On November 14, 2013, Canada’s Citizenship and Immigration Minister Chris Alexander announced that, effective immediately, Czech nationals will no longer require a temporary resident visa to visit Canada.  Czech nationals can now stay in Canada for up to six months visa-free, which is consistent with all other visa exempt nationals.  This reverses Canada’s previous decision to impose visa requirements on Czech nationals, which came into effect on July 14, 2009.

At that time, Citizenship and Immigration Canada (“CIC”) justified its decision based on the fact that nearly 3,000 refugee claims had been filed by Czech nationals since the visa requirement was lifted in October 2007.  In contract, there were less than five such claims in 2006 when the visa requirement was still in place.  At the time that the visa requirement was reinstated in 2009, the Czech Republic was the second top source country for refugee claims.

CIC has stated that a recent visa policy review of the Czech Republic has revealed that it now meets the criteria for a visa exemption.  Visa policy reviews are based on several criteria, including a country’s immigration issues (such as violation rates and asylum claims), the integrity of a country’s travel documents, safety and security issues, border management, human rights, and bilateral relations.

CIC further justified its decision to lift the visa requirement by referring to recent changes in Canada’s refugee system.  In particular, claimants from the Czech Republic will be processed more quickly as it is a designated country of origin, and those whose claims are rejected will be removed from Canada within a few months.

As previously reported, on March 30, 2013, Citizenship and Immigration Canada (“CIC”) published Ministerial Instructions that established the Start-Up Visa Program (“SUVP”).[1] When initially established, the SUVP included a Venture Capital stream and an Angel Investor stream.  However, on October 26, 2013, CIC published new Ministerial Instructions (the “New Instructions”), which expanded the SUVP to include business incubators.[2] It also began accepting applications under this new stream on October 26, 2013.

Under the Business Incubator stream, CIC will designate eligible business incubator programs in consultation with the Canadian Association of Business Incubation.  At the present time, the following entities are eligible business incubators:

• Communitech;
• GrowLab;
• Innovacorp;
• Innovate Calgary; and
• Toronto Business Development Centre.

Under the existing SUVP, designated angel investor groups must confirm that they are investing at least $75,000.00 in the applicant’s qualifying business.  Similarly, designated venture capital funds must confirm that they are investing at least $200,000.00 in the applicant’s qualifying business.  However, a business incubator must only confirm that it is accepting the applicant’s qualifying business into its business incubator program.  Otherwise, the requirements of the Business Incubator stream are similar to those that apply to the Angel Investor and Venture Capital streams.

The New Instructions also designated the following additional entities as eligible venture capital funds, as of October 26 2013:

• Canadian Accelerator Fund Ltd.;
• Lumira Capital;
• MaRS Cleantech Fund LP;
• Real Ventures; and
• Rogers Venture Partners.

As the SUVP is a pilot program established under Section 14.1 of the Immigration and Refugee Protection Act (the “Act”), no more than 2,750 applications may be processed per year.  Section 14.1 also limits the duration of the pilot program to five years.

As the SUVP initially began accepting applications on April 1, 2013, it will sunset on March 31, 2018.  However, if the pilot program proves successful, the Canadian Government may amend the Act to establish a permanent SUVP before this date.

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[1] http://gazette.gc.ca/rp-pr/p1/2013/2013-03-30/html/notice-avis-eng.html.

[2] http://www.gazette.gc.ca/rp-pr/p1/2013/2013-10-26/html/notice-avis-eng.html.

Introduction

The media recently reported on an incident involving a British Columbia woman who admitted to a United States Customs and Border Protection (“USCBP”) officer that she had recently smoked marijuana.  Although she had never been convicted of any criminal offense, this admission alone was sufficient grounds to ban her from entering the United States.  The incident raised some interesting legal points, many of which will apply equally to business travellers.  A more detailed discussion of these issues appears below.

Applicable Law

The Immigration and Nationality Act of 1952[1] (“INA”) contains several distinct grounds of inadmissibility, which relate to criminal conduct; many of these grounds of inadmissibility apply even where no conviction occurs.  For example, INA §212(a)(2)(A)(i) states that any alien (i.e. foreign national) who is convicted of, or who admits having committed, or who admits to having committing acts which constitute the essential elements of:

(I) A crime involving moral turpitude[2] (other than a purely political offense) or an attempt or conspiracy to commit such a crime; or

(II) A violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance;

is inadmissible.  The majority of criminal offenses that result in inadmissibility to the United States will fall under INA §212(a)(2)(A)(i).

Once a foreign national is found to be inadmissible based on an admission, they are treated in the same manner as someone who has actually been convicted of the crime.  In other words, the foreign national will require a non-immigrant waiver of inadmissibility under INA §212(d)(3) before they may enter the United States again.

Of course, not all admissions legally result in inadmissibility to the United States.  In the precedent decision of Matter of J[3], the Board of Immigration Appeals (“BIA”) concluded that the following rules needed to be observed in admission cases involving moral turpitude offenses:

a) It must first be established that under the law where the act was alleged to have been committed that it is a crime.

b) An adequate definition of the crime, including all essential elements, must first be given to the alien.  This must conform to the law of the jurisdiction where the offense is alleged to have been committed, and it must be explained in understandable terms.

c) The alien must then admit all the factual elements, which constitute the crime.

d) The alien must thereafter admit the fact that he has committed the crime – in other words, the legal conclusion.[4]

e) The admission by the alien of the crime must be explicit, unequivocal, and unqualified.

f) It must also appear from the statute and statements of the alien that the crime which he has admitted committing involves moral turpitude.  It is not necessary that the alien admit that the crime involves moral turpitude.

In the subsequent precedent decision of Matter of K, the BIA again confirmed that a valid admission of a crime for immigration purposes requires that the alien be given an adequate definition of the crime, including all essential elements, and that it be explained in understandable terms.  The BIA affirmed the rules described in Matter of J, except it clarified that under the current statute it was no longer necessary for the alien to admit the legal conclusion that he had committed the particular crime.  As the alien in that case was not given any definition of the crime and was not advised of the essential elements of that offense, the BIA held that he had not made an admission that would result in his inadmissibility.

The above rules were considered in relation to controlled substance violations in Matter of Amar Kumar Pani[5].  In that case, the alien was a citizen of India and a landed immigrant of Canada who held J-1 status.  Upon returning to the United States, he was detained after U.S. Customs officials found 32 grams of marijuana in his possession.  However, no criminal charges were ever filed.  The BIA affirmed the principles described in Matter of K.  The former Immigration and Naturalization Service had attempted to distinguish this line of cases on the basis that they related to crimes involving moral turpitude rather than controlled substance offenses.  However, the BIA disagreed.  A similar conclusion was reached in Matter of Luis Fernando Estrada-Gonzales[6], where the alien was found to be in possession of 4 grams of marijuana and 0.5 grams of cocaine at the time of his application for admission.  Clearly, the principles described Matter of J, as modified by Matter of K, are equally applicable to controlled substance violations.

Notwithstanding the above decisions, in practice, USCBP officers at ports of entry tend to ignore the technical requirements described in the above decisions.  If a foreign national admits to a USCBP officer that they have committed an offense involving moral turpitude or a controlled substance, they can expect to be barred from the United States.

Although it may be possible to argue the technical requirements of the above BIA decisions during a removal hearing (if available), even if the foreign national successfully argues that his or her initial admission did not result in inadmissibility, USCBP will still know that the offense was committed.  Nothing prevents USCBP from asking about the offense again during the foreign national’s next trip to the United States.  At that time, USCBP officers can take appropriate steps to ensure that they comply with the requirements of the above BIA decisions.  Once the foreign national admits to the offense under those circumstances, it will fall under INA §212(a)(2)(A)(i) and they will require a non-immigrant waiver of inadmissibility at that time.

Responding to USCBP Questions

Silence or failure to volunteer information does not constitute a material misrepresentation under INA §212(a)(6)(C)(i).  However, a truthful but incomplete answer can constitute a material misrepresentation if it “tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible.”[7] In light of the above, it is not advisable to falsely deny the prior commission of an offense or to conceal it by providing truthful, but incomplete, responses to USCBP’s questions.

If a foreign national is asked if they have ever committed an offense (whether or not it resulted in a conviction), where there is clearly no rational basis for the question being asked, they may wish to consider the option of politely telling the USCBP officer that the question is inappropriate and that they do not wish to answer it.  Although USCBP officers have considerable discretion regarding what questions they may ask when determining the admissibility of arriving travellers, those travellers are not legally compelled to answer questions.

A foreign national who refuses to answer USCBP’s questions will almost certainly be denied admission to the United States; they will also encounter problems if they attempt to enter the United States in the future.  However, the foreign national will at least have the opportunity to seek advice from legal counsel before applying for admission to the United States again.  Although legal counsel may ultimately recommend that the foreign national admit to the offense and seek a non-immigrant waiver of inadmissibility, at least the decision to do so will be based on sound legal advice.

Of course, a distinction should be made between USCBP officers based at Canadian Airports and USCBP officers located along the Canada-U.S. border.  USCBP officers at Canadian Airports do not have the right to detain foreign nationals; the most that they can do is deny that person’s admission to the United States.  However, USCBP officers along the Canada-U.S. land border have greater powers because they are located within United States territory.  For example, USCBP officers along the Canada-U.S. border have the ability detain arriving travellers during inspection and the ability to impose a five-year expedited removal order under INA §235(b)(1).

That said, a foreign national’s mere refusal to respond to a question that they claim is inappropriate, without further evidence, should not ordinarily result in an expedited removal order; it is more likely that the foreign national will simply be denied entry and returned to Canada.  Of course, if faced with an expedited removal bar, it may be preferable to just admit to the offense and undertake to apply for a non-immigrant waiver.

Conclusion

In summary, foreign nationals who are arbitrarily asked if they have every committed a criminal offense may wish to consider the option of refusing to answer the question and requesting permission to withdraw their application for admission.  Once the foreign national has returned to Canada, they can seek legal advice and, if necessary, apply for a non-immigrant waiver before requesting admission to the United States again.

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[1] Pub. L. 82–414, 66 Stat. 163.

[2] The term “moral turpitude” generally refers to inherently immoral acts such as theft, fraud, etc.

[3] 2 I. & N. Dec. 285 (BIA 1945).

[4] This particular requirement was later eliminated as a result of Matter of K, 7 I. & N. Dec. 594 (BIA 1957).

[5] 19 Immig. Rptr. B1-142 (BIA 1998).

[6] 24 Immig. Rptr. B1-249 (BIA 2002).

[7] Matter of S- and B-C, 9 I. & N. 436.

An updated article on the Canadian experience class is now available at: http://www.americanlaw.com/canadianexperienceclass.html.

Background

As previously discussed, on April 29, 2013, the Minister of Human Resources and Skills Development (“HRSDC”) and the Minister of Citizenship, Immigration and Multiculturalism announced that they would be introducing numerous changes to the Temporary Foreign Worker Program (“TFWP”). Employment and Social Development Canada (“ESDC”), formerly known as HRSDC, has now announced changes to the Labour Market Opinion (“LMO”) application process, which are effective as of July 31, 2013. Each of these changes is described below.

LMO Application Fee

Effective July 31, 2013, employers who submit LMO applications on behalf of Temporary Foreign Workers (“TFWs”) will be required to pay a processing fee of $275.00CAD for each position requested; prior to this date, no fee applied to the filing of an LMO application. However, this LMO processing fee will not apply to positions under the Seasonal Agricultural Worker Program (“SAWP”), the Agriculture Stream, or on-farm primary agricultural positions listed under National Occupational Classification (“NOC”) Codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611.

Employers must now complete the LMO application and the processing fee payment form, and submit both items along with the required processing fee payment. The total payment must reflect the number of TFW positions requested on the LMO application.  The processing fee payment (in Canadian dollars) can be made by:

• Certified cheque (payable to the Receiver General for Canada);
• Money order (postal or bank)
• Visa;
• MasterCard; or
• American Express.

Employers and third-party representatives may not attempt to recover the LMO processing fees from the TFWs who are the beneficiaries of the LMO application.

ESDC must receive the entire processing fee along with the required documents before it will assess the employer’s LMO application. LMO applications received prior to July 31, 2013 will not be subject to the new processing fee. However, applications received with a postmark dated July 31, 2013 (or later) without the processing fee will not be assessed.

There will be no refund in the event of a negative LMO or if the application is withdrawn or cancelled since the fee covers the process to assess an application and not the outcome. Refunds will only be available if a fee was collected in error (i.e. an incorrect fee amount was processed).

Language Restrictions

Effective July 31, 2013, amendments to the Immigration and Refugee Protection Regulations (SOR/2002-227) come into force. As a result of these amendments, English and French are now the only languages that can be identified as a job requirement, both in LMO requests and in advertisements by employers applying to hire TFWs, unless employers can demonstrate that another language is essential for the job. However, the language restriction does not apply to positions under the SAWP, the Agriculture Stream, or on-farm primary agricultural positions listed under NOC Codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611.

Advertising requirements are the primary mechanism used to ensure that Canadians are aware of employment opportunities and the language restriction will help ensure that Canadians are given every opportunity to apply for available jobs. The onus will be on employers to demonstrate that a language other than French or English is an essential requirement of the job.

Employers advertising a job for a position that legitimately requires a language other than English or French must clearly demonstrate, in writing, that the language requested is consistent with the regular activities of the job (i.e. a translation company hiring a translator to work in a language other than English or French, or a tour company catering to foreign tourists only in a non-official language).

ESDC staff will assess the employer’s rationale for requesting a language other than English or French in relation to the occupation and information included in the LMO application. It will issue a negative LMO if the rationale does not demonstrate that the requested non-official language is an essential requirement of the job.

New Advertising Requirements

As of July 31, 2013, ESDC has increased the minimum recruitment requirements that employers will need to follow when submitting an LMO application. However, the new advertising requirements will not apply to:

• The Live-in Caregiver Program;
• Positions related to on-farm primary agriculture (specifically under NOC Codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611);
• The SAWP; or
• The Agricultural Stream.

Employers must advertise available positions in Canada for at least four weeks before applying for an LMO; this requirement applies to all advertising methods. Previously, employers were only required to advertise for two weeks during the three months prior to the filing of the LMO application. In addition, for NOC 0 and A occupations, employers were permitted to conduct similar recruitment activities consistent with the practice within the occupation (with no minimum period specified), instead of advertising the position in the national Job Bank; the two week advertising period only applied if the employer chose to advertise in the national Job Bank.

Higher-Skilled Occupations

Under the new requirements, employers seeking to hire a TFW in a higher-skilled occupation (NOC 0, A, or B) must advertise:

• On the national Job Bank or its provincial/territorial counterpart in British Columbia, Saskatchewan, the Northwest Territories, Quebec or Newfoundland and Labrador:
  1. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.
  2. The advertisement must remain posted to actively seek qualified Canadians and permanent residents until the date that an LMO is issued.
• Using two or more additional methods of recruitment consistent with the normal practice for the occupation:
  1. As a minimum, employers must choose one method that is national in scope, since people in higher-skilled positions are often mobile and willing to re-locate for work; and
  2. Employers can choose one or more recruitment methods among these: (i) print media (national or provincial/territorial newspapers, national journals, magazines with national coverage, specialized journals, professional associations magazines, newsletters, etc.); (ii) general employment websites (i.e. canadastop100.com, vault.com, workopolis.com, monster.ca, etc.); and (iii) specialized websites dedicated to specific occupation profiles (i.e. accounting, marketing, biotechnology, education, engineering, etc.).
  3. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.

Lower-Skilled Occupations

Under the new requirements, employers seeking to hire a TFW in a lower-skilled occupation (NOC C or D) must advertise:

• On the national Job Bank or its provincial/territorial counterpart in British Columbia, Saskatchewan, the Northwest Territories, Quebec or Newfoundland and Labrador:
  1. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.
  2. The advertisement must remain posted to actively seek qualified Canadians and permanent residents until the date that an LMO is issued.
• Using two or more additional methods of recruitment consistent with the normal practice for the occupation:
  1. Employers can choose 1 or more recruitment methods among these: (i) print media (local newspapers, job boards, youth magazines etc.); and (ii) general employment websites (jobboom.com, workopolis.com, monster.ca, etc.).
  2. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.
• Targeting underrepresented groups:
  1. Employers can: (i) try to recruit workers from local or provincial/territorial employment centres, service centres for Aboriginal youth, new immigrants and people with disabilities; (ii) offer bursaries to attract students or youth, pursue online recruitment strategies, or undertake ongoing advertising and interviews in order to maintain a pre-screened applicant pool.

Content of Advertisement

The advertisement must include the following information:

• Company operating name;
• Business address;
• Title of position;
• Job duties (for each position, if advertising more than one vacancy);
• Terms of employment (e.g. project based, permanent position);
• Wage (refer to Wages, Working Conditions and Occupations tab to determine the established rate for the specific occupation and geographic area);
• Benefits package being offered (if applicable);
• Location of work (local area, city or town);
• Contact information (telephone number, cell phone number, email address, fax number, or mailing address); and
• Skills requirements:
  1. Education; and
  2. Work experience

Third-party representatives or recruiters can be the main contact for any job advertisements posted on behalf of the employer. However, the ad must be listed under the employer’s Canada Revenue Agency Business Number.

Proof of Advertisement

Employers will be required to demonstrate that they meet the advertising requirements by providing proof of advertisement and the results of their efforts to recruit Canadian citizens and permanent residents (i.e. a copy of advertisement and information to support where, when and for how long the position was advertised). Records of the employers’ efforts should be kept for a minimum of 6 years. ESDC may request these documents in connection with future assessments.

New LMO Application Form

As of July 31, 2013, the new LMO application form includes additional questions that must be answered by the employer. These questions were added to help ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs.

On July 2, 2013, the Citizenship, Immigration and Multiculturalism Minister (the “Minister”) announced that 10-year ePassports, also known as biometric passports, will now be available to Canadian citizens.  The Minister also announced that Citizenship and Immigration Canada (“CIC”) would immediately assume primary responsibility for Passport Canada, which had previously been part of the Department of Foreign Affairs and International Trade.

The new ePassport contains new security features designed to make the passport tamper-proof.  These features include:

• An electronic chip (“e-chip”) embedded in the back cover, which will store the same personal information that appears on Page 2 of the Passport (except for the signature), the photo and a digital security feature that proves the passport was issued by the Government of Canada; and
• New images in the inside pages that provide additional security.

Over 100 countries, including the United States, the United Kingdom and France, already issue ePassports to their citizens.

According to CIC, when information is first stored on the e-chip in the passport, the e-chip is electronically locked so that information cannot be modified.  CIC also states that the information on the e-chip cannot be read unless the ePassport is held within 10 centimetres of an ePassport reader, open to page 2, and the machine-readable zone has first been read.  Canadians who would like to see the information stored on their e-chip to make sure it is accurate may do so by visiting one of Passport Canada’s 34 regional offices.

At border crossings equipped with ePassport readers, the ePassport is placed into a scanner that reads the machine-readable zone, which allows the e-chip to be read also. The machine also checks other security features, such as the country-specific signature. Canada Border Services Agency authorities that do not yet have ePassport readers in place will continue to examine travelers’ passports by examining existing security features such as the holographic images.

For an adult (age 16 or older), a 5-year ePassport for will cost $120.00 and a 10-year ePassport will cost $160.00. For a child (up to 15 years old), the cost will be $57.00.

Background

In early April 2013, it was reported that forty-five Royal Bank of Canada (“RBC”) employees in Toronto would be losing their jobs because the company had outsourced several technology services to iGate, a California-based firm that specializes in sending jobs offshore.  RBC faced a severe public backlash over the incident.  Questions were also raised regarding how iGate had brought its own employees into Canada under the Temporary Foreign Worker Program (“TFWP”), so that they could be trained at RBC offices.

As a result of the RBC incident, the Government of Canada announced several changes to the TFWP.  On April 29, 2013, the Minister of Human Resources and Skills Development (“HRSDC”) and the Minister of Citizenship, Immigration and Multiculturalism, announced that they were introducing changes, which would:

• Immediately require employers to pay temporary foreign workers at the prevailing wage by removing the existing wage flexibility;
• Immediately suspend the Accelerated Labour Market Opinion (“A-LMO”) process;
• Increase the Government of Canada’s authority to suspend and revoke work permits and Labour Market Opinions (“LMOs”) if the program is being misused;
• Add questions to employer LMO applications to ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs;
• Ensure employers who rely on temporary foreign workers have a firm plan in place to transition to a Canadian workforce over time through the LMO process;
• Introduce employer fees for the processing of LMOs and increase the fees for work permits so that the taxpayers are no longer subsidizing the costs; and
• Identify English and French as the only languages that can be used as a job requirement.

Some of these changes were implemented administratively.  Other changes will require regulatory amendments before they can be implemented.

Recently Implemented Administrative Changes

As previously reported, HRSDC announced last year that it would permit employers to pay the temporary foreign worker (“TFW”) up to 15% less than the average wage for higher skilled occupations (NOC Skill Levels 0, A, or B) or 5% less than the average wage for lower skilled occupations (NOC Skill Levels C or D), if they could document that their Canadian workers were also receiving the same wage.  This flexibility was due to the fact that the average wage figures established by Statistics Canada were not always appropriate.   For example, they did not consider a particular worker’s level of experience in the field or the presence of a very large employer in the region that paid above average wages to its workers.  In any event, HRSDC has now removed this wage flexibility.  Ironically, this may require certain employers to pay TFWs more than their Canadian counterparts.

Also, as previously reported, HRSDC announced last year that it was implementing an A-LMO initiative that would allow certain employers, who had an established track record of compliance, to obtain expedited processing of their LMOs.  Although the A-LMO program was considered a success, HRSDC has now suspended it.  Although the announcement on April 29 suggested that the suspension of the A-LMO program was temporary, it is unknown when the program will resume.

In addition, HRSDC is now requiring employers who have submitted an LMO application to complete a Canadian Labour Market Impact Questionnaire, which asks questions about whether the entry of the TFW will lead to job losses due to outsourcing or offshoring, or otherwise facilitate outsourcing or offshoring.  Presumably, answering “yes” to one or more of these questions will result in a denial.

Finally, HRSDC already appears to be prohibiting the use of foreign languages as a job requirement.  However, knowledge of English and/or French can still be used as job requirement, when appropriate.

Proposed Regulatory Amendments

As mentioned above, some of the changes previously announced by the Government of Canada will require regulatory amendments before they can be implemented.  In furtherance of this objective, Citizenship and Immigration Canada (“CIC”) published proposed regulatory amendments to the Immigration and Refugee Protection Regulations (“IRPR”), SOR/2002-227, in the Canada Gazette on June 8, 2013.  These proposed amendments are described in greater detail below.

Conditions Applicable to All Work Permits

Under the proposed regulations, all employers will be required to demonstrate that they are complying with (or that they have complied with) certain conditions during the period of the TFWs work permit:

• The employer (other than the employer of a live-in caregiver) must be actively engaged in the business in respect of which the offer of employment was made;
• The employer must comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the TFW works;
• The employer must provide a TFW with employment in the same occupation as that set out in that TFW’s offer of employment and with wages and working conditions that are substantially the same as, but not less favourable than, those contained in the offer;
• The employer must make reasonable efforts to provide TFWs with a work place that is free of abuse, specifically:
  • Physical abuse, including assault and forcible confinement,
  • Sexual abuse, including sexual contact without consent,
  • Psychological abuse, including threats and intimidation, and
  • Financial abuse, including fraud and extortion;
  • The employer must not be convicted of an offence of human trafficking under the Immigration and Refugee Protection Act, unless there has been a final determination of an acquittal or a pardon/record suspension has been granted; and
  • The employer must not be convicted, or discharged, under the Criminal Code of any of the following offences, unless there has been a final determination of an acquittal or a pardon/record suspension has been granted:
    • Trafficking in persons (or related offence);
    • An offence of a sexual nature (or an attempt) against an employee;
    • An offence causing death or bodily harm to an employee;
    • Uttering threats to cause death or bodily harm against an employee; or
    • An offence involving the use of violence (or an attempt) against an employee.

In addition, the employer must not be convicted outside Canada of an offence that would constitute one of the above offences if committed in Canada, unless there has been a final determination of an acquittal.

These conditions will typically be enforced by CIC.

Conditions Applicable to LMO-Based Work Permits

Where an LMO is required, employers who are issued a positive LMO will be required to comply with the several conditions during the period of foreign national’s employment (or, where applicable, during any other period that has been agreed to by the employer and HRSDC).  As appropriate, employers will be required to demonstrate that they are complying with, or have complied with, one or more of the following conditions:

• Employers must ensure that the employment of the foreign national will result in direct job creation or job retention for Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
• Employers must ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
• Employers must make reasonable efforts to hire or train, or hire or train, Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit; and
• In the case of an employer who employs a TFW as a live-in caregiver, the employer must:
  • Ensure that the TFW resides in a private household and provides, without supervision, the care for which the TFW was employed;
  • Provide the TFW with adequate furnished and private accommodations in the household; and
  • Have sufficient financial resources to pay the TFW the wages offered.

The exact conditions with which a particular employer will be required to comply depend on their specific LMO and will be established by HRSDC prior to the issuance of the LMO.  These conditions will typically be enforced by HRSDC.

Improved Compliance Verification

The current regulations provide that returning employers seeking to hire TFWs, including live-in caregivers, are required to demonstrate compliance before they are granted a positive LMO or the employer is granted a work permit.  CIC and HRSDC may examine previous offers of employment within the two years preceding the date of receipt of a new LMO or work permit application and the employer may be required to produce evidence of compliance (i.e. that they provided each TFW with substantially the same wages and working conditions as those set out in their offer of employment).  However, CIC and HRSDC can only verify compliance at the time that a new LMO or work permit application is submitted by the employer.  As a result, unless a subsequent LMO or work permit is filed, it is impossible to verify whether the employer has complied with the terms of a previous job offer.

Under the proposed amendments, employers will now be required to demonstrate that, within the six years preceding the date of receipt of a new LMO or work permit application, that they provided each TFW with substantially the same wages and working conditions as, but not less favorable than, those set out in their previous offer of employment.  Employers will also be required to retain documents that demonstrate their compliance with any conditions that were imposed on them, for a period of six years after the date that the TFWs work permit expires.

In addition, the proposed amendments will allow a compliance verification inspection in the following cases:

• A CIC officer or the Minister of HRSDC has a reason to suspect that the employer is not complying with or has not complied with any conditions imposed;
• The employer has not complied with conditions in the past; or
• The employer is randomly chosen for verification compliance.

In other words, compliance verification will no longer be triggered solely by the filing of a subsequent LMO or work permit application by the employer.  It can be initiated at any time during the compliance verification period.

New Verification Compliance Inspection Powers

Under the proposed amendments, for the purposes of verifying compliance, CIC or HRSDC will have the authority to require an employer to report at any specified time and place in order to answer questions and provide documents that relate to compliance with any condition imposed on it.  HRSDC may also exercise its authority to verify the conditions that would typically be enforced by CIC, at the request of a CIC officer.

More significantly, CIC and HRSDC will have the authority to enter and inspect any premises or place where the TFW works, without the consent of the employer.  Upon entering the premises or place where the TFW works, CIC or HRSDC may:

• Ask the employer and any person employed by the employer any relevant questions;
• Require from the employer, for examination, any documents found in the premises or place;
• Use copying equipment in the premises or place, or require the employer to make copies of documents, and remove the copies for examination or, if it is not possible to make copies in the premises or place, remove the documents in order to make copies;
• Take photographs and make video or audio recordings;
• Examine anything in the premises or place;
• Require the employer to use any computer or other electronic device in the premises or place in order to allow the officer to examine any relevant document contained in or available to it; and
• Be accompanied or assisted in the premises or place by any person required by CIC or HRSDC.

The above powers may be exercised by CIC or HRSDC without the consent of the employer and without a warrant.  There is only one exception described in the proposed amendments – if the TFW is employed at a dwelling house (for example, in the case of a live-in caregiver), CIC and HRSDC may only enter without the occupant’s consent if they are in possession of a warrant issued pursuant to the regulations.

Information Sharing Between CIC and HRSDC

The proposed regulatory amendments include an information-sharing provision that will allow the disclosure of information from CIC to HRSDC, in relation to an application for a work permit or an employer’s compliance with the conditions imposed upon them.  They also include a provision that will allow the disclosure of information from CIC to the competent authorities of the provinces and territories in relation to the above matters.

Miscellaneous Amendments

The proposed regulatory amendments will also implement the following miscellaneous changes:

• Subsection 203(1.1) of the IRPR, which describes circumstance in which an employer’s failure to comply with the conditions imposed is justified, will be amended to include “force majeure” as an additional justification ground.
• The issuance of an LMO or work permit will be prohibited where the foreign national intends to work for an employer who, on a regular basis, offers stripping, erotic dance, escort services, or erotic massages.  The Ministerial Instructions issued in 2012 already prohibited the processing of work permit applications filed by TFWs who would be working in a sector where there were “reasonable grounds to suspect a risk of sexual exploitation of some workers.”
• All temporary residents will be prohibited from entering into an employment agreement or extending the term of an employment agreement with an employer who, on a regular basis, offers stripping, erotic dance, escort services, or erotic massages.
• The prevailing wage rate will now be determined by HRSDC, by taking into account the rates that are made publicly available by the Minister of HRSDC and the wages paid to Canadian citizens and permanent residents by the employer making the offer, if that information is provided by the employer on request of that Minister.
• Currently, work permits may not be issued when the specific work that the foreign national intends to perform is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute, except where all or almost all of the workers involved in the labour dispute are not Canadian citizens or permanent residents and the hiring of workers to replace the workers involved in the labour dispute is not prohibited by the Canadian law applicable in the province where the workers involved in the labour dispute are employed.  To ensure consistent assessments of this factor, the above exception will be eliminated.

Effective Date of Regulatory Amendments

The above regulatory amendments will come into force on the day that they are registered.

A new article on Canada’s New Federal Skilled Worker Program has now been published in my Canadian Immigration Handbook.

Introduction

On May 10, 2013, Citizenship and Immigration Canada (“CIC”) announced proposed regulatory amendments that will narrow the definition of “dependent child” by reducing the age limit to children under the age of 19 and removing the exception for full-time students.  Once implemented, this proposed change will adversely affect the dependent children of all prospective immigrants to Canada.

Current Definition

According Section 2 of the current Immigration and Refugee Protection Regulations (SOR/2002-227), the term “dependent child” means a child who:

1. Has one of the following relationships with the parent: (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent; or (ii) is the adopted child of the parent; and
2. Is in one of the following situations of dependency: (i) is less than 22 years of age and not a spouse or common-law partner; (ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority and actively pursuing a course of academic, professional or vocational training on a full-time basis; or (iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

In other words, the current definition of “dependent child” includes the following:

1. A child who is under 22 years of age and who is not a spouse or common law partner;
2. A child who is 22 years of age or older if that person has depended on the financial support of the parent(s) and has attended school continuously as a full-time student since before the age of 22 (or, if married or in a common-law relationship before that age, since becoming a spouse or common-law partner); and
3. A child who is 22 years of age or older if that person has depended on the financial support of his or her parent(s) since before the age of 22 and is unable to support themselves financially due to a physical or mental condition.

CIC’s Rational for the Proposed Amendment

According to CIC, dependent children represent 30% of the overall immigrants admitted annually to Canada.  It further states that, based on 2012 statistics, dependents under the age of 19 constituted 90% (64,757) of all sponsored children, while those 19 years of age and older constituted 10% (7,237) of all sponsored children.

CIC claims that older dependent children (those who arrive between the ages 19 and 21 years old) have lower economic outcomes than those who arrive in Canada at a younger age (between 15 and 18 years old).  It also claims that older immigrants have a more challenging time fully integrating into the Canadian labour market and this is more evident for immigrants who are not selected based on their own merits (i.e. dependent children).

In addition, CIC claims that fraudulent school attendance documentation is prevalent in some countries and verification of attendance and enrolment can be labour-intensive.

Effect of the Proposed Amendment

Based on the above, CIC is proposing to limit the definition of “dependent children” to those under the age of 19.  It is also proposing to eliminate the exception for full-time students.  However, the exception for older dependents who are unable to support themselves due to a physical or mental condition will be continued.

In addition, the proposed amendments would alter the application fees for overage dependent children in permanent residence cases.  Currently, overage dependent children (22 years old and over) are subject to the same processing fees as spouses and partners of principal applicants; the fee for these dependent children is $550.00CAD while the fee for younger dependants (under 22 years old) is only $150.00CAD.

Once the proposed amendment has been implemented, the only overage dependent children (19 years old and over) will be those who are financially dependent on their parents due to a physical or mental condition. As a result, proposed amendments will reduce the permanent residence application fee for these overage dependent children to $150.00CAD, the same amount that is charged for dependent children under the age of 19.

The definition of “dependent child” contained in Section 2 of the Immigration and Refugee Protection Regulations also applies to dependents of temporary residents such as foreign workers and students.  Although the announcement discusses the proposed amendment only in the context of permanent residence cases, at the present time it is uncertain whether CIC intends to also apply this definition in temporary resident cases.

Proposed Implementation

CIC is proposing an effective date of January 1, 2014, for the above amendment.  For applicants who submit a sponsorship application and/or permanent resident application on or after this date, the proposed new definition for dependent child would apply. For applicants who submitted a permanent resident application prior to January 1, 2014, the current definition of dependent child would continue to apply.

Transitional provisions are also proposed for applicants who would already be in the immigration application process on January 1, 2014, but who may not yet have submitted the permanent resident portion of their immigration application.  The transitional provisions would allow these persons to have their permanent resident applications, including their dependent children, finalized under the criteria in force at the time that their immigration applications were initiated.

The age of dependants is locked-in at the time the permanent resident application is received by CIC.  In certain cases, applicants will have initiated their immigration process years before being in a position to submit an application for permanent residence.  Given the processing for these groups of applicants, the transitional provisions would apply in the following cases:

1. Live-in caregivers come to Canada first as temporary foreign workers, usually without their children. Most (98%) apply for permanent residence and expect to reunite with their children after having gained the required experience, years later.
2. Refugees abroad and refugee claimants have been forced to flee persecution and have little control on the destination and timing of their migration.  It may take years before they are granted protected person status and can file an application for permanent residence.
3. Persons coming to Canada under Section 25.2 of the Immigration and Refugee Protection Act (i.e. public policy consideration) often experience refugee-like situations and may also have to wait some time, once selected under these policies, before being able to submit their permanent resident applications.

In some programs, two applications must be submitted: (a) a sponsorship application, and (b) a permanent resident application. In the past, these applications under the parents and grandparents and resettlement categories could be submitted separately (i.e. the permanent resident application would follow a positive assessment of the sponsorship application).  In order to not penalize applicants who at the effective date of the amendment would not have submitted their permanent resident application, the transitional provisions would also extend to the following groups:

1. Parents and grandparents for whom a sponsorship application alone was submitted before November 5, 2011, the date on which CIC put in place a temporary pause on the acceptance of new sponsorship applications under this category as part of its Action Plan for Faster Family Reunification.
2. Refugees abroad for whom a sponsorship application alone was received before October 18, 2012.  Prior to that date, the refugee’s permanent resident application was received after CIC approved the sponsorship application.

In both cases, the permanent resident application which includes the application for the dependent child, would not have been submitted with the sponsorship application and may not have been received by CIC at the time of coming into force of the proposed new definition.

Conclusion

The proposed amendment to the definition of “dependent child” will be of significant concern for many potential immigrants, who may decide to not immigrate if their older dependent children cannot accompany them.  It is expected that there will considerable resistance to this proposed change during the next seven months.

Introduction

As previously reported, on December 19, 2012, Citizenship, Immigration, and Multiculturalism Minister Jason Kenney (the “Immigration Minister”) announced that the Federal Skilled Worker Program (“FSWP”) would once again begin accepting new applications on May 4, 2013.  However, several key details of the FSWP were not announced at that time.  These outstanding details included:

• The cap on the number of applications that would be accepted without arranged employment in the first year;
• The list of eligible occupations that would not require arranged employment (which in most cases would now mean a Labour Market Opinion); and
• The organizations that would be designated to conduct educational assessments.

Citizenship and Immigration Canada (“CIC”) has now provided these last remaining details.

Eligible Occupations and Numerical Limits

Applicants who do not have arranged employment and who do not qualify under the PhD stream will require at least one year of continuous full-time work experience in one of the listed eligible occupations.  Applicants who possess this work experience may apply without a job offer.

The eligible occupations stream will have an overall cap of 5,000 new applications and sub-caps of 300 applications in each of the 24 occupations on the list.  The list of eligible occupations, with each corresponding 2011 National Occupation Classification (“NOC”) code, is as follows:

• 0211 Engineering managers
• 1112 Financial and investment analysts
• 2113 Geoscientists and oceanographers
• 2131 Civil engineers
• 2132 Mechanical engineers
• 2134 Chemical engineers
• 2143 Mining engineers
• 2144 Geological engineers
• 2145 Petroleum engineers
• 2146 Aerospace engineers
• 2147 Computer engineers (except software engineers/designers)
• 2154 Land surveyors
• 2174 Computer programmers and interactive media developers
• 2243 Industrial instrument technicians and mechanics
• 2263 Inspectors in public and environmental health and occupational health and safety
• 3141 Audiologists and speech-language pathologists
• 3142 Physiotherapists
• 3143 Occupational Therapists
• 3211 Medical laboratory technologists
• 3212 Medical laboratory technicians and pathologists’ assistants
• 3214 Respiratory therapists, clinical perfusionists and cardiopulmonary technologists
• 3215 Medical radiation technologists
• 3216 Medical sonographers
• 3217 Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)

Educational Credential Assessment (“ECA”)

The purpose of the ECA is to determine whether the applicant’s foreign educational credential is authentic and equivalent to a completed credential in Canada.  Applicants who have Canadian educational credentials do not need an ECA, unless they are also submitting a foreign educational credential in support of their application.

As of April 17, 2013, four organizations have been designated by the Immigration Minister to provide ECA reports for purposes of immigrating to Canada under the new FSWP.  Additional organizations may be designated by CIC in the future. The designated organizations are:

• Comparative Education Service: University of Toronto School of Continuing Studies;
• International Credential Assessment Service of Canada;
• World Education Services; and,
• Medical Council of Canada.

The Medical Council of Canada has been designated only for those principal applicants who intend to apply with specialist physician (NOC Code 3111) or general practitioner/family physician (NOC Code 3112) as their primary occupation in their FSWP application.

CIC will only accept ECA reports issued after the date the organization was designated by CIC to provide ECA reports for immigration purposes (April 17, 2013). An ECA report will be valid for immigration purposes for 5 years from the date that it was issued by the designated organization.