Overview

As previously discussed, Citizenship and Immigration Canada (“CIC”) implemented its Express Entry system on January 1, 2015.  Applicants seeking permanent residence under one of the following classes must now submit an Express Entry Profile and then wait until they receive an Invitation to Apply (“ITA”) before they will be permitted to seek permanent residence:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

The fourth class describes a foreign national who has received a nomination certificate from a Provincial PNP.  A PNP nomination gives the foreign national an additional 600 Comprehensive Ranking System (“CRS”) points under Express Entry, which makes it much more likely that they will receive an ITA quickly.

When the CIC Express Entry Program began on January 1, 2015, the Ontario Immigrant Nominee Program (the “OINP”), formerly known as the Ontario PNP, still did not have an Express Entry Stream in place.  However, the OINP has now announced two Express Entry Streams: (1) the Human Capital Priorities Stream, and (2) the French-Speaking Skilled Worker Stream.

The Ontario Human Capital Priorities Stream is for English-speaking skilled workers who want to live and work permanently in Ontario. The Ontario French-Speaking Skilled Worker Stream is for French-Speaking skilled workers who have strong English language abilities and who want to live and work permanently in Ontario.

Both Ontario Express Entry Streams require a potential applicant to first qualify under CIC’s Express Entry pool, based on either the FSW Class or the CEC.  This means that they must submit an Express Entry profile with CIC and be accepted into the pool of Express Entry candidates, under either the FSW Class or CEC.

Applicants also may not apply directly to the OINP under either of the Ontario Express Entry Streams.  They must first wait until they receive a Notification of Interest (“NOI”) from Ontario.

Refugee claimants currently in Canada are also not eligible to seek a nomination under either of the Ontario Express Entry Streams.

Provincial Eligibility Criteria

To be eligible to apply under either the Human Capital Priorities Stream or the French-Speaking Skilled Worker Stream, applicants must satisfy the following provincial criteria:

Work Experience

All applicants require a minimum level of work experience:

• If an applicant chooses to be assessed against the FSW criteria, he or she must have a minimum of one year of continuous and full-time employment (1,560 hours or more) or an equal amount in continuous part-time paid work experience in a National Occupation Classification (“NOC”) level 0, A, or B occupation in the past five years from the date of the PT Notification of Interest from Ontario.  The one year minimum of continuous and full-time (or equivalent continuous part-time) employment must have been completed in one specific NOC occupation.
• If an applicant chooses to be assessed against the CEC criteria, he or she must have a minimum of one year of cumulative and full-time employment (1,560 hours or more) or an equal amount in part-time paid work experience in a NOC 0, A, or B occupation in Canada in the past three years from the date of the PT notification of interest from Ontario.

Education

All applicants must have a Canadian Bachelor’s, Master’s or Ph.D. degree or an Educational Credential Assessment (“ECA”) report produced by a designated organization indicating that their foreign education is the equivalent of a Canadian Bachelor’s, Master’s or Ph.D. degree.

Language Requirements

For the Human Capital Priorities Stream, all applicants must have a language level of Canadian Language Benchmark (“CLB”) 7 or above in all language competencies (reading, writing, listening, and speaking) in either English or French.  For the French-Speaking Skilled Worker Stream, all applicants must have a French-language level of CLB 7 or above in all language competencies (reading, writing, listening, and speaking) AND an English-language level of CLB 6 in all competencies.

Acceptable tests for language ability are:

• International English Language Testing (“IELTS”) [General Training Test only] or Canadian English Language Proficiency Index Program (“CELPIP”) [General Test only] for English testing; or
• Test d’Evaluation de Français (“TEF”) for French testing.

Express Entry Ranking

All applicants must score a minimum of 400 CRS points in CIC’s Express Entry system. The applicant’s CRS score must remain at or above 400 during both the Ontario nomination processing stage and at the federal permanent residence processing stage.

Settlement Funds

All applicants must possess sufficient funds and/or income to cover settlement costs in Ontario.  Funds must be unencumbered, readily transferable in a convertible currency, and supported by bank statements. Income may be demonstrated from ongoing employment in Ontario or a valid job offer in Ontario (the applicant must be able to legally work in Ontario).

Intention to Reside in Ontario

All applicants must intend to reside in Ontario, as demonstrated by a statement of intent and indication of ties to Ontario.

Additional Requirements

Additionally, if an applicant chooses to qualify under the FSW criteria, they will also be assessed against CIC’s six selection factors to ensure that they meet the minimum requirement of 67 points of assessment under the FSW Class.

Selection and Processing of Ontario Express Entry Stream Applicants

To determine which candidates will receive a NOI, the OINP searches CIC’s Express Entry pool and identifies potential candidates who meet the criteria of the two Ontario Express Entry Streams.  If it identifies a desirable applicant in CIC’s Express Entry pool, the applicant will receive an NOI from the OINP, through CIC’s web portal.

The NOI invites the applicant to apply for nomination under the one of the two Express Entry Streams.  Upon receipt of this NOI, the applicant will have 45 days to apply for a nomination certificate.

If the application is approved, the applicant will receive notification from the OINP.  The Applicant will have 30 days to accept the nomination from Ontario, within CIC’s Express Entry system.

A nomination from the OINP will give the applicant an additional 600 CRS points (once their express Entry Profile has been updated) and they should receive an ITA from CIC soon after.  Once the applicant receives an ITA from CIC, they will have 60 days to apply for permanent residence.

On January 12, 2014, I previously reported that Citizenship and Immigration Canada (“CIC”) had published a Notice of Intent in the Canada Gazette. This Notice of Intent indicated CIC’s intention to introduce an Electronic Travel Authorization (“eTA”) Program in Canada.

The eTA program is a result of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan (the “Action Plan”).  The Action Plan requires Canada and the United States to establish a common approach to screening visa-exempt foreign nationals, in order to identify threats before they arrive in the North American perimeter.  The eTA Program will be similar to the Electronic System for Travel Authorization (“ESTA”) Program, which currently applies to foreign nationals who enter the United States under the Visa Waiver Program.

On April 1, 2015, CIC published regulations (the “eTA Regulations”) in the Canada Gazette.  These eTA Regulations will come into force at 12:00 p.m. Eastern time, on August 1, 2015.

At that time, the online application will be available and eTA processing will begin.  However, in order to minimize impacts on the travelling public, travelers will be exempted from the eTA requirement until March 15, 2016.  In other words, CIC will begin accepting online eTA applications on August 1, 2015, but travelers will not actually be barred from entering Canada until March 15, 2016.

The normal procedure to apply for an eTA will be through the online application form.  However, persons with physical or mental disabilities will be allowed to submit an application by another means that is made available for that purpose, such as a paper application form.

As the eTA Program is only intended to apply to visa-exempt applicants, a foreign national who holds a temporary resident visa is not required to also obtain an eTA.  Further, in order to reduce the duplication of information to be provided by visa-exempt foreign nationals, the eTA Regulations consider a visa-exempt foreign national’s application for a work permit or a study permit to constitute an application for an eTA.   As a result, visa-exempt applicants who apply for a work permit or study permit will not need to obtain an eTA.

Applicants will pay a $7.00 CAD processing fee electronically in connection with their online eTA application.  In circumstances where another application process is used, the fee will be paid when they submit their application.  Visa-exempt foreign national who are applying for a work permit or study permit will be exempted from this fee.

An eTA will be valid for five years from the day on which it is issued or until the applicant’s passport or travel document expires, whichever comes first.  The eTA Regulations also provide an officer with the ability to cancel an eTA that was issued to a foreign national if the officer determines that the foreign national is inadmissible or if the foreign national became subject to a declaration made by the Minister under the Immigration and Refugee Protection Act.

According to the new R7.1(3), the following individuals will be exempt from the requirement to obtain an eTA before applying for admission to Canada:

• Her Majesty in right of Canada and any member of the Royal Family
• A national of the United States;
• A foreign national referred to in R190(2)(a) [a foreign national who holds hold a passport that contains a diplomatic acceptance, a consular acceptance or an official acceptance issued by the Chief of Protocol for the Department of Foreign Affairs and International Trade on behalf of the Government of Canada and are a properly accredited diplomat, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies, or of any international organization of which Canada is a member];
• A foreign national seeking to enter and remain in Canada solely: (i) as a member of a crew of a means of transportation that may be used for transportation by air or to become a member of such a crew, or (ii) to transit through Canada after working, or to work, as a member of a crew of a means of transportation that may be used for transportation by air, if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
• A citizen of France who is a resident of St. Pierre and Miquelon who seeks to enter Canada directly from St. Pierre and Miquelon; and
• A foreign national referred to in R190(3)(b) [a foreign national who seeks to transit through Canada as a passenger on a flight stopping in Canada for the sole purpose of refuelling and: (i) they are in possession of the documents required in order to enter the United States and their flight is bound for that country, or (ii) they were lawfully admitted to the United States and their flight originated in that country], R190(3)(b.1) [a foreign national who seeks to transit through Canada as a passenger on a flight that, owing to an emergency or other unforeseen circumstances, makes an unscheduled stop in Canada], R190(3)(c) [a foreign national who seeks to transit through Canada as a passenger on a flight if the foreign national: (i) is transported by a commercial transporter and there is a memorandum of understanding in effect between the Minister and the commercial transporter concerning the transit of passengers through Canada without a Canadian visa, (ii) holds a passport or travel document that was issued by the country of which the foreign national is a citizen or national and that country is listed in the memorandum of understanding, and (iii) is in possession of any visa required to enter the country of destination], R190(3)(d) [a foreign national who seeks to carry out official duties as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, unless they have been designated under that Act as a civilian component of those armed forces], R190(3)(f) [a foreign national who seeks to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they: (i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and; (ii) return to Canada by the end of the period initially authorized for their stay or any extension to it], R190(3)(g) [a foreign national who seeks to conduct inspections of the flight operation procedures or cabin safety of a commercial air carrier operating international flights, if they are a civil aviation inspector of a national aeronautical authority and possess valid documentation to that effect], or 190(3)(h) [a foreign national who seeks to participate as an accredited representative or as an adviser to an aviation accident or incident investigation conducted under the Canadian Transportation Accident Investigation and Safety Board Act, if they possess valid documentation to that effect].

This final list of eTA exemptions differs from the proposed list initially contained in the Notice of Intent as follows:

• A new temporary resident visa exemption [R190(3)(b.1)] and corresponding eTA exemption has been added for foreign nationals who arrive on-board flights that stop in Canada unexpectedly owing to an emergency or other unforeseen circumstances.
• A new eTA exemption has been added for foreign nationals transiting through Canada under Government of Canada transit programs (i.e. the Transit Without Visa Program and the China Transit Program) and who are currently visa-exempt under R190(3)(c).

In response to stakeholder requests to leverage the eTA to liberalize visa requirements, the eTA Regulations also eliminate the requirement that nationals from Lithuania or Poland obtain a temporary resident visa if they do not hold a machine-readable passport that contains a contactless integrated circuit chip.  As a result, Lithuania and Poland have now been added to the list of visa-exempt countries that appear in R190(1)(a); they will instead be subject to eTA requirements.

The eTA Regulations also eliminate R190(3)(e), which provided a visa-exemption to foreign nationals seeking to enter Canada from the United States for a U.S. immigrant visa interview, if they could establish that they would be re-admitted to the United States.

I previously reported that, since Express Entry began on January 1, 2015, Citizenship and Immigration Canada (“CIC”) had issued four rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants were selected to receive an ITA based on how many points they were assigned under the Comprehensive Ranking System (“CRS”).

CIC has now issued two additional rounds of ITAs, bringing the total to six since Express Entry commenced.  A summary of all six Express Entry rounds to date appears below:

• In Round #1 (January 31, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 886 CRS points.
• In Round #2 (February 7, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 818 CRS points.
• In Round #3 (February 20, 2015), CIC issued 849 ITAs.  Applicants in this round were required to receive at least 808 CRS points.
• In Round #4 (February 27, 2015), CIC issued 1187 ITAs.  Applicants in this round were required to receive at least 735 CRS points.
• In Round #5 (March 20, 2015), CIC issued 1620 ITAs.  Applicants in this round were required to receive at least 481 CRS points.
• In Round #6 (March 27, 2015), CIC issued 1637 ITAs.  Applicants in this round were required to receive at least 453 CRS points.

CIC is clearly increasing the number of ITAs that it issues in each round and is also lowering the minimum CRS score that applies in each round.  In fact, during the last two rounds, the lowest eligible CRS score dropped below 600.  This means that at least some of the ITAs issued during the last two rounds were sent to applicants who did not have arranged employment or a nomination certificate issued under an express entry stream.  This is a welcome trend, which I hope will continue for the balance of the year.

I previously reported that, since Express Entry began on January 1, 2015, Citizenship and Immigration Canada (“CIC”) had issued two rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants were selected to receive an ITA based on how many points they were assigned under the Comprehensive Ranking System (“CRS”).

Since my previous report, CIC has now issued two additional rounds of ITAs, bringing the total to four since Express Entry commenced.  A summary of all four Express Entry rounds to date appears below:

• In Round #1 (January 31, 2015), CIC issued 779 ITAs. Applicants in this round were required to receive at least 886 CRS points.
• In Round #2 (February 7, 2015), CIC issued 779 ITAs. Applicants in this round were required to receive at least 818 CRS points.
• In Round #3 (February 20, 2015), CIC issued 849 ITAs. Applicants in this round were required to receive at least 808 CRS points.
• In Round #4 (February 27, 2015), CIC issued 1187 ITAs. Applicants in this round were required to receive at least 735 CRS points.

It would appear as though CIC is slowing increasing the number of ITAs that it issues in each round.  It is also lowering the minimum CRS score that applies in each round.

This is definitely a step in the right direction.  However, the total number of ITAs being issued is still relatively small, given the fact that Express Entry applies to all cases filed under the FSW, CEC, FST, and Express Entry Stream.  Also, even with a minimum score of 735 CRS points, an applicant cannot receive an ITA unless he or she either: (1) has arranged employment, or (2) has a nomination certificate issued under the Express Entry stream of a PNP.

Hopefully, future rounds will allow for a greater number of ITAs and a minimum score below 600 CRS points.

On December 22, 2014, Citizenship and Immigration Canada (“CIC”) announced a one-year pilot program to issue open work permits to applicants under the Spouse or Common-Law Partner in Canada (“SCLPC”) class before they have received approval in principle.  The SCLPC category applies to spouses and common law partners of Canadian citizens or permanent residents, who are already in Canada and seeking permanent residence within the country.

Prior to this date, applicants under the SCLPC would not be able to seek an open work permit until they had received approval in principle for their permanent residence application.  As it is taking approximately seventeen months for SCLPC applicants to receive approval in principle, the ability to seek an open work permit immediately represents a significant benefit for such applicants.

Applicants who have already submitted an application for permanent residence under the SCLPC but have not yet applied for an open work permit are instructed to apply for their open work permits by mail through the Case Processing Centre in Vegreville, Alberta.  However, if the applicant has already received approval in principle, he or she can also apply online.  New SCLPC applicants should complete their permanent residence and open work permit applications and submit both to the Case Processing Centre in Mississauga, Ontario.

CIC began issuing open work permits to eligible SCLPC applicants who had already filed prior to December 22, 2014.  It also mentioned that applicants who filed on or after that date would have their open work permit applications processed within four months of receipt.

After one year, CIC will to re-assess the pilot program and determine whether it should be continued.

Introduction

On December 16, 2014, Citizenship and Immigration Minister Chris Alexander (the “Minister”) announced that Canada will unveil its Immigrant Investor Venture Capital Pilot Program (the “IIVC”) at the end of January 2015.  The IIVC is designed to attract experienced business immigrants who will actively invest in the Canadian economy and will be available to approximately 50 investors and their families (presumably each year).  Although full details of the IIVC have not been announced yet, what is known so far is summarized below.

Eligibility

The eligibility criteria under the IIVC are designed to attract investors with skills and abilities that will help them integrate into the Canadian economy and society.  These criteria will include the following:

• Proven language proficiency in English or French;
• Either: (1) a Canadian post-secondary degree, diploma or certificate; or (2) a foreign educational credential plus an Canadian educational equivalency assessment from a designated organization;
• A legally obtained net worth of at least $10 million CAD derived from lawful, profit-making business activities, which will be verified by a designated due diligence service provider (only applicants selected for processing under the IIVC will be required to obtain a due diligence report); and
• A non-guaranteed investment in the amount of $2 million CAD, paid into the IIVC fund for a period of 15 years (the funds will be invested in Canadian-based start-ups having high growth potential).

Overview of the Application Process

Citizenship and Immigration Canada (“CIC”) will accept up to a maximum of 500 applications within a specified period.  Applications will be selected randomly for processing until approximately 50 approved applications are finalized.  Applications that are not selected will be returned once the cap has been reached.

CIC claims that selected applicants should receive a decision on their applications within approximately six months of submitting all required documentation.  A similar time frame has also been suggested for applicants who are selected under the new Express Entry system.  However, it remains to be seen whether CIC will actually meet this processing standard once it begins processing IIVC and Express Entry applications.

Analysis of the IIVC

The opening of a new program for immigrant investors is good news, especially since the Canadian Government stopped accepting applications under the previous Immigrant Investor Program on July 1, 2012 (it later terminated the entire program).  However, the IIVC is a pilot program (such programs have a maximum duration of 5 years) and it will be limited to 50 applicants (presumably each year).

In addition, the IIVC must be considered in light of investor programs offered by other countries.  Unless a particular investor is predisposed to choosing Canada, he or she is unlikely to apply under the IIVC unless its eligibility criteria are more generous than those applied by the investor programs of those other countries.

For example, the EB-5 Immigrant Investor Program (the “EB-5 Program”) currently offered by the United States requires only an investment of only $1 million USD in a qualifying business, with no specific net worth requirement.  In addition, applicants who choose to invest in an approved EB-5 Regional Center can invest as little as $500,000 USD (although they will also need to fall within the definition of “accredited investor” in order to comply with U.S. securities laws.

The EB-5 Program does impose additional restrictions that will probably not apply under the IIVC.  For example:

• In most cases the EB-5 Program requires the direct creation of 10 full-time jobs for U.S. citizens, permanent residents, or other lawfully permitted immigrants.  However, in Targeted Employment Areas (most EB-5 Regional Centers are established in such areas), it is possible to demonstrate the indirect creation of these jobs resulting from the investment itself.
• EB-5 Program applicants are given conditional permanent resident status for 2 years and must apply to remove their condition after that date.  However, once the condition has been removed, EB-5 immigrants are permitted to sell their interest in the EB-5 investment (the IIVC will impose a 15-year investment obligation).

Conclusion

Although the IIVC certainly has potential, it remains to be seen whether the program will be popular with foreign investors, in light of the investor options currently offered by other countries.

Introduction

On December 1, 2014, Citizenship and Immigration Canada (“CIC”) published Ministerial Instructions relating to its proposed Express Entry System (“Express Entry”).  Express Entry will come into effect on January 1, 2015, at 12:00 noon EST, and will apply to the following categories:

1. The Federal Skilled Worker (“FSW”) Class;
2. The Canadian Experience Class (“CEC”);
3. The Federal Skilled Trades (“FST”) Class; and
4. Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

In summary, Express Entry will apply to all FSW, CEC, and FST applications filed on or after January 1, 2015.  However, it will not apply to any existing PNP streams.  Instead, each province will have the option of establishing a new Express Entry Stream under its existing PNP.

Overview

Potential candidates will be permitted to submit an online Express Entry profile (i.e. an “Expression of Interest”).  At this time, they will be asked to provide information about their: (a) skills, (b) work experience, (c) language ability, (d) education, and (e) other relevant factors.  However, if a candidate is unable to submit an Expression of Interest online, due to a physical or mental disability, it may be submitted by another means made available by CIC for that purpose.

Candidates who meet the applicable eligibility requirements of at least one of the classes described above (i.e. FSW, CEC, FST, or PNP Express Entry stream) will be accepted into a special pool of candidates (the “Express Entry Pool”).  However, acceptance into the Express Entry Pool does not guarantee that a particular candidate will be issued an Invitation to Apply (“ITA”) for permanent residence.  Instead, candidates in the Express Entry Pool will be ranked against each other using a point-based system called the Comprehensive Ranking System; these points will be awarded using the information contained in each candidate’s Expression of Interest.  The candidates with the highest ranking will be periodically selected from the Express Entry Pool.

Candidates may not receive an ITA unless they satisfy the following requirements:

1. They must satisfy the eligibility requirements of at least one of the classes described above (i.e. FSW, CEC, FST, or PNP Express Entry stream).
2. They must have a positive Labour Market Impact Assessment (“LMIA”), if they are working in Canada under a work permit issued pursuant to: (1) an international agreement between Canada and one or more foreign countries (such as a work permit based on the NAFTA or similar free trade agreements), or (2) a federal-provincial agreement (such as a work permit based on a PNP Nomination Certificate).  This language was particularly troubling because appeared to preclude the issuance of an ITA to certain foreign workers who would not otherwise require an LMIA, unless their Canadian employer obtained one on their behalf.  However, CIC later confirmed that it only intended to clarify that a temporary foreign worker in Canada under an LMIA-exempt work permit would not earn any Express Entry ranking points for arranged employment.
3. Within 30 days from the date that they submit their Expression of Interest, they must register with the Job Bank maintained by Employment and Social Development Canada (“ESDC”), if they do not have a qualifying offer of arranged employment or are not named in a Nomination Certificate issued under a PNP Express Entry stream at the end of that period.

If someone receives an ITA, they will have sixty days to submit an online application for permanent residence.  CIC expects to process the majority of complete applications (meaning those with all the necessary supporting documents) in six months or less.

Candidates accepted into the Express Entry Pool may remain in the pool for up to twelve months, starting on the date that their Expression of Interest was submitted.  If they do not receive an ITA during this period, they will be removed from the pool.  However, they may submit a new Expression of Interest; if they still satisfy the criteria, they can re-enter the Express Entry Pool.

If a candidate declines the invitation within the sixty-day period, the remaining portion of the original one-year period of their inclusion in the Express Entry Pool will continue.  However, if the candidate does not decline the invitation within the sixty-day period and does not make an application for permanent residence within that period, the Expression of Interest will end, regardless of the portion of the one-year period that remains.

Mandatory Submission of Educational Credential Assessments and Language Proficiency Results

Candidates will be required to provide the results of an assessment of their proficiency in English or French (issued by a designated language testing organization or institution) at the time that they submit their Expression of Interest.  Language proficiency assessments are valid for a period of two years from the date that they are issued.

In addition, candidates who are relying on foreign education will be required to provide the results of a valid educational credential equivalency assessment (issued by a designated credential evaluation organization or institution) at the time that they submit their Expression of Interest.  Educational credential assessments are valid for a period of five years from the date that they are issued.

The Comprehensive Ranking System

The ranking of candidates who are included in the Express Entry Pool will be based on the total number of points assigned to each candidate, using the information provided in their Expression of Interest and in accordance with the Comprehensive Ranking System, which considers the following factors:

1. Core human capital factors;
2. Accompanying spouse or common-law partner factors;
3. Skill transferability factors; and
4. Factors relating to a provincial nomination or a qualifying offer of arranged employment.

Maximum Points Allocations

The total number of points that may be assigned under the Comprehensive Ranking System is 1200 points.  These points will be allocated as follows:

1. Where a candidate has no accompanying spouse or common-law partner: (i) a maximum of 500 points for core human capital factors, (ii) a maximum of 100 points for skill transferrability factors, and (iii) a maximum of 600 points for either a provincial nomination or a qualifying offer of arranged employment; and
2. Where a candidate has an accompanying spouse or common-law partner: (i) a maximum of 460 points for the core human capital factors, (ii) a maximum of 40 points for accompanying spouse or common-law partner factors, (iii) a maximum of 100 points for skill transferability factors, and (iv) a maximum of 600 points for either a provincial nomination or a qualifying offer of arranged employment.

Core Human Capital Factors

Age

For a candidate who has no accompanying spouse or common-law partner, points for age are assigned as follows:

1. 0 points, if the candidate is 17 years of age or less;
2. 99 points, if the candidate is 18 years of age;
3. 105 points, if the candidate is 19 years of age;
4. 110 points, if the candidate is 20 to 29 years of age;
5. 105 points, if the candidate is 30 years of age;
6. 99 points, if the candidate is 31 years of age;
7. 94 points, if the candidate is 32 years of age;
8. 88 points, if the candidate is 33 years of age;
9. 83 points, if the candidate is 34 years of age;
10. 77 points, if the candidate is 35 years of age;
11. 72 points, if the candidate is 36 years of age;
12. 66 points, if the candidate is 37 years of age;
13. 61 points, if the candidate is 38 years of age;
14. 55 points, if the candidate is 39 years of age;
15. 50 points, if the candidate is 40 years of age;
16. 39 points, if the candidate is 41 years of age;
17. 28 points, if the candidate is 42 years of age;
18. 17 points, if the candidate is 43 years of age;
19. 6 points, if the candidate is 44 years of age; and
20. 0 points, if the candidate is 45 years of age or more.

For a candidate who has an accompanying spouse or common-law partner, points for age are assigned as follows:

1. 0 points, if the candidate is 17 years of age or less;
2. 90 points, if the candidate is 18 years of age;
3. 95 points, if the candidate is 19 years of age;
4. 100 points, if the candidate is 20 to 29 years of age;
5. 95 points, if the candidate is 30 years of age;
6. 90 points, if the candidate is 31 years of age;
7. 85 points, if the candidate is 32 years of age;
8. 80 points, if the candidate is 33 years of age;
9. 75 points, if the candidate is 34 years of age;
10. 70 points, if the candidate is 35 years of age;
11. 65 points, if the candidate is 36 years of age;
12. 60 points, if the candidate is 37 years of age;
13. 55 points, if the candidate is 38 years of age;
14. 50 points, if the candidate is 39 years of age;
15. 45 points, if the candidate is 40 years of age;
16. 35 points, if the candidate is 41 years of age;
17. 25 points, if the candidate is 42 years of age;
18. 15 points, if the candidate is 43 years of age;
19. 5 points, if the candidate is 44 years of age; and
20. 0 points, if the candidate is 45 years of age or more.

Level of Education

For a candidate who has no accompanying spouse or common-law partner, points for level of education are assigned as follows:

1. 0 points, if the candidate has less than a secondary school credential,
2. 30 points, if the candidate has a secondary school credential,
3. 90 points, if the candidate has a one-year post-secondary program credential,
4. 98 points, if the candidate has a two-year post-secondary program credential,
5. 120 points, if the candidate has a post-secondary program credential of three years or more,
6. 128 points, if the candidate has two or more post-secondary program credentials and at least one of them was issued at the completion of a post-secondary program of three years or more,
7. 135 points, if the candidate has a university-level credential at the master’s level or at the level of an entry-to-practice professional degree for an occupation listed in the National Occupational Classification (“NOC”) matrix at Skill level A for which licensing by a provincial regulatory body is required, and
8. 150 points, if the candidate has a university-level credential at the doctoral level.

For a candidate who has an accompanying spouse or common-law partner, points for level of education are assigned as follows:

1. 0 points, if the candidate has less than a secondary school credential;
2. 28 points, if the candidate has a secondary school credential;
3. 84 points, if the candidate has a one-year post-secondary program credential;
4. 91 points, if the candidate has a two-year post-secondary program credential;
5. 112 points, if the candidate has a post-secondary program credential of three years or more;
6. 119 points, if the candidate has two or more post-secondary program credentials and at least one of them was issued at the completion of a post-secondary program of three years or more;
7. 126 points, if the candidate has a university-level credential at the master’s level or an entry-to-practice professional degree for an occupation listed in the NOC matrix at Skill level A for which licensing by a provincial regulatory body is required; and
8. 140 points, if the candidate has a university-level credential at the doctoral level.

Education points will be assigned based on the highest level of education obtained.  However, in order for a candidate to be assigned points for education, the following must apply:

1. Their educational credentials must be Canadian educational credentials; or
2. They must have a valid educational credential equivalency assessment issued by a designated credential evaluation organization or institution.

Official Language Proficiency

Overview

Points will be assigned to candidates for proficiency in their first official language and for proficiency in their second official language.  As a result, they must indicate which of Canada’s two official languages (English or French) is their primary language and which is their secondary language.  In order to receive points for language, candidates must also have their proficiency assessed by a designated language testing organization or institution.

First Official Language

Points will be assigned for each language skill area (reading, writing, listening, and speaking) of the candidate’s first official language.  The calculation of points will be based on their benchmark level, as assessed under the Canadian Language Benchmarks or the Niveaux de compétence linguistique canadiens.

For a candidate who has no accompanying spouse or common-law partner, points will be assigned for each language skill area as follows:

1. 0 points for being assessed at less than level 4;
2. 6 points for being assessed at level 4 or 5;
3. 9 points for being assessed at level 6;
4. 17 points for being assessed at level 7;
5. 23 points for being assessed at level 8;
6. 31 points for being assessed at level 9; and
7. 34 points for being assessed at level 10 or higher.

The maximum number of points that may be assigned for all four language skill areas, taken together, in the candidate’s first official language is 136 points.

For a candidate who has an accompanying spouse or common-law partner, points will be assigned for each language skill area as follows:

1. 0 points for being assessed at less than level 4;
2. 6 points for being assessed at level 4 or 5;
3. 8 points for being assessed at level 6;
4. 16 points for being assessed at level 7;
5. 22 points for being assessed at level 8;
6. 29 points for being assessed at level 9; and
7. 32 points for being assessed at level 10 or higher.

The maximum number of points that may be assigned for all four language skill areas, taken together, in the candidate’s first official language is 128 points.

Second Official Language

Points will also be assigned for each language skill area (reading, writing, listening, and speaking) of the candidate’s second official language.  The calculation of points will again be based on their benchmark level, as assessed under the Canadian Language Benchmarks or the Niveaux de compétence linguistique canadiens.

Points will be assigned for each language skill area as follows:

1. 0 points for being assessed at level 4 or less;
2. 1 point for being assessed at level 5 or 6;
3. 3 points for being assessed at level 7 or 8; and
4. 6 points for being assessed at level 9 or higher.

For a candidate who has no accompanying spouse or common-law partner, the maximum number of points that may be assigned for all of the language skill areas, taken together, in the second official language is 24 points.  For a candidate who has an accompanying spouse or common-law partner, the maximum number of points that may be assigned for all of the language skill areas, taken together, in the second official language is 22 points.

Canadian Work Experience

Points will be assigned to candidates for Canadian work experience, which is defined as work experience that:

1. Is acquired by a candidate in Canada in one or more occupations listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix;
2. Consists of continuous full-time work experience or the full-time equivalent for part-time work experience; and
3. Is acquired within the 10-year period preceding the day on which points are assigned to the candidate.

Full-time employment means employment of at least 30 hours per week.  A period of work experience that exceeds full-time work in one occupation, or simultaneous periods of work experience in more than one full-time occupation, will be evaluated as a single period of full-time work experience in a single occupation.

Any period of employment during which the candidate was engaged in full-time study, engaged in self-employment, or engaged in unauthorized work may not be counted when calculating the period of work experience.  The candidate must also have had temporary resident status during their period of work experience and any period of full-time study or training.

The candidate must specify in their Expression of Interest the four-digit code in the NOC that corresponds to each of the occupations they have engaged in while accumulating their Canadian work experience.  They must also have performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC, as well as a substantial number of the main duties described therein (including all essential duties).

For a candidate who has no accompanying spouse or common-law partner, points will be assigned for Canadian work experience as follows:

1. 0 points, for no Canadian work experience or less than one year of such experience;
2. 40 points, for one year of Canadian work experience;
3. 53 points, for two years of Canadian work experience;
4. 64 points, for three years of Canadian work experience;
5. 72 points, for four years of Canadian work experience; and
6. 80 points, for five or more years of Canadian work experience.

For a candidate who has an accompanying spouse or common-law partner, points will be assigned for Canadian work experience as follows:

1. 0 points, for no Canadian work experience or less than one year of such experience;
2. 35 points, for one year of Canadian work experience;
3. 46 points, for two years of Canadian work experience;
4. 56 points for three years of Canadian work experience;
5. 63 points, for four years of Canadian work experience; and
6. 70 points, for five or more years of Canadian work experience.

Accompanying Spouse or Common-law Partner

Points will also be assigned based on accompanying spouse or common-law partner factors, which consist of the following: (a) level of education, (b) official language proficiency; and (c) Canadian work experience.  Each of these factors is described below.

Level of Education

In order for a candidate to be assigned points for education of the accompanying spouse or common-law partner (if applicable), the following must apply:

1. Their educational credentials must be Canadian educational credentials; or
2. They must have a valid educational credential equivalency assessment issued by a designated credential evaluation organization or institution.

Points will be assigned for the level of education of the accompanying spouse or common law partner as follows:

1. 0 points, if the accompanying spouse or common-law partner has less than a secondary school credential;
2. 2 points, if the accompanying spouse or common-law partner has a secondary school credential;
3. 6 points, if the accompanying spouse or common-law partner has a one-year post-secondary program credential;
4. 7 points, if the accompanying spouse or common-law partner has a two-year post-secondary program credential;
5. 8 points, if the accompanying spouse or common-law partner has a post-secondary program credential of three years or more;
6. 9 points, if the accompanying spouse or common-law partner has two or more post-secondary program credentials and at least one of them was issued at the completion of a post-secondary program of three years or more;
7. 10 points, if the accompanying spouse or common-law partner has a university-level credential at the master’s level or at the level of an entry-to-practice professional degree for an occupation listed in the NOC matrix at Skill level A for which licensing by a provincial regulatory body is required; and
8. 10 points, if the accompanying spouse or common-law partner has a university-level credential at the doctoral level.

Official Language Proficiency

Points will be assigned for each language skill area (reading, writing, listening, and speaking) for the first official language (but not the second official language) of the accompanying spouse or common law partner.  The candidate must specify which official language is to be considered the first official language of the spouse or common-law partner.

The language proficiency of the accompanying spouse or common-law partner must be assessed by a designed organization or institution.  Points assigned for proficiency in English will be based on the results assessed according to the benchmarks set out in Canadian Language Benchmarks and the points assigned for proficiency in the French language are to be based on the results assessed according to the benchmarks set out in the Niveaux de compétence linguistique canadiens.

Points will be assigned to the candidate for the proficiency of their accompanying spouse or common-law partner, in each language skill area (reading, writing, listening and speaking), as follows:

1. 0 points for being assessed at level 4 or less;
2. 1 point for being assessed at level 5 or 6;
3. 3 points for being assessed at level 7 or 8; and
4. 5 points for being assessed at level 9 or higher.

The maximum number of points that may be assigned for all of the language skill areas, taken together, is 20 points.

Canadian Work Experience

Points will be assigned to the candidate, based on the Canadian work experience of the accompanying spouse or common-law partner, as follows:

1. 0 points, if the accompanying spouse or common-law partner has no Canadian work experience or less than one year of such experience;
2. 5 points, if the accompanying spouse or common-law partner has one year of Canadian work experience;
3. 7 points, if the accompanying spouse or common-law partner has two years of Canadian work experience;
4. 8 points, if the accompanying spouse or common-law partner has three years of Canadian work experience;
5. 9 points, if the accompanying spouse or common-law partner has four years of Canadian work experience; and
6. 10 points, if the accompanying spouse or common-law partner has five or more years of Canadian work experience.

In order for the candidate to be assigned points for the Canadian work experience of their accompanying spouse or common-law partner, the Expression of Interest must include the four-digit code in the NOC that corresponds to each of the occupations that the accompanying spouse or common-law partner has engaged in while accumulating their Canadian work experience.  The spouse or common-law partner also must have performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC, as well as a substantial number of the main duties (including all essential duties).

Skill Transferability Factors

Combination of Level of Education and Official Language Proficiency

The points are to be assigned for a combination of a candidate’s level of education and language proficiency (in their first official language) as follows:

1. 0 points, if the candidate has a secondary school credential, regardless of their proficiency in their first official language;
2. 13 points, if the candidate has a post-secondary program credential of one or more years and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9;
3. 25 points, if the candidate has a post-secondary program credential of one or more years and is assessed in their first official language at level 9 or higher on all language skill areas;
4. 25 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9; and
5. 50 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and is assessed in their first official language at level 9 or higher on all language skill areas.

Points are to be assigned based on the highest level of post-secondary education obtained.

Combination of Level of Education and Canadian Work Experience

Points are to be assigned for a combination of a candidate’s level of education and Canadian work experience as follows:

1. 0 points, if the candidate has a secondary school credential, regardless of their Canadian work experience;
2. 13 points, if the candidate has a post-secondary program credential of one year or more and one year of Canadian work experience;
3. 25 points, if the candidate has a post-secondary program credential of one year or more and two or more years of Canadian work experience;
4. 25 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and one year of Canadian work experience; and
5. 50 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and two or more years of Canadian work experience.

The above points are to be assigned based on the highest level of post-secondary education obtained.

The points assigned for: (a) education plus language, and (b) education plus Canadian work experience may be combined.  However, the total number of points earned for these two factors combined may not exceed 50 points.

Combination of Foreign Work Experience and Official Language Proficiency

Points are to be assigned for a combination of a candidate’s foreign work experience and language proficiency (in their first official language) as follows:

1. 0 points, if the candidate has no foreign work experience, regardless of their proficiency in their first official language;
2. 13 points, if the candidate has one or two years of foreign work experience and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9;
3. 25 points, if the candidate has one or two years of foreign work experience and is assessed in their first official language at level 9 or higher on all language skill areas ;
4. 25 points, if the candidate has three years of foreign work experience and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9; and
5. 50 points, if the candidate has three years of foreign work experience and is assessed in their first official language at level 9 or higher on all language skill areas.

In order for the candidate to be assigned points for foreign work experience, the Expression of Interest must include the four-digit code in the NOC that corresponds to each of the occupations that the candidate has engaged in while accumulating their foreign work experience.  The candidate must also have performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC, as well as a substantial number of the main duties (including all essential duties).

Combination of Canadian Work Experience and Foreign Work Experience

Points are to be assigned for a combination of a candidate’s Canadian work experience and foreign work experience as follows:

1. 0 points, if the candidate has no foreign work experience, regardless of their Canadian work experience;
2. 13 points, if the candidate has one or two years of foreign work experience and one year of Canadian work experience;
3. 25 points, if the candidate has one or two years of foreign work experience and two or more years of Canadian work experience;
4. 25 points, if the candidate has three or more years of foreign work experience and one year of Canadian work experience; and
5. 50 points, if the candidate has three or more years of foreign work experience and two or more years of Canadian work experience.

The points assigned for: (a) foreign work experience plus language, and (b) Canadian work experience plus foreign work experience may be combined.  However, the total number of points earned for these two factors combined may not exceed 50 points.

Combination of Certificate of Qualification and Official Language Proficiency

Points are to be assigned for a combination of a candidate’s certificate of qualification (in a trade occupation issued by a province) and language proficiency (in their first official language) as follows:

1. 25 points, if the candidate has a certificate of qualification and is assessed overall in their first official language under the Canadian Language Benchmarks or the Niveaux de competence linguistique canadiens at benchmark level 5 or higher on all language skill areas, with one or more areas assessed under level 7; and
2. 50 points, if the candidate has a certificate of qualification and is assessed in their first official language under the Canadian Language Benchmarks or the Niveaux de compétence linguistique canadiens at benchmark level 7 or higher on all language skill areas.

Maximum Overall Points for Skill Transferability Factors

The maximum number of points that may be assigned for all of the skill transferability factors taken together is 100 points.

Provincial Nomination under an Express Entry Stream

A total of 600 points may be assigned to a candidate if he or she is named in a Nomination Certificate issued by a PNP and the nomination has been: (a) verified by the relevant province, and (b) accepted by the candidate.  However, these points will be lost if the Nomination Certificate is revoked by the province that issued it, or if the candidate declines the nomination.  In addition, a candidate who receives 600 points for provincial nomination may not receive points for arranged employment.

Offer of Arranged Employment

A total of 600 points may be assigned to a candidate if they have a qualifying offer of arranged employment.  However, these points will be lost if the offer is revoked or ceases to be a qualifying offer of arranged employment. In addition, a candidate who receives 600 points for arranged employment may not receive points for provincial nomination.

The term “qualifying offer of arranged employment” means:

1. An offer of employment in a Skill Type 0, Skill Level A, or Skill Level B occupation, made by an employer (other than a blacklisted employer or an embassy, high commission or consulate in Canada) for full-time work in Canada that is non-seasonal, permanent, and supported by an LMIA;
2. An offer of employment, in a Skill Level B occupation eligible under the FST, that is made by up to two employers (other than a blacklisted employer or an embassy, high commission or consulate in Canada), for continuous, full-time work in Canada for at least one year and that is supported by an LMIA;
3. An offer of employment in a Skill Type 0, Skill Level A, or Skill Level B occupation, made to a candidate who is working in Canada for the employer listed on their work permit (other than a blacklisted employer or an embassy, high commission or consulate in Canada) for full-time work in Canada that is non-seasonal and permanent, if the work permit was issued on the basis of an LMIA; or
4. An offer of employment in a Skill Level B occupation eligible under the FST, that is made to a candidate by one or both employers listed on their work permit (other than a blacklisted employer or an embassy, high commission or consulate in Canada) for continuous, full-time work in Canada for at least one year in a skilled trade occupation that is in the same minor group set out in the NOC as the occupation specified on their work permit, if the work permit was issued on the basis of an LMIA.

Conclusion

Express Entry will add additional complex layer of bureaucracy to the FSW, CEC, and FST classes.  It will also significantly increase the level of uncertainty for candidates seeking permanent residence under these classes, since it will no longer be possible to reliably predict how long it will take for an applicant to be selected from the Express Entry pool.  Many applicants could be included in the Express Entry Pool only to have their Expressions of Interest cancelled one year later if they are not selected.

The Government of Canada has suggested a processing time of six months or less for candidates who are issued an ITA, which is a significant improvement over current processing times.  However, these improved processing times may not be worth the increased uncertainty that will result from the implementation of Express Entry.

We will be watching to see how these cases are processed once Express Entry begins on January 1, 2015.

As previously reported, on February 6, 2014, Citizenship and Immigration Minister (the “Minister”) Chris Alexander unveiled Bill C-24, the Strengthening Canadian Citizenship Act, which proposed significant amendments to the Canadian Citizenship Act (R.S.C., 1985, c. C-29).  On June 19, 2014, the Bill C-24 received Royal Assent and became law.

Bill C-24 updates the eligibility requirements for Canadian citizenship, strengthens security and fraud provisions, and amends provisions governing the processing of applications and the review of decisions.  The amendments to the eligibility requirements include:

1. Clarifying the meaning of being resident in Canada (physical presence rather than residence);
2. Modifying the period during which a permanent resident must reside in Canada before they may apply for citizenship (four years of physical presence in Canada during the six years preceding the filing of the application);
3. Expediting access to citizenship for persons who are serving in, or have served in, the Canadian Armed Forces;
4. Requiring that an applicant for citizenship demonstrate, in one of Canada’s official languages, knowledge of Canada and of the responsibilities and privileges of citizenship;
5. Specifying the age of which an applicant for citizenship must demonstrate the knowledge referred to above and must demonstrate an adequate knowledge of one of Canada’s official languages (changed from 18-54 to 18-64);
6. Requiring that an applicant meet any applicable requirement under the Income Tax Act (R.S.C., 1985, c. 1 (5th Supp.)) to file a an income tax return for the four taxation years during which they claim to have been resident in Canada;
7. Conferring citizenship on certain individuals and their descendants who may not have acquired citizenship under prior legislation;
8. Extending an exception to the first-generation limit to citizenship by descent to children born to or adopted abroad by parents who were themselves born to or adopted abroad by Crown servants; and
9. Requiring, for a grant of citizenship for an adopted person, that the adoption not have circumvented international adoption law.

The amendments to the security and fraud provisions include:

1. Expanding the prohibition against granting citizenship to include persons who are charged outside Canada for an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament or who are serving a sentence outside Canada for such an offence;
2. Expanding the prohibition against granting citizenship to include persons who, while they were permanent residents, engaged in certain actions contrary to the national interest of Canada, and permanently barring those persons from acquiring citizenship;
3. Aligning the grounds related to security and organized criminality on which a person may be denied citizenship with those grounds in the Immigration and Refugee Protection Act (S.C. 2001, c. 27) and extending the period during which a person is barred from acquiring citizenship on that basis;
4. Expanding the prohibition against granting citizenship to include persons who, in the course of their application, misrepresent material facts and prohibiting new applications by those persons for a specified period;
5. Increasing the period during which a person is barred from applying for citizenship after having been convicted of certain offences;
6. Increasing the maximum penalties for offences related to citizenship, including fraud and trafficking in documents of citizenship;
7. Providing for the regulation of citizenship consultants;
8. Establishing a hybrid model for revoking a person’s citizenship in which the Minister will decide the majority of cases and the Federal Court will decide the cases related to inadmissibility based on security grounds, on grounds of violating human or international rights or on grounds of organized criminality;
9. Increasing the period during which a person is barred from applying for citizenship after their citizenship has been revoked;
10. Providing for the revocation of citizenship of dual citizens who, while they were Canadian citizens, engaged in certain actions contrary to the national interest of Canada, and permanently barring these individuals from reacquiring citizenship; and
11. Authorizing regulations to be made respecting the disclosure of information.

The amendments to the provisions governing the processing of applications and the review of decisions include:

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

Bill C-24 also makes related amendments to the Federal Courts Act (R.S.C., 1985, c. F-7) and the Immigration and Refugee Protection Act.

As previously reported, on May 10, 2013, Citizenship and Immigration Canada (“CIC”) announced a proposed regulatory amendment to the definition of “dependent child.”  Once enacted, it would reduce the upper age limit for dependent children from “under 22” to “under 19” and would remove the exception for children 19 or older who are financially dependent on their parents and are enrolled in full-time studies.  However, it would not eliminate the exception for children who, regardless of age, have depended on their parents for financial support because of a mental or physical condition.

At the time of the initial announcement, CIC had proposed an effective date of January 1, 2014.  However, CIC did not actually announce the effective date of the proposed change until June 23, 2014.  According to this recent announcement, the new definition of dependent child became effective as of August 1, 2014.

Permanent residence applications that were already pending prior to August 1, 2014, will still be subject to the prior definition of dependent child.  However, most permanent residence applications filed on or after August 1, 2014, will be subject to the new definition.

The regulatory amendments contain transitional measures that allow certain applicants under multi-step permanent resident immigration programs, who: (1) were already in the immigration process on August 1, 2014; but (2) who had not yet submitted their application for permanent residence; to have their applications completed based on the previous definition of dependent child.  These transitional measures will apply to certain groups, including the following:

1. Provincial Nominee Program applicants;
2. Applicants who have applied under one of Quebec’s economic programs;
3. Live-in caregivers;
4. Refugees abroad and refugee claimants;
5. Quebec humanitarian cases;
6. Parents or grandparents whose sponsorship applications were received before November 5, 2011; and
7. Privately sponsored refugees whose sponsorship applications were received before October 18, 2012.

In addition, to ensure that children who meet the definition of dependent child at the first stage of a multi-step permanent resident immigration program remain eligible during immigration processing; the child’s age will be “locked in” at the first formal step of the immigration process.  For example, the age of a child whose parent applies to the Provincial Nominee Program will be “locked in” on the date that the application for nomination is made to the province.

The full text of the regulatory amendments appears here.

Introduction

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

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

The International Mobility Program

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

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

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

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

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

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

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

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

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

Changes to Specific Exemptions

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

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

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

The Temporary Foreign Worker Program

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

Use of Wage Instead of National Occupation Codes

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

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

New LMIA Process

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

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

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

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

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

Refusing Applications in Areas of High Unemployment

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

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

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

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

Reducing the Duration of Work Permits [Implementation: Immediate]

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

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

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

Changing the Provincial/Territorial Temporary Foreign Worker Annexes

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

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

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

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

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

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

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

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

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

Foreign Pilots in Canada [Implementation: Immediate]

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

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

New Job Matching Service

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

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

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

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

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

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

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

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

Increased Number and Scope of Inspections [Implementation: Immediate]

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

More Criminal Investigations [Implementation: Autumn 2014]

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

Improved Information Sharing [Implementation: Autumn 2014]

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

Blacklist, Suspension and Revocation [Implementation: Fall 2014]

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

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

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

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

Increased LMIA Application Fee [Implementation: Immediate]

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

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

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

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

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

Conclusion

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