British Columbia Pilot Project Facilitates Open Work Permits

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The province of British Columbia and Citizenship and Immigration Canada have announced a program which expands the availability of open work permits to family members of foreign workers in that province. Under the newly announced Pilot Project, in effect from August 15 2011 to February 15 2013 and with a cap of 1800 open work permits, the spouses, common-law partners, and working-age dependants of holders of most classes of occupation-specific work permits.

In all provinces at present, the spouses and common-law partners of highly skilled work permit holders, those classified as doing work in NOC 0, A, or B categories, are eligible for such open work permits without any caps. The Pilot project therefore expands this to include most NOC C and D classified occupations (exceptions are Live-In-Caregivers, Seasonal Agricultural Workers, and International Experience Class youth program workers), and to allow dependent children of working age to participate.

New Work Permit Forms in Effect August 1 2011

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Following the introduction of a new version IMM1295 application form on February 15th of this year, the Department has announced that effective August 1 2011, no other application forms will be accepted (with the exception of SAWP cases in Mexico and Jamaica until September 30 2011). The forms contain a bar coding system that requires validation prior to finalization; this validation makes correct completion of the form mandatory.

This version of the form does contain additional fields that require a greater depth of information as compared to the prior version. New sections include details on education and work history.

Candidates should ensure that the version 01-2011 or later form is used in any submission on or after August 1 2011.

Specialized Knowledge Intra-Company Transfers

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Foreign nationals seeking transfer from a foreign company to a parent, subsidiary, branch, or affiliate of that company in Canada may be eligible to seek a Labour Market Opinion exemption and work permit through the Intra-Company Transfer provisions, including the Specialized Knowledge Category. This has historically been a subcategory that has been more vague, as clear and concise definitions of eligibility do not exist. Unlike an “executive” or a “senior manager” for example, the ability to pinpoint the definition of a specialized knowledge worker is more difficult.

Following the termination of the Facilitated Processing of Information Technology Workers Program in most provinces in Canada, an increase in the volume of these Transfer applications has been noted, and there has been a desire to more clearly define the requirements of eligibility. Beyond the fundamental definitions, factors that may be considered in assessing a specialized knowledge worker include the following:

Education and Skill: An assessment of the education credential needed to perform the work is a consideration, and often the corresponding assessment of skill classification is a critical factor. Generally, positions requiring college credentials or higher are considered suitable. Beyond education credentials, consideration is given the to skill classification of the occupation in both Canada and abroad. Barring exceptional circumstances, that skill classification for the position in Canada should be the same as, or higher than, the position held by the candidate abroad.

Knowledge and Experience: Candidates should typically possess specialized or advanced knowledge specific to a given industry, which would generally extend beyond what may be common in that particular industry. It is not necessarily the case that such knowledge must be proven absent from Canada, however. Specialized Knowledge transfers would favour candidates who have extensive industry experience, and such experience is sufficiently complex that it would be difficult to acquire or otherwise imbue into another worker.

Wage: The wage of the candidate should be in line with the average wage of the comparable occupation in Canada. Although prevailing wage statistics would not necessarily be applied as rigorously as in a LMO application, officials are recommended to give consideration of the comparability of the wages.

CIC Promoting Long Term Multiple Entry Visas for Business Travellers

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Citizenship and Immigration Canada has announced a policy decision to promote the use of long-term multiple-entry visas. For foreign nationals engaged in ongoing business activities in Canada, and who officials accept as genuine temporary residents of Canada, the goal of this policy is to facilitate such business activity without the need for repeated single-entry visa applications.

The policy permits issuance of a multiple-entry visa for a maximum duration of the validity of the candidate’s passport less one month. Depending on the normal passport validity of an issuing country, this means that the normal maximum validity will be up to 59 months (just under 5 years), although in some cases it could be as much as 119 months (just under 10 years).

An entry visa permits the foreign national to appear at a Canadian port of entry to seek admission. The maximum duration of such admission on any given occasion is subject to the discretion of the Canada Border Services Agency official.

Removal of Name in Labour Market Opinion

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Due to privacy concerns, Service Canada (HRSDC) Labour Market Opinion (LMO) Confirmations and Annexes will no longer necessarily carry the name of the foreign worker approved therein. In some cases, where privacy concerns are not an issue, officials may include the name of the foreign worker in the notes in the case, this is not a standardized practice.

These changes do not effect the process of seeking the LMO. However, in cases in which LMOs are granted for multiple workers, it is necessary to be careful to issue the correct Confirmation letter and annex to each such worker to prevent problems when seeking the work permit.

Quebec Changes CAQ Requirement to 30 Days

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The province of Quebec has changed the duration of work in that province that is subject to the requirement of a Certificat d’acceptation du Québec (CAQ). Previously work in that province of a duration of 5 days or less was exempted from the CAQ process; this has now been changed to allow exemption from the requirement for any offer of work in Quebec of a duration of 30 days or less (any occupational classification).

Foreign nationals seeking to work in Quebec for a duration of greater than 30 days must seek the CAQ from the Ministère de l’immigration et des communautés culturelles du Québec. Cases in which the work in Canada is subject to an exemption from the requirement of a Labour Market Opinion Confirmation are exempt from this requirement.

IT Worker Program Extended in BC

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For most provinces in Canada, the Facilitated Processing of Information Technology Workers program ended on September 30 2010. However, the provinces of Quebec and Alberta maintained the program until March 31 2011. Quebec has now terminated this program as well, but the province of British Columbia has announced that it will extend the program once more, this time until September 30 2011.

Eligible candidates may seek work permits in this program without the requirement of a Labour Market Opinion Confirmation first.

Revisions to Temporary Foreign Worker Program

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On April 1 2011, Citizenship and Immigration Canada implemented changes announced in 2010 which constitute a significant increase in the level of scrutiny that applications in the Temporary Foreign Worker Program (TFWP) will be subject to. Officials reviewing applications, including HRSDC; CIC; and CBSA, now have more power and obligation to evaluate the job offer, the employer, the and the employer’s history in the TFWP.

When an offer is made to a foreign national, officials must assess the following factors:

(1) the genuineness of the job offer, including whether or not the employer is continuously and actively engaged in commercial activities in Canada; whether the position offered is credible in the light of the business in which the employer is engaged; and whether or not the employer is capable of fulfilling the terms of the offer of employment.

(2) the employer’s history of compliance with requirements of the TFWP and of providing “Substantially the Same” wages, conditions, and responsibilities to the foreign national as were approved by the Canadian government officials (STS).

(3) the consistency of the request with agreements established with the various provinces and territories and Citizenship and Immigration Canada.

Applications can be refused if the above are not consistent with program requirements, and employers could potentially be prohibited from benefiting from the services of a foreign worker for a 2 year duration if they are found to have failed to comply with STS requirements.

Foreign nationals may also now be required to adhere to a 4 year maximum duration of work in Canada. After a cumulative duration of 4 such years, it would be necessary for a period of 48 months to pass prior to which the foreign national would become eligible for work in Canada in the TFWP again. Exemptions to this rule do exist, which may include candidates admitted pursuant to international treaties (e.g., NAFTA), candidates admitted in certain high skill occupations, and those contributing a significant benefit to Canada.