On May 6, 2011, Citizenship and Immigration Canada announced changes to its Transit Without Visa (“TWOV”) Program.

Background

In July 2009, CIC in co-operation with the Canada Border Services Agency (“CBSA”) announced the formalization of the TWOV Program pilot at Vancouver International Airport (“VIA”) in July 2009. The TWOV Program allows certain foreign nationals with valid United States visas, travelling to and from the United States, to transit through Canada without having to first obtain a Canadian visa.

The objective of the TWOV Program is to facilitate the movement of bona fide travellers transiting through Canada while maintaining the security of Canadians and the integrity of Canada’s immigration and refugee protection programs. This program will also improve the international competitiveness of Canadian airports by making them more attractive to airlines and travellers originating from or destined to the United States.

Eligible Foreign Nationals

The TWOV Program applies only to nationals of the following four countries:

1. Indonesia;
2. The Philippines;
3. Taiwan (Note: does not apply to holders of the ordinary passport issued by the Ministry of Foreign Affairs in Taiwan with personal identification number. These individuals are already waived from a visa requirement.); and
4. Thailand.

In order to be eligible to travel under the TWOV Program, nationals of these countries must:

1. Be in possession of a valid visa issued by the United States;
2. Be in possession of a valid passport issued by the authorities of a participating country;
3. Hold a confirmed onward ticket for a connecting flight that departs Canada immediately (foreign nationals transiting Canada under the TWOV Program may not seek entry to Canada as temporary residents); and
4. Arrive in Canada on an airline that has an up-to-date TWOV Memorandum of Understanding (MOU) with CIC and the CBSA; and transit through an approved Canadian airport.

Eligible Airlines

The following airlines have an up-to-date TWOV MOU with CIC and the CBSA, and are therefore eligible to carry TWOV passengers:

1. Cathay Pacific Airways;
2. Philippine Airlines;
3. Air Canada; and
4. Jazz Aviation LP.

Eligible Airports

The TWOV Program was initially available through VIA. However, it has now expanded to include Toronto’s Pearson International Airport (“PIA”) (Terminal 1 only). Effective March 27, 2011 the only two Canadian airports at which this program is eligible are the VIA and PIA (Terminal 1 only).

On May 31, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 310, which discussed recent changes to the Labour Market Opinion (“LMO”) confirmation letters issued by Human Resources and Skills Development Canada (“HRSDC”).

In cases where a positive LMO has been obtained, the employer must provide a copy of the LMO confirmation letter to the foreign national, as CIC and the Canadian Border Services Agency (“CBSA”) require a copy to process the LMO-based work permit application. HRSDC’s Foreign Worker System (“FWS”) also interfaces with CIC systems to provide CIC and CBSA with electronic details about the job offer and the foreign national associated with the LMO confirmation letter.

Until recently, Annex A of an LMO confirmation letter included the name of a foreign national who would be entering Canada under that LMO. Where an LMO confirmation letter was issued for multiple positions, it was commonplace to include multiple names, as listed in Annex A. This presented a privacy risk because the LMO confirmation letter (including Annex A) was sent by the employer to all of the foreign nationals identified, thereby divulging personal information about each foreign worker contained in the LMO.

In response to this privacy concern, as of April 1, 2011, HRSDC implemented a change to their FWS that no longer allows the name of a foreign national to be included in an LMO confirmation letter. However, for the moment, LMO confirmation letters related to the Live-in Caregiver Program (“LCP”) and Arranged Employment Opinions (“AEOs”) will continue to show the name of the FN.

HRSDC continues to share the names of foreign nationals electronically with CIC and CBSA through the FWS interface for the purposes of administering the Temporary Foreign Worker Program. CIC and CBSA officers will only be able to verify a foreign national’s link to the LMO via an Employment Validation search in both Global Case Management System and Field Operations Support System.

United States Citizenship and Immigration Services (“USCIS”) has updated its H-1B cap count for the current fiscal year. As of May 26, 2011, approximately 13,100 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 9,000 H-1B petitions for aliens with advanced degrees.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.