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Government Announces Fundamental Changes to Various Immigration Programs

The Government Overhauls the Temporary Foreign Worker Program at the Expense of Canadian Employers

On Friday, June 20, 2014, major changes were announced by Ministers Kenney and Alexander to the Temporary Foreign Worker Program (TFWP). The TFWP is being re-organized into two distinct programs.

The Labour Market Opinion has now been renamed the Labour Market Impact Assessment (LMIA) and is overseen by Employment and Social Development Canada (ESDC). The new LMIA involves an application fee of $1,000.00 per worker. Within the LMIA stream, the program has been reclassified to distinguish between high-skilled and low-skilled workers.

High Skilled Workers: A Canadian employment position that pays more than the average wage will be considered a high-skilled position. There will be expedited processing in as little as 10 days for certain positions including skilled trades, workers in the highest-paid occupations that offer wages in the top 10% of wages, and for workers who are coming to Canada for a short duration, defined as 120 calendar days or less.

Low Skilled Workers: A Canadian employment position that pays less than the provincial average wage will be considered low-skilled. A cap of 10% of the workforce has been imposed on low-skilled occupations. Employers who currently employ more than 10% of foreign workers in their overall workforce have deadlines to phase out excess workers. Areas of the country with an unemployment rate of 6% or more will be ineligible to employ workers in the service industry.

Employers must now provide a transition plan that mandates activities that will be performed to replace a foreign worker with a Canadian worker.

These changes represent the fourth set of increasingly restrictive and enforcement-orientated legislation to the TFWP.  The changes deflate the efforts of top Canadian employers endeavoring to hire the best and the brightest in order for their businesses to compete internationally.

LMIA Exempt Positions – International Mobility Program

Canada has now created the International Mobility Program (IMP) for positions that do not involve Labour Market Impact Assessments (i.e. NAFTA professionals, Intra-company transfers).

The IMP is administered by Citizenship and Immigration Canada (CIC). Employers will soon be required to provide CIC with a copy of the job offer made to the foreign national along with a $230.00 filing fee. This is in addition to the individual making an application to CIC. Employers using the IMP will be responsible for compliance with the terms of the job offer and the requirements of CIC, including warrantless audits. The additional fees collected will be directed towards enforcement of the program. Employers could face major fines of up to $100,000 or jail terms of up to 5 years under this new program.

The TFWP will now refer to only those streams under which foreign workers enter Canada at the request of employers following approval through a new LMIA.

The new IMP will include those streams in which foreign nationals are not subject to an LMIA, (these include NAFTA and GATS) and whose primary objective is to advance Canada’s broad economic and cultural national interest rather than filling particular jobs. CIC will be the lead department for the IMP.
New Requirements for Specialized Knowledge Workers

By Clara Kim

Employers applying for a work permit under the intra-company transfer stream (LMO exemption) must provide evidence of a qualifying relationship between the Canadian and foreign employer and evidence of the existence of a qualifying relationship between the employer and the temporary foreign worker. Additionally, the prospective temporary foreign worker must qualify under one of the following occupation categories: Executives and Senior Managers, Functional Managers, and Specialized Knowledge Workers.

For each intra-company transfer occupational category, there are specific qualifications that a temporary foreign worker must meet in order to qualify for this LMO exemption. In the past, qualifying for the Specialized Knowledge Worker category required the temporary foreign worker to demonstrate “specialized knowledge” that is unique or to possess an advanced level of knowledge or expertise in the organization’s processes and procedures. Typically, a Specialized Knowledge Worker would hold a position that is critical to the well-being of the enterprise, while not necessarily being responsible for managing employees or possessing a budgetary responsibility.

The definition of “specialized knowledge” was previously defined as “unusual and different from that generally found in a particular industry.” As mentioned earlier, in order to qualify as a Specialized Knowledge Worker the temporary foreign worker must have possessed either “specialized knowledge or advanced knowledge”. Advanced knowledge is defined as a complex or high level of knowledge that is not necessarily unique or known by a few individuals (or proprietary). Other factors that were considered included which category under National Occupational Classification (NOC) code the position qualified under: education, experience, salary and the amount of training that would be required for a position that requires “specialized knowledge.”

The government has indicated that, effective June 9, 2014, there are new requirements that temporary foreign workers must meet in order to qualify under the Specialized Knowledge intra-company transfer LMO exemption. Now, temporary foreign workers must demonstrate a high degree of both proprietary knowledge and advanced expertise. Specialized knowledge is considered to be knowledge that is unique and uncommon. The onus is on the employer to demonstrate that the temporary foreign worker’s specialized knowledge and temporary employment in Canada will play a key role in the Canadian company’s competitiveness in the marketplace.

Additional new requirements under this LMO exemption category include the mandatory direct employment and supervision of the temporary foreign worker by the Canadian company. Training should be provided by the specialized worker to the Canadian company. The Specialized Knowledge worker may not receive any training by other employees of the Canadian company that would lead to the displacement of Canadian workers.

Finally, in order to qualify as a Specialized Knowledge worker, the employee must be paid the prevailing salary wage for the position’s corresponding NOC code (dependent on location), as determined by the government’s working wage website. This new requirement is based on the belief that an individual who possesses specialized knowledge should earn a salary that is consistent with such work. Therefore, the worker is entitled to the prevailing wage and generally receive an above-average salary for that position. Non-cash per diems for costs such as hotel and transportation, will not be considered as part of the overall salary calculation.

These new policy changes dramatically toughen this category and mean that many specialized knowledge professionals will no longer qualify for work permits to Canada.  The new requirements are a blow to Canadian businesses relying on the specialized intercompany category for short term transfers, client requested integration or standardization specialists, secondments, and short term work sharing and/or exchange programs.

New Rules on Conditional Residence for Sponsored Spouses and Common-Law Partners

By Alyssa Broadbell

On October 25, 2012, the federal government made amendments to section 72.1 of the Immigration and Refugee Protection Regulations introducing Conditional Permanent Residence. Conditional Permanent Residence obligations apply to spouses, common-law partners or conjugal partners who have been in a relationship of two years or less with their sponsor at the time of the application for permanent residence to Canada and who have no children in common with their sponsor at the time of their application.

The rules state that the sponsored spouse must cohabit in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. If they do not remain in the relationship, the sponsored spouse’s Permanent Residence status could be revoked.

Two exceptions apply to this condition. The condition ceases to apply if the sponsor dies during the two-year period, or in instances where there is evidence of abuse (i.e. physical, sexual, psychological or financial) or neglect (failure to provide the necessities of life as outlined in the sponsorship agreement).

On June 11, 2014, CIC particularized the enforcement actions which could be brought against applicants who are not in compliance with these policies and who have not met the two-year cohabitation condition. Once CIC is satisfied that the foreign national has met the legislative requirements, the officer will allow the sponsored person to continue their residence in Canada. If there is an indication of non-compliance within the required two-year period of cohabitation, a criminal investigation may ensue. This may include a review of whether there was fraud, misrepresentation or organized crime.

The sponsor may appeal a decision to revoke permanent residence by CIC to the Immigration and Refugee appeals division. Whilst this Conditional Permanent Residence endeavours to address marriage fraud, it also creates a ‘second class’ of permanent residence reminiscent of Canada’s federal entrepreneur permanent residence. The government previously suspended the entrepreneur program because of the administrative ‘nightmare’ involved in enforcing the program. Will this new Conditional Permanent Residence category be subject to a similar fate?

Recent Changes to the Study Permit Program – Effective June 1, 2014

By Carrie Wright

Previously, in order to be eligible to apply for a study permit, a foreign national only required an intention to pursue studies in Canada, a letter of acceptance from an educational institution in Canada, and sufficient funds to support himself in Canada. However, as of June 1, 2014, CIC has instituted a number of changes in an effort to reduce fraud and misuse of the program.

Designated Learning Institution

First, CIC has limited the issuance of study permits to foreign nationals with a letter of acceptance from a “designated learning institution”. Each province and territory in Canada is responsible for designating schools at the post-secondary level that may enroll international students. A school will be designated for reaching a minimum standard of education. A list of designated learning institutions is available on the CIC website. All primary and secondary institutions in Canada are automatically designated but will not appear on the designated learning institution list.

For those whose applications for a study permit were received before June 1, 2014 and hold a letter of acceptance from an institution that is not designated for international students, their applications will still be processed and they may still pursue their programs of study at that institution for the duration of their study permit. In addition, they will be able to renew their study permits in order to complete their programs of study, but not beyond June 1, 2017.

For those who were issued a study permit prior to June 1, 2014 and are studying at an institution that is not designated for international students, they can pursue their programs of study in which they are currently enrolled for the duration of their study permit, and will be able to renew their study permits in order to complete their programs of study, but not beyond June 1, 2017.

Actively Pursuing Studies

Second, rather than merely having an intention to study in Canada, study permit holders must actively pursue studies. “Actively pursuing studies” means that a foreign national must remain enrolled at the designated learning institution and “make reasonable and timely progress towards completing the program.” Educational institutions will now report to CIC on the enrollment and academic status of foreign students, and students may be required to provide immigration officers with evidence of their continued enrollment and academic status, if requested.

In addition, regardless of the expiry date listed on a study permit, permits will automatically become invalid 90 days after the foreign students complete their programs of study, even if the foreign students have switched to a shorter-term program or finished their studies early. A program is considered “complete” when the student receives written notification of program completion from the institution, or once the student receives the degree, diploma or certificate. This does not apply if the foreign student’s study permit application was received prior to June 1, 2014, or if the foreign student was issued a study permit before June 1, 2014.