will work with the employer to implement the appropriate corrective action and may request proof to this effect in order for the employer to be deemed compliant. Employers found non-compliant with the A-LMO Initiative will be subject to several adverse consequences, which may include:

1. Ineligibility to utilize the A-LMO initiative in the future;
2. Revocation of other LMOs for which work permits have not yet been issued;
3. The sharing of HRSDC’s findings with its federal and provincial partners, for further investigation; and
4. Greater scrutiny in the review of any pending or subsequent LMO applications filed by that employer.

Submitting A-LMO Applications

Employers who want to hire TFWs using the A-LMO Initiative can apply online using HRSDC’s TFW Web Service, which is also used for regular LMO applications, or send in a paper application. However, the employer and any third party representative must first register by completing, signing, and then faxing/mailing the necessary registration forms to HRSDC before being permitted to file an A-LMO or LMO application online. This can make the online application process less convenient for both the employer and its third party representative.

On April 25, 2012, Diane Finley, Minister of Human Resources and Skills Development, announced her intention to make improvements to the Temporary Foreign Worker (“TFW”) Program. In connection with this announcement, Human Resource and Skills Development Canada (“HRSDC”) has adopted a new wage structure that will be applicable to Labour Market Opinion (“LMO”) applications and Accelerated LMO (“A-LMO”) applications.

Under the previous wage structure, employers were required to pay temporary foreign workers at least the average wage for the proposed occupation in the specific region where the employment was to occur, regardless of what they were paying their Canadian employees. In many cases, this resulted in employers paying TFWs more than Canadians. The method of determining the average wage was also inconsistent from region to region, which resulted in a lack of consistency.

The new wage structure is based on Statistics Canada’s data to ensure consistency from region to region (provided at the Working in Canada Website) and allows employers to pay wages that are below the average wage, within a set range, under certain circumstances. Employers can now pay wages that are:

1. Up to 15% below the average wage for a high-skill occupation (skill type 0, skill levels A and B under the National Occupational Classification (“NOC”)) in the region where the employment will occur; and
2. Up to 5% below the average wage for a low-skill occupation (NOC skill levels C and D) in the region where the employment will occur (the wage for a low-skill occupation cannot be below the minimum wage).

However, employers who choose to pay a wage that is below the applicable average wage in accordance with the new wage structure will be required to provide documentation clearly demonstrating that the wage being paid to a TFW is the same as that being paid to their Canadian employees in the same job and in the same location. In addition, if they participate in the A-LMO initiative, they will likely be flagged for post-LMO compliance review.

According to HRSDC, the new wage structure does not apply to the Seasonal Agricultural Worker Program, the Agricultural Stream of the NOC C and D Pilot Project or the Live-in Caregiver Program because employers participating in these programs hire mostly temporary foreign workers.

Citizenship and Immigration Canada (“CIC”) has launched a pilot project as part of its plan to streamline procedures and improve services to newcomers. As of April 30, 2012, most permanent residents who apply for Permanent Resident Cards no longer need to visit a CIC office; they will instead receive their Permanent Resident Cards by mail. The pilot project will be evaluated after one year.

According to CIC, mailing Permanent Resident Cards directly to applicants is expected to decrease wait times by up to four weeks. It also claims that the direct mail-out of Permanent Resident Cards will reduce the burden on permanent residents who might otherwise need to travel long distances to a local CIC office.

Even before the pilot project, newly landed permanent residents did not need to apply for their Permanent Resident Card, since it was directly mailed to them. However, applicants seeking renewals of their Permanent Resident Cards (which are valid for five years at a time) were required to personally appear at a CIC office in order to pick up their card.

While most Permanent Resident Cards will now be mailed directly to applicants, a small number of applicants will still be asked to pick up their cards at local CIC offices. This will allow CIC to gather information for analysis regarding the effectiveness of the program.

Upon issuance of a new Permanent Resident Card, CIC will invalidate the previous card to ensure that old cards cannot be used. Permanent residents must destroy their old card upon receiving their new Permanent Resident Card, as it will not be valid.

On April 18, 2012, Citizenship, Immigration and Multiculturalism Minister Jason Kenney launched consultations on the possible creation of a new program to attract immigrant entrepreneurs. Citizenship and Immigration Canada (“CIC”) will consult with industry associations in the development of a “start-up” visa program for innovative entrepreneurs in the coming months.

A “start-up” visa program differs from existing investor and entrepreneur options to the extent that the entrepreneur is not required to be the source of investment capital. Such a program would enable entrepreneurs who establish start-up businesses using capital contributed by third parties, such as venture capital firms or angel investors, to seek permanent residence in Canada.

Although the Government is only initiating consultations at this point, the proposed “start-up” visa program may ultimately resemble S. 565: StartUp Visa Act of 2011 (introduced in the United States Senate on March 14, 2011) and H.R. 1114: StartUp Visa Act of 2011 (introduced in the United States House of Representatives on March 15, 2011). S. 565 and H.R. 1114 (collectively, the “StartUp Visa Bills”) offer three options for immigrant entrepreneurs:

1. Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if a qualified U.S. investor agreed to financially sponsor their entrepreneurial venture with a minimum investment of $100,000. After two years, their business must have created 5 new jobs and raised not less than $500,000 in additional capital investment or generate not less than $500,000 in revenue.
2. Immigrant entrepreneurs currently in the U.S.: (1) on an unexpired H-1B; or (2) who have completed a graduate level degree in science, technology, engineering, math, computer science, or other relevant academic discipline from an accredited United States college, university, or other institution of higher education would be eligible for a StartUp Visa if:
   • They demonstrate annual income of not less than 250 percent of the Federal poverty level or the possession of assets of not less than 2 years of income at 250 percent of the Federal poverty level; and
   • Have proven that a qualified U.S. investor agrees to financially back their entrepreneurial venture with a minimum investment of $20,000.

   After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

3. Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if they have controlling interest of a company in a foreign country that has generated, during the most recent 12-month period, not less than $100,000 in revenue from sales in the U.S. After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

Although these StartUp Visa Bills are unlikely to be passed by Congress, it is hoped that the Government of Canada will implement its own “start-up” visa program soon. If it does, it will gain a significant competitive advantage over the United States.

According to CIC, this “start-up” visa initiative is an example of the type of small-scale programs that would allow it to try innovative approaches to economic immigration. Under the proposed changes, CIC can create new, short-term programs under the Economic Immigration Class. These programs would be limited to no more than 2,750 applications per year and would end after five years. If a program proves successful during the five-year trial period and CIC wishes to maintain it, it would be required to formally introduce the new economic class in the Immigration and Refugee Protection Regulations.