On December 30, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 373 (“OB 373”).  OB 373 provides additional information relating to the Excessive Demand Cost Threshold (the “Demand Threshold”) for 2012, which became effective on December 1, 2011.

The Demand Threshold is used to determine whether a foreign national should be barred from Canada based on health grounds. Although it may also be applied in the case of temporary residents (i.e. nonimmigrants), the Demand Threshold is most often applied when considering the admissibility of foreign nationals who are seeking permanent residence in Canada.

Applicable law

According to Clause 38(1)(c) of the Immigration and Refugee Protection Act, a foreign national is inadmissible on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services. The term “excessive demand” is defined in the Subsection 1(1) of the Immigration and Refugee Protection Regulations (“IRPR”) as:

1. A demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by the IRPR, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than ten consecutive years, or
2. A demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents

However, according to R38(2), the excessive demand ground of inadmissibility does not apply in the case of a foreign national who:

1. Is a member of the Family Class (a spouse, common-law partner or child of a sponsor who is seeking permanent residence)
2. Has applied for a permanent residence as a Convention refugee or a person in similar circumstances, or
3. Is a protected person.

The above individuals may not be barred from Canada based on excessive demand. However, the Demand Threshold is relevant to all other foreign nationals seeking both temporary resident and permanent resident status.

Initially, the Canadian Institute for Health Information (“CIHI”) aggregate that represented average Canadian per capita health expenditure was used as the Demand Threshold. However, CIC’s Health Branch felt that CIHI figure did not completely cover expenditures for certain social services. In January 2003, a supplementary amount was identified to account for the missing per capita expenditures and this amount was combined with the CIHI figure to calculate the Demand Threshold.

Application

The 2012 Demand Threshold has been set at $6,141.00CAD per year, and is effective as of December 1, 2011. As the definition of excessive demand describes costs incurred over a period of five consecutive years, the annual figure is normally multiplied by five and then compared to the expected medical costs of the foreign national during that period. This results in a legislated 2012 Demand Threshold of $30,705.00CAD ($6,141.00CAD x 5) over five years.

Introduction

On February 4, 2011, President Obama and Prime Minister Harper announced the United States-Canada joint declaration, Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. It contemplated a shared approach to security in which both countries would work together to address threats within, at, and away from the border, while expediting lawful trade and travel.

On December 7, 2011, Obama and Harper released their Beyond the Border Action Plan (the “Plan”) which discusses, among other things, their shared vision for perimeter security. In furtherance of this objective, the Plan proposes several immigration-related initiatives. The United States and Canada state that they will:

1. Use a common approach to screening methodologies and programs, including pre-travel screening and targeting; “board/no-board” perimeter screening and decision processes, and technology;
2. Share relevant, reliable, and accurate information within the legal and privacy regimes of both countries, such as information contained on biographic and biometric national security watchlists, certain traveler criminal history records, and immigration violations; and
3. Share United States–Canada entry data at the land border such that the entry information from one country could constitute the exit information from another through an integrated entry and exit system.

Each of these initiatives is described in further detail below.

Common Approach to Screening

In connection with this initiative, Canada has agreed to implement two initiatives over the next 4 years: (a) the Electronic Travel Authorization (“eTA”), to improve screening of all visa-exempt foreign nationals, and (b) Interactive Advance Passenger Information (“IAPI”) to make “board or no-board” decisions on all travelers flying to Canada prior to departure. A brief description of each appears below:

1. The eTA initiative mirrors the Advance Passenger Information System (“APIS”) currently in place in the United States; APIS enables the Department of Homeland Security (“DHS”) to collect manifest information for international flights departing from or arriving in the United States and to compare them to relevant watchlists prior to the issuance of a boarding pass; Canadian citizens are subject to APIS so it is reasonable to assume that United States citizens will be subject to eTA once it is implemented.
2. IAPI mirrors the Electronic System for Travel Authorization (“ESTA”), which currently applies to foreign nationals who travel to the United States under the Visa Waiver Program (“VWP”). Canadian citizens are visa exempt but not as a result of the VWP so they are not currently subject to ESTA. It is therefore reasonable to assume that United States citizens will not be subject to eTA, once it is implemented.

Share Relevant Information to Improve Immigration and Border Determinations

In connection with this initiative, the United States and Canada have agreed to:

1. Share risk assessment/targeting scenarios, and enhance real time notifications regarding the arrival of individuals on U.S. security watchlists;
2. Provide access to information on those who have been removed or who have been refused admission or a visa from either country, as well as those who have been removed from their respective countries for criminal reasons; and
3. Implement a systematic and automated biographic information sharing capability by 2013 and biometric information sharing capability by 2014 to reduce identity fraud and enhance screening decisions, and in support of other administrative and enforcement actions.

This initiative has raised concerns among privacy advocates, who claim that Canada may be sharing too much information with the United States. Although some of this information is already shared between United States Customs & Border Protection (“USCBP”) and the Canadian Border Services Agency (“CBSA”), the Plan proposes even greater sharing of information between the two countries, including:

1. Sharing information concerning who has been removed, denied admission, or refused a visa from the other country; this information has not traditionally been shared between the two countries. Access to this level of information could adversely affect an applicant’s ability to enter the destination country even when they have not previously violated the laws of that country. Not all denials of admission or visa refusals are based on valid grounds of inadmissibility but may have the effect of prejudicing an immigration officer’s decision to admit or deny a specific passenger.
2. Implementing automated biographic information and biometric information sharing capability; this certainly has the potential to violate the privacy rights of Canadian and United States citizens. It remains to be seen how much sensitive information will actually be shared once this initiative has been implemented.

Establish and Coordinate Entry and Exit Information Systems

In connection with this initiative, Canada and the United States have committed to developing a system to exchange biographical information on the entry of travelers, including citizens, permanent residents, and third country nationals, such that a record of entry into one country could be considered as a record of an exit from the other. With regard to air travel, Canada has committed to develop (by June 30, 2014) a system to establish exits, similar to that in the United States, under which airlines will be required to submit their passenger manifest information on outbound international flights.

The United States has been trying to develop and entry-exit control system since it passed Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). However, it was never able to develop an efficient exit control system to track the departure of foreign nationals.

USCBP has implemented an informal exit control system by requiring most departing passengers to surrender their Form I-94 Departure Records at the time of their exit (Canadian citizens entering as visitors for business or pleasure are not issued Form I-94s). However, it is hardly an effective or reliable system. This initiative will eventually allow the United States to track the departure of foreign nationals from the United States by outsourcing the task to CBSA.

Perhaps sharing the Canadian entry information of foreign nationals departing from the United States by land is not a serious concern for Canada, since CBSA must inspect these foreign nationals in connection with their application for admission to Canada and since an entry into Canada is clearly evidence of their departure from the United States. However, Canada’s commitment to share the exit information of foreign nationals departing from Canada by air on international flights may be going a bit too far.

While there may be a legitimate need for the United States to know when a foreign national has entered Canada (i.e. to verify his or her departure from the United States), there is no justification for sharing information on foreign nationals who are departing Canada for a destination other than the United States. If they are in Canada and are not travelling to the United States, there appears to be no legitimate reason why the United States would need this information.

Conclusion

Although some of the above initiatives are potentially controversial (in some cases, potentially unjustifiable), it is still only an action plan. None of the immigration-related initiatives described in the Plan have been implemented yet and it may be some time before this occurs. It will be interesting to see how Canada and the United States ultimately implement these initiatives in the future.

On June 18, 2008, the Immigration and Refugee Protection Act was amended to give the Minister of Citizenship and Immigration (the “Minister”) authority to issue instructions that would allow it to control the processing of applications. Pursuant to this authority, the Minister recently issued a fourth set of Ministerial Instructions (“MI-4″), which came into force on November 5, 2011.

According to MI-4, the Federal Skilled Worker (“FSW”) program will now have a new eligibility stream for international students pursuing doctoral (PhD) studies at Canadian institutions. This adds an additional 1,000 numbers to the current cap of 10,000, which are available to FSW applicants who do not have arranged employment.

General Eligibility Requirements

In order to be eligible to apply under this stream, the FSW application must be received by the Centralized Intake Office (“CIO”) in Sydney, Nova Scotia on or after November 5, 2011, and must meet either of the following two sets of criteria in order to be placed into processing:

1. Applications from international students who are currently enrolled in a doctoral (PhD) program, delivered by a provincially or territorially recognized private or public post-secondary educational institution located in Canada, and who have completed at least two years towards the completion of their PhD and who are in good academic standing and who are not recipients of a Government of Canada award requiring them to return to their home country to apply their knowledge and skills. OR
2. Applications from foreign nationals who have completed a doctoral (PhD) program from a provincially or territorially recognized private or public post-secondary educational institution located in Canada no more than twelve months prior to the date their application is received by the CIO in Sydney, Nova Scotia. Applicants must not have received a Government of Canada award that required them to return to their home country to apply their knowledge and skills; or if they were a recipient of such an award, they must have satisfied the terms of the award.

Applicants who are eligible for processing are still assessed under the other requirements of the FSW Program. Applicants must still meet minimal requirements and obtain the minimum pass mark in order to continue processing of their cases.

Annual Limits

A maximum of 1,000 new FSW applications from international students pursuing PhD studies or recently who obtained a PhD at a Canadian institution will be considered for processing each year. This cap will be calculated over and above any other FSW caps on application intake identified in earlier Ministerial Instructions. Under the earlier Ministerial Instructions, FSW applicants who do not have arranged employment in Canada are limited to a total cap of 10,000 a year and a sub-cap of 500 per year for each of 29 specific occupations.

For the purpose of calculating this particular cap, this year will begin on November 5, 2011 and end on October 31, 2012. Subsequent cap years will begin on November 1 and end on October 31, unless otherwise indicated in a future Ministerial Instruction. Applications will be considered in order of the date they are received.

FSW Applications Received before November 5, 2011

MI-4 does not apply to complete applications received prior to November 5, 2011. All FSW applications received by the CIO prior to that date will continue to be considered for processing under the previous Ministerial Instructions

FSW Applications Received on or after November 5, 2011

The MI-4 applies to applications received at the CIO on or after November 5, 2011. The CIO will assess complete applications received on or after this date against the Ministerial Instructions to determine whether applicants are eligible for processing.

The CIO will make a final eligibility determination and those determined to be eligible will be placed into processing. Applications that receive a negative eligibility determination will not be processed and will receive a full refund of the processing fee. In the case of a negative determination, the application and documentation submitted will not be returned.

On June 18, 2008, the Immigration and Refugee Protection Act was amended to give the Minister of Citizenship and Immigration (the “Minister”) authority to issue instructions that would allow it to control the processing of applications.  Pursuant to this authority, the Minister recently issued a fourth set of Ministerial Instructions (“MI-4″), which came into force on November 5, 2011.

In accordance with MI-4, a moratorium (referred to as a “temporary pause” in MI-4) has now been placed on new Family Class sponsorship applications for parents and grandparents (“FC4″).  New FC4 Sponsorship applications for parents [R117(1)(c)] or grandparents [R117(1)(d)] received by the Centralized Processing Centre-Mississauga (“CPC-M”) on or after November 5, 2011, will be returned to the sponsor with a letter advising them of the temporary pause. Applications that are postmarked before November 5, 2011, but are received at CPC-M on or after November 5, 2011 will also be returned to the sponsor.  In both cases, processing fees will be returned.

According to MI-4, this temporary pause is being implemented as part of a broader strategy to address the large backlog and wait times in the Parents and Grandparents category, supporting the attainment of immigration goals set by the Government of Canada.  It will remain in place for up to twenty-four months while a more responsive, sustainable, and long-term approach for the program is considered.

According to the press release issued by Citizenship and Immigration Canada (“CIC”) on November 4, 2011, the following additional changes are also being implemented:

1. The Government of Canada will increase by over 60% the number of sponsored parents and grandparents Canada will admit next year, from nearly 15,500 in 2010 to 25,000 in 2012.  These numbers will apply to parent and grandparent applications filed prior to November 5, 2011.
2. The government is introducing the new Parent and Grandparent Super Visa, which will be valid for up to ten years. The multiple-entry visa will allow an applicant to remain in Canada for up to twenty-four months at a time without the need for renewal of their status. The Parent and Grandparent Super Visa will come into effect on December 1, 2011, and CIC will be able to issue the visas, on average, within eight weeks of the application. This means that instead of waiting for eight years, a parent or a grandparent can come to Canada within eight weeks. Parent and Grandparent Super Visa applicants will be required to obtain private Canadian health-care insurance for their stay in Canada.

The temporary pause on sponsorships of parents and grandparents is certainly controversial.  However, the Minister has tempered the bad news to some extent with increased approval numbers for next year and the possibility of extended temporary resident status for parents and grandparents, under its Parent and Grandparent Super Visa category.

On September 19, 2011, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 346, which authorized the recapture of unused time that would otherwise count against the time limits that are normally imposed on intracompany transferees.  According to Section 5.31 of the Temporary Foreign Worker Guidelines (which describes C12 intracompany transferees) and Appendix G (which describes NAFTA intracompany transferees), executive and managerial intracompany transferees are limited to a maximum stay of seven years and specialized knowledge intracompany transferees are limited to a maximum stay of five years; this parallels the time limits imposed on L-1A (executive and managerial) and L-1B (specialized knowledge) nonimmigrants in the United States.  Once the limit has been reached, the foreign national must complete one year of full-time employment with the multinational organization outside of Canada before becoming eligible for a new seven- or five-year limit.

Unfortunately, most CIC and Canadian Border Services Agency officers would calculate these time limits using the start and end dates shown on a foreign national’s work permit.  While this certainly simplified the task of calculating the time limits, it failed to acknowledge the fact that many intracompany transferees divide their time among one or more international offices.  Some intracompany transferees continue to reside abroad and only travel to their company’s Canadian offices when necessary.  As a result, a foreign national who held a three-year work permit as an intracompany transferee but who only spent four months each year physically in Canada would still have the entire three-year period of the work permit counted against his or her total limit.

In the United States, exceptions to the seven- and five-year time limits imposed on L-1A and L-1B nonimmigrants are recognized in the Department of Homeland Security (“DHS”) regulations, which are codified in Title 8 of the Code of Federal Regulations (“8 CFR”).  According to 8 CFR 214.2(l)(12)(ii), the time limits will not apply to aliens who do not reside continually in the United States and whose employment in the United States is seasonal, intermittent, or consists of an aggregate of six months or less per year. In addition, the limitations do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment.

Prior to Operational Bulletin 346, practitioners would argue that the Canadian intracompany transferee category (at least in NAFTA cases) was intended to be reciprocal and that, since Canadians who entered the United States under L-1A or L-1B status would be entitled to recaptured time, foreign nationals should be entitled to the same treatment.   However, such arguments often met with limited success.

Operational Bulletin 346 now specifically recognizes that time spent outside Canada during the period of the work permit may be recaptured.  It states as follows:

Normally, the duration of the work permit is used to calculate the maximum five or seven year time limit that an ICT is allowed to work in Canada. However, time spent outside Canada during the duration of the work permit can be recaptured. For example, if ICT senior managers have a work permit for one year and spend two 2-month stints over the course of the 12 months working in the U.S., then only 8 months would count against their seven-year limit as ICTs.  In summary, documented time spent outside Canada can be “recaptured” to allow the ICT five or seven full years of physical presence in Canada.

The guidance contained in Operational Bulletin 346 is not as complicated as 8 CFR 214.2(l)(12)(ii); it simply states that only time spent physically within Canada while under an intracompany transferee work permit will count towards the seven- or five-year limit.  Even a foreign worker who spends eleven months out of each year physically in Canada is entitled to recapture one month each year.  Under 8 CFR 214.2(l), an L-1 worker who spent the same amount of time in the United States would not be entitled to any recaptured time.

Foreign workers with Canadian intracompany transferee work permits, who wish to take advantage of Operational Bulletin 346, should make sure that they maintain detailed records of all trips outside of Canada during the period of their work permits.

The Free Trade Agreement (“FTA”) between Canada and Colombia was originally signed on November 21, 2008. However, it did not come into force until August 15, 2011.

As in the case of other FTAs, the Canada-Colombia FTA contains provisions for the temporary entry of treaty nationals pursuant to Section 204 of the Immigration and Refugee Protection Regulations. The Canada-Colombia FTA addresses the entry of treaty nationals (on a reciprocal basis) as business visitors, intracompany transferees, traders, investors, professionals and technicians, and spouses. These provisions appear in “Chapter 12 – Temporary Entry for Business Persons.”

Chapter 12 of the Canada-Colombia FTA is almost identical to Chapter 12 of the Canada-Peru FTA, but includes a section allowing for the issuance of open work permits to spouses of traders, investors, intracompany transferees, or professionals and technicians. This is also different from the North American Free Trade Agreement (“NAFTA”), which did not provide for spousal work permits.

According to Operational Bulletin 342, these new open work permits for spouses will be distinct from the C41 open work permits granted to spouses of skilled workers. As such, open work permits granted to spouses of Colombian nationals under the Canada-Colombia FTA will be given the new exemption code T25.

According to Operational Bulletin 342, guidance on the Canada-Colombia FTA will eventually appear as a new section in Appendix B of the Foreign Worker Manual (“FWM”) published by Citizenship and Immigration Canada (“CIC”). Appendix B provides guidance on International FTAs (other than the NAFTA, which is covered by Appendix G).

Until this new guidance has been added to the FWM, immigration officers are instructed to follow Section 2 of Appendix B, which provides guidance on the Canada-Peru FTA. The list of professionals and technicians in the Canada-Peru FTA section is identical to the list in Chapter 12 of the Canada-Colombia FTA in that it contains a list of professionals not covered followed by a list of technicians that are covered.

Background

On July 4, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 316 (the “Bulletin”). The Bulletin contains additional instructions regarding the assessment criteria that should be considered when adjudicating specialized knowledge intracompany transferee work permit applications.

The background section of the Bulletin refers to a significant increase in specialized knowledge intracompany transferee applications that has occurred since the national labor market opinion exemption for IT workers was eliminated on September 30, 2010. Therefore, it can be inferred that the intention of these instructions is to further limit the number of temporary foreign workers who may qualify under this category.

Factors Considered

According to the Bulletin, when assessing a specialized knowledge worker, officers should consider a number of factors to determine if the application supports the claim of specialized knowledge. These factors include:

1. Education – is a diploma or degree required for the position sought?
2. Knowledge – is it relatively unique within the company and industry in that it is not commonly held?
3. Experience – does the experience with the foreign company/the respective industry support the claim of specialized knowledge
4. Salary – is the salary realistic in terms of Canadian wage levels for the occupation concerned?
5. Relevant training – does any previous training support the claim to specialized knowledge?
6. Supporting documentation – do the resume, reference letters, etc. support the claim?

Additional Guidance on the Meaning of Specialized Knowledge

The Bulletin further states that it is normally not sufficient for a worker to simply have knowledge of the proprietary tools used or developed by the employer. A specialized knowledge worker would normally possess the following characteristics:

1. Knowledge that is uncommon (i.e., beyond that generally found in a particular industry and within the company);
2. Knowledge that has been gained through extensive experience and is difficult to acquire in a short period of time;
3. Difficulty to train another worker to assume such duties;
4. The required knowledge is complex in that it cannot be easily transferred; and
5. A person possessing such knowledge would be in a position that is critical to the well-being or productivity of the Canadian employer.

Application of the National Occupational Classification

The Bulletin instructs officers to identify the occupation by evaluating the proposed job and matching it to one of the occupations listed in the National Occupational Classification (“NOC”). The following guidelines will then apply:

1. The proposed position in Canada must be at a NOC level that is similar to or greater than the applicant’s position abroad, unless an exceptional situation exists.
2. In conjunction with the foreign worker’s knowledge, education and experience, the NOC will also be used to determine the appropriate wage.

Required Salary or Wage

The Temporary Foreign Worker Guidelines relating to specialized knowledge workers already state that job offers must present salaries that are realistic in terms of Canadian wage-levels for the occupation concerned. The Bulletin clarifies that salaries of specialized knowledge workers in Canada should normally approximate the average wage for the stated occupation in the specified geographical location while working in Canada.

Salary calculations that include the use of per diems (i.e. allowances for accommodation, meals, transportation, etc.) in addition to wages, for the purpose of demonstrating that a realistic Canadian wage is being paid, are permitted. However, non-cash per diems (e.g., hotel, transportation paid for by the employer) may not be included in the calculation of the overall salary. Only allowances compensated in monetary form and paid directly to the employee are to be included.

For the purpose of assessing salary in relation to specialized knowledge, the Bulletin refers to www.labourmarketinformation.ca. Of course, this particular website no longer exists – it has been replaced by the Working in Canada website, which is available at http://www.workingincanada.gc.ca/.

The Bulletin does clarify that salary is only one of a series of factors that must be taken into consideration and that applications should not be refused on the basis of salary alone.

Significance of the Bulletin

The Bulletin does not necessarily refer to any new factors that were not already mentioned (at least in general terms) in the Temporary Foreign Worker Guidelines, although it does provide more specific (and perhaps more restrictive) instructions on how these factors should be assessed. The Bulletin also contains a few surprising statements, including the following:

1. That it is normally not sufficient for a worker to simply have knowledge of the proprietary tools used or developed by the employer (knowledge of proprietary tools used or developed by the employer probably should be considered specialized knowledge); and
2. That the proposed position in Canada must be at a NOC level that is similar to or greater than the applicant’s position abroad, unless an exceptional situation exists (this was not necessarily a requirement in the Temporary Foreign Worker Guidelines).

In any event, the author’s most significant concern is that the Bulletin tends to emphasize a more in-depth analysis of the relevant factors and suggests that a much stricter assessment of these factors will be conducted in future adjudications.

On June 26, 2011, we reported that Citizenship and Immigration Canada had imposed an annual quota of 700 Federal Immigrant Investor Program applications each year. This quota came into effect on July 1, 2011.

Unfortunately, we have heard that this quota has already been reached. Investor applicants may still consider the Quebec Immigrant Investor Program and the investor programs available under most of the Provincial Nominee Programs.

On June 24, 2011, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced that Canada would be adjusting its intake of applications from economic immigrants “to further reduce the backlog and improve wait times.” Effective July 1, 2011, the changes will affect new applicants to the Federal Skilled Worker (“FSW”) Program, the Federal Immigrant Investor Program, and the Federal Entrepreneur Program.

The previous Ministerial Instructions, which were published on June 26, 2010, stated that FSW applicants who did not have an offer of employment would not be accepted for processing unless they fell under one of the 29 occupations listed in the instructions. In addition, these applicants were subject to a total cap of 20,000 per year and a sub-cap of 1,000 per year for each of the 29 listed occupations.

As of July 1, 2011, FSW applicants who do not have an offer of employment in Canada will now be limited to a total cap of 10,000 a year and a sub-cap of 500 per year for each of 29 listed occupations. This represents a 50% reduction in both the total number of FSW applicants (who are permitted to apply without an offer of employment in Canada) and in the number that may apply in each of the 29 listed occupations each year.

Minister Kenney is also introducing an annual cap of 700 on new Federal Immigrant Investor applications. Although last year, Citizenship and Immigration Canada (“CIC”) made changes that raised the minimum net worth and investment requirements, Minister Kenny claims that it continues to receive applications in excess of what is required. The annual cap on new applications will supposedly allow for progress on backlog reduction while ensuring that CIC has a sufficient volume of new files to meet its commitments.

Minister Kenney is also introducing a temporary moratorium on new Federal Entrepreneur Program applications. According to the announcement, wait times for this program currently stretch to eight years in some visa offices; by ceasing to accept new applications as of July 1, 2011, CIC will supposedly prevent further processing delays.

The announcement states that the Federal Entrepreneur Program will undergo a review in the coming months to ensure that Canada is better able to attract and retain innovative entrepreneurs. However, in recent years, only a small number of applicants has applied under the Federal Entrepreneur Program. Although time will tell, it is quite possible that the Federal Entrepreneur Program will never be reinstated.

The official news release appears here.

The Ontario Bar Association Citizenship and Immigration Section recently met with representatives of Opportunities Ontario, the province’s Provincial Nominee Program (“PNP”). During this meeting, they provided insight into the level of recruitment activities that would be expected from an employer who files a PNP application on behalf of a prospective employee.

The Opportunities Ontario website states that positions being considered for approval by Opportunities Ontario must “not affect the settlement of any labour dispute or affect the employment of a person involved in such a dispute, or adversely affect employment or training opportunities for Canadian citizens or permanent residents of Ontario.” It also states that, as the PNP is designed in part to assist employers who are having difficulty recruiting qualified, skilled workers in Ontario, “applications from employers who are seeking positions for foreign workers residing abroad, or foreign workers who are visiting Canada, will receive priority processing if those employers have tried to recruit Canadian citizens or permanent residents located in Ontario for those positions before applying to the program.”

It was previously believed that Opportunities Ontario would not attach too much significance to this requirement, since this standard was significantly lower than the standard applied by Human Resources and Skills Development Canada (“HRSDC”) in the context of a Labour Market Opinion (“LMO”). However, recent comments by Opportunities Ontario suggest that they are applying a stricter interpretation than previously believed.

The following issues were discussed by Opportunities Ontario during the meeting:

1. The reference to “priority processing” is in the context of longer processing times for employers who apply without demonstrating recruitment efforts. This has meant that these employers application may take longer to process, as additional documentary information may be requested to determine if approval of the position for a foreign national will negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario. In other words, employers who do not provide evidence of recruitment may have their applications denied rather than simply “delayed.”
2. The simplest way to demonstrate that the test is met is through recruitment efforts. Where prospective nominees are visiting Ontario or abroad, the application recruitment efforts have not been made and the employer is otherwise unable to demonstrate that the position will not affect the settlement of any labor dispute or affect the employment of a person involved in such a dispute, or adversely affect employment or training opportunities for Canadian citizens or permanent residents of Ontario, the application could be denied. Although it is still possible to obtain an approval without evidence of recruitment efforts, this suggests that Opportunities Ontario expects evidence of recruitment in most cases.
3. The recruitment requirement may be relaxed in certain cases. The following examples were provided:
   • If the employee is on an open market post-graduation work permit and the student is applying in the International Student with Job Offer Stream, the recruitment requirement is relaxed. However, if the work permit is through an international agreement such as SWAP/Working holiday/International Experience Canada and the work permit has been issued without an assessment of the labor market impact then recruitment efforts by the employer will need to be demonstrated.
   • If an applicant on an open work permit has worked for the employer for a period of time, then that may be considered when assessing the extent of the recruiting efforts required.
   • If an employer can demonstrate that an employee has a specific skill set, such as highly specialized knowledge or specific and relevant managerial experience, then the employer can explain why recruitment efforts in Ontario were not pursued. Opportunities Ontario will consider such applications on a case by case basis. However applications on the basis that the only specific qualification is that an applicant speaks a particular language are not likely to be approved. This suggests that the recruitment requirement may be relaxed (on a case-by-case basis) for executive, managerial, or specialized employees who are working for the employer under certain LMO-exempt work permits, such as a NAFTA Intracompany Transferee or perhaps even NAFTA Professional.
4. In terms of what evidence of recruitment is required, an employer must provide an explanation of what recruitment efforts were made and the results thereof. There is no set requirement for the type of recruiting conducted but it must be reasonable for the position. Job Bank, recognized internet sites, local newspapers, etc. are all reasonable. Recruitment efforts within the last year prior to submitting the application should be sufficient.

In summary, it would appear as though evidence of recruitment efforts is generally required, although these efforts are lower than what would be required for an LMO application. In addition, the recruitment requirement can be relaxed (on a case-by-case basis) in cases where it can be explained that the approval of the applicant would not negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario.

Based on the above, employers seeking to obtain an Ontario nomination certificate on behalf of a foreign national should either submit evidence of their recent recruitment efforts or be prepared to demonstrate why this evidence is not necessary to establish that the approval of the applicant would not negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario.