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Government Publishes Express Entry Permanent Residence Application Rules

In January of 2015, the Canadian Government will roll out a new permanent residence application management process called Express Entry (EE), a two-step process which was designed to match Canadian employers with foreign workers and to streamline the application management process. The changes are intended to enable Canadian employers to recruit foreign workers permanently to Canada through a job bank matching process. The government has promised that it will process the majority of applications within six months. However, substantial planning and various pre-application processes must be completed in advance of the application process.

Applicants who qualify under the current immigration programs for Federal Skilled Workers  (FSW), Federal Skills Trades (FST) and Canada Experience Class (CEC) will be required to apply under the new two-step system and can no longer apply under the current direct channels. These applicants will be subject to a new ranking system. Provincial Nominee applications may be processed based on the status quo or through the EE process and the provinces will be provided larger immigrant quotas. Provincial Nominees may also apply through the EE process.

The EE system will have two steps:

1) Potential candidates must complete an online EE profile to be placed in a pool;
2) Once in the pool, the highest-ranked candidates will be invited to apply for permanent residence.

Both steps of the EE program utilize an online application procedure, which in appearance is innocuous. However, without extensive immigration planning, in most cases this will result in the immediate disqualification of an applicant, at stage 1, without an immigration strategy. The information requested at the first stage of the application procedure will be subject to a full documentation government audit during the second stage. Applicants will need language test results and an Educational Credentials Assessment process (ECA) prior to applying—a process which currently takes approximately 4 months.

At the first stage of the application process, generally, an applicant must have obtained at least one year of employment experience in a National Occupational Code 0, A or B to qualify and must possess an approved LMIA. Alternatively, if qualifying under FSW, FST or CEC, the applicant must achieve a sufficiently high rank, as otherwise, an LMIA may still be required for greater certainty.

Once a candidate’s EE profile is submitted, that candidate is assessed and scored utilizing a Comprehensive Ranking System (CRS). The factors that will be assessed under the CRS, include skills, work experience, language ability, education, as well as Canadian work experience and education. The CRS allows for a total of 1200 points.

Once in the pool, applicants under the EE system will be invited to proceed to the second stage to apply for permanent residence if they:

  • Have a Labour Market Impact Assessment (LMIA) from a Canadian Employer and a job offer;
  • Have received an approved nomination from the immigration program of a province or territory; or
  • Are one of the highest-ranked candidates who qualify under one of the three Federal Programs (FSW, FST or CEC) under EE.

The LMIA process must be undertaken by the Canadian employer and involves a substantial cost and time expenditure. The employer must demonstrate that Canadians and permanent residents are not available for the position. In order to demonstrate this, an employer must advertise the position in three credible venues, including the Service Canada Job Bank, and demonstrate the “genuineness” of the employment of the foreign worker. The advertisements have specific requirements and advertising periods, and the employer must provide proof of substantial recruitment efforts, employment documentation and compliance with additional employment standards and reporting obligations. Employers are also subject to warrantless on-site investigations and audits. They must prepare an extensive transition plan, when applying for an LMIA, setting out various required activities and preparing recruitment projections, based on these activities, for the hiring of Canadians and permanent residents for the occupation to be filled by the foreign worker.

In addition, Express Entry applicants would be required to conform to the NOC lead statement and a substantial number of main duties, and all essential ones, for NOC 0, A or B, furnish acceptable proof of having met these requirements in a manner compliant with the NOC, and ensure that the position matches the NOC without a finding of collusion, misrepresentation or fraud based on the employment offer.

Any inconsistencies in information could render the applicant subject to a 5 year ban from Canada, if determined as ‘misrepresentation’ by Citizenship and Immigration. In addition, employer non-compliance with the LMIA requirements could result in extensive fines or jail terms for the officers of the company, in addition to placement on a public employer non-compliance list and a bar from utilizing the temporary foreign worker program for two years.

Without a carefully prepared immigration strategy, EE applicants could face immediate disqualification or eventual disqualification after completion of the secondary/audit process. The new system is neither transparent or facile and it places a greater burden on employers who already shoulder the brunt of the corporate immigration program in Canada.

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