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Canada’s New Immigration Rules 2013

Canada’s efforts to counteract an ageing population and the need for young skilled workers has led to a re-evaluation of the Federal Skilled Worker program and the introduction of new immigration rules by Citizenship and Immigration Canada (“CIC”).  The FSW program has been in suspension since July 1, 2012 while changes were being effected to the program, and the new legislation related to Federal Skilled Workers was published on December 19, 2012. These new regulations set out a three-pronged approach to attract needed talent to Canada.  CIC’s amendments reinstate an amended Federal Skilled Worker Class (“FSW”), create a new Federal Skilled Trades Class (“FST”) and reduce the Canadian experience requirement under the Canada Experience Class (“CEC”).  In the case of FST and CEC, the new regulations will take effect immediately, as of January 2, 2013. For FSW, the regulations will take effect as of May 4, 2013, at which time the program will re-open for applications.

Changes to the Federal Skilled Worker Class

The new FSW class is designed to attract young educated workers with English or French proficiency and good employment prospects in Canada.  The foreign worker’s ability to integrate into the Canadian work place is evaluated based on current employment in Canada on a work permit.   If the applicant is not employed in Canada, then he or she would be required to have an excellent score on language proficiency, education, work experience and age or adaptability.

The key changes to the FSW selection criteria include:

  • Minimum English/French language thresholds and increased points for official language proficiency, making language the most important factor in the selection process and which will result in greater disqualification based on high language requirements;
  • Increased emphasis on younger immigrants by introducing a cut off age of 35, for maximum points;
  • A mandatory assessment of foreign educational credentials to determine their equivalency to a completed educational credential in Canada. CIC will designate credential assessment organizations and regulatory bodies to conduct the assessments as part of the immigration selection process. These agencies will be announced in early 2013;
  • A removal of the traditional “arranged employment” process, which will require employers to sponsor workers based on a cumbersome Labour Market Opinion (“LMO”) Process. The LMO process requires the employer to recruit Canadians first for the position and demonstrate that such recruitment activities are in compliance with labour market conditions and average Canadian wages; and
  • Emphasis on adaptability. CIC has introduced changes to the adaptability criteria to attract workers with Canadian study and work experience and a spouse with language proficiency, which CIC believes will improve the likelihood of a family’s successful integration. The points for previous spousal study and/or work in Canada, and having relatives in Canada will remain unchanged.

The new immigration rules represent a dramatic departure from Canada’s traditionally lax point system selection criteria.  Although immigration law by its very nature involves discrimination, the new rules are remarkably ageist and favour applicants with spouses.  The likelihood of qualifying for immigration under the Federal Skilled Worker class after 35, for a single applicant, is extremely low, unless they have a government approved job offer or work or study experience in Canada.

Unknown at this time is whether the Canadian government will increase the 67 point threshold and/or what occupations will be restricted from qualifying under the FSW.  The regulations allow for both and it is not uncommon for our current Immigration Minister to surprise the legal and immigration community with drastic changes of immediate effect.

New Federal Skilled Trades Class

The CIC has identified a need for skilled tradespeople and has developed a program that specifically attracts skilled trade immigrants based on a pass/fail system.  The key elements to the application include: a valid offer of employment in Canada or a certificate of qualification from a province or territory in a qualifying skilled trade; at least two years of work experience in the occupation within the last five years; and meeting the employment requirements set out in the National Occupational Classification system, with the exception of licensing requirements. This category applies to various trades such as plumbers, carpenters, electricians and supervising trades.

The program requires that the skilled tradesperson meet the following criteria:

  1. Obtain government-approved employment in Canada, or a Certificate of Qualification from a Canadian provincial or territorial apprenticeship authority;
  2. Language proficiency minimum requirements, assessed by an independent agency which provides “conclusive” proof of the applicant’s language ability;
  3. Twenty-four months of work experience (after qualification/certification in the country where the work was performed) in the same skilled trade in the last five years; and
  4. Qualifications that satisfy employment requirements as described by the National Occupations Classification, except for certification and licensing requirements, which are difficult to obtain outside of Canada.

The greatest challenge for qualifying under this category is the first requirement, given the fact that neither obtaining an LMO or a certificate of Qualification are facile undertakings.  Without Canadian employer sponsorship or an educational/apprenticeship background (which would enable easier approval for a certificate of qualification), this immigration class will be closed to many skilled workers.  Nonetheless, if the tradesperson is able to obtain visitor entry to Canada and pass the necessary examinations for a Certificate of Qualification, then a government approved job offer will not be required.

The Canada Experience Class

CIC has amended the regulations to support an easier transition to permanent residence for Canadian foreign workers.  The Canadian work experience requirement has been reduced from 24 months to 12 months in the preceding 3 years, in occupations that require post-secondary training and education/apprenticeships, or more education. The Canada Experience Class will continue to require minimum language proficiency, depending on the category.

Labour Market Opinions

The new regulations place a substantial burden on Canadian employers to obtain a government-approved job offer (which usually means an LMO). Based on existing LMO policy, the employer LMO application requirements include a job market analysis, prevailing wage analysis, employment outlook analysis, rigorous advertising and recruitment requirements and an analysis of the genuineness of the job offer and the employer. In addition, the employer will be required to submit to ongoing government compliance reviews, which are similar to Revenue Canada audits and include penalties of jail terms and/or hefty fines. The LMO process has become increasingly difficult as a result of the world economic slowdown, which has negatively affected Canada and the Canadian labour market.  The LMO eligibility requirements are even more rigorous in the provinces which are experiencing the greatest slow down, including the province of Ontario.

New Work Permit “Bridging” System

CIC has also introduced new policy to enable certain economic class permanent residence applicants to maintain their foreign worker status and continue their employment in Canada pending receipt of a final decision on their permanent residence application. This new initiative will enable qualifying permanent resident applicants, whose permits are due to expire, to extend their work permits whilst avoiding the LMO process.  To be eligible for this category, among other things, the applicant must have received confirmation from CIC that their permanent resident application is eligible under one of the Economic Classes.
This initiative will also reduce the burden on employers to apply for LMOs in certain situations.  However, for most employers, the LMO process will nonetheless remain fundamental to the hiring of foreign workers.

Summary

Canada’s new immigration rules highlight the importance of integration by requiring minimum English/French proficiency requirements and a government-approved job offer from a Canadian employer. The Harper Government believes that the new regulations will meet the challenges created by an aging population and the emerging shortages in certain skilled trades and professions. Given the unprecedented burden that Canadian employers will experience as a result of the emphasis on LMOs, the government is considering more initiatives to ease the load on the employer by providing opportunities for them to retain foreign talent in Canada.  At this stage, however, the fact remains that Canadian employers will be expected to bear the lion’s share of the work involved in administering Canada’s immigration programs moving forward.  Whilst attracting talent may be difficult from an immigration standpoint, once in Canada, retaining the talent has become substantially easier for employers (and the talented foreign workers) as a result of the new regulatory framework.

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