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

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

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

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

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

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

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

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

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

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

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

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

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

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