Immigration Update @ Gowlings - September 2006

Edited by Bill MacGregor

• About Immigration Update @ Gowlings
• Hiring Foreign Nationals in Canada – An Immigration Overview
• New Temporary Foreign Worker Units (TFWUs) Announced for Calgary and Vancouver
• Canada's New "Simplified Application Process" for Skilled Worker Applications
• Expansion of B.C.'s Provincial Nominee Program
• Canadians Will Soon Require Passports to Enter the U.S.
• Obtaining a Canadian Passport
• U.S. May Start Fingerprinting Canadians with U.S. Work Visas
• Updated Passport Rules Under the U.S. Visa Waiver Program
• Carry-On Baggage Rules

The ability to move personnel across borders and to recruit skilled workers from abroad is of increasing importance to many business operations. It is essential that companies and their personnel recognize and comply with applicable immigration laws. Immigration Update @ Gowlings, prepared by Gowlings Immigration Practice Group, provides information on corporate immigration matters, including new developments and changes that may affect your ability to move personnel across borders. Gowlings Immigration Practice Group offers a full range of immigration services and strategic solutions to clients. For example, we assist with executive transfers, and with obtaining business visitor status, work permits, temporary resident visas, permanent resident status and citizenship.

New Temporary Foreign Worker Units (TFWUs) Announced For Calgary And Vancouver

Effective September 1^st, Immigration Canada has created, on a pilot basis, two new temporary foreign worker units. The Calgary unit will cover Alberta, and the Vancouver unit will cover British Columbia's Lower mainland. The TFWUs are intended to facilitate the entry of temporary foreign workers into Canada for situations where the foreign worker is exempt from Service Canada's labour market confirmation process. A TFWU has been in existence for several years in Montreal and deals with Quebec-bound foreign workers.

Further details at:
http://www.cic.gc.ca/english/press/06/0607-e.html

Canada's New "Simplified Application Process" For Skilled Worker Applications

As of September 1^st, Immigration Canada has adopted a new "Simplified Application Process" for Federal Economic Class applicants, which includes foreign nationals seeking permanent resident status under the skilled worker category. New application forms have been developed. The forms and processing fees are initially filed so that that applicant obtains a place in the processing queue. Unlike the old "regular application process", the applicant's supporting documents are not forwarded until requested by the visa office. The simplified application process must be used after September 1^st for all visa offices except the Canadian Consulate in Buffalo. Applications filed there will continue to use the "regular application process".

Further details at:
http://www.cic.gc.ca/english/applications/faq-simple.html

Expansion Of B.C.'S Provincial Nominee Program

British Columbia has announced the expansion of its provincial nominee program. This program facilitates the ability of certain skilled workers and economic immigrants destined for British Columbia to obtain Canadian permanent resident status. Foreign nationals who qualify under the B.C. PNP will obtain permanent resident status much sooner than applicants who apply under the Federal Economic Class.

News Release re: Expansion of B.C.'s PNP
Expansion of B.C.'s Entrepreneur program
B.C.'s Provincial Nominee Program Home Page

Canadians Will Soon Require Passports To Enter The U.S.

Under its Western Hemisphere Travel Initiative, the U.S. will require Canadian citizens to present a passport to enter the United States when arriving by air or sea beginning January 8, 2007. Canadians entering by land will require a passport beginning January 1, 2008. Canadians who may need to travel to the U.S. should apply for their Canadian passport well in advance of January 8, 2007.

Information on U.S. Western Hemisphere Travel Initiative
New U.S. Travel Document Requirements FAQs

Obtaining A Canadian Passport

For those Canadians who have not yet applied for a passport, information on the application process, and the application form, are set out at this link.

Passport Canada Website

U.S. May Start Fingerprinting Canadians With U.S. Work Visas

In July the U.S. Department of Homeland Security published proposed rules relating to the expansion of the US–VISIT program. If implemented, the US–VISIT program would be applied to Canadians holding U.S. work visas, such as L-1 (intra-company transferee category) and TN (NAFTA professional) work visas. The US–VISIT program is intended to track the entry and exit of foreign nationals. US–VISIT uses digital fingerprinting and other biometric identifiers. Canadians entering as business visitors or tourists would not be subject to US–VISIT under the proposed rule.

Washington Post Article on Proposed Changes to US-VISIT Program
Text of Proposed Rule re Fingerprinting Canadians

Updated Passport Rules Under The U.S. Visa Waiver Program

The U.S. Visa Waiver Program (VWP) allows travellers from 27 countries to enter the United States for up to 90 days without requiring them to first obtain an entry visa. The VWP does not apply to Canadians (as Canadians do not require U.S. entry visas), but would apply to personnel travelling into the United States from Canada who are Canadian permanent residents or foreign workers based in Canada. As of October 26, 2006, any passport issued on or after this date by a VWP country must be an E-Passport for VWP travellers to be eligible to enter the United States without a visa. The various passport rules regarding travellers from VWP countries, and a list of VWP countries, may be found at the following link.

Visa Waiver Program Traveller's Guide re Passports

Carry-On Baggage Rules

In August new rules regarding carry-on baggage were adopted. Any employees travelling by air should be aware of these rules and should check for updates or changes to those rules prior to travelling. Below are links to the official government websites regarding carry-on rules and prohibited items for Canada, the United States and the United Kingdom.

Transport Canada Rules on Carry-On Baggage
Changes Affecting Duty Free Carry-On Goods (Canada)
List of Prohibited Items from Canada Air Transport Security Authority
U.S. List of Prohibited and Permitted Items
U.K. Rules on Carry-On Baggage

Hiring Foreign Nationals In Canada – An Immigration Overview

The purpose of this article is to provide an overview of the immigration rules relating to hiring foreign nationals to work in Canada. There is a growing need in Canada for skilled workers. To fill skills shortages, companies may have to consider hiring foreign nationals. If you hire or use the services of a foreign national in Canada, you must consider immigration issues, and you must be prepared for the challenges of dealing with immigration authorities. The key is to deal with immigration issues on a proactive basis.

Canada's Immigration And Refugee Protection Act (IRPA)

IRPA and its Regulations affect your business operations, your human resource planning and your potential liability. For example, the legislation:

• Affects your ability to hire foreign workers for positions in Canada
• Has an impact on foreign service providers or business people wishing to come into Canada to deal with your company
• Exposes you and your company to liability for breaches of the Act
• Affects the ability of foreign national employees to acquire permanent resident status

Canadian Work Permit Rules

As a general rule, no person, other than a Canadian citizen or permanent resident, may work in Canada without valid authorization. So the first question to ask is whether or not a foreign national entering Canada requires a work permit.

"Work" is widely defined as "an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market." If a foreign national is being hired to work in Canada, he or she will require a work permit.

After assessing the person and the purpose of the entry, and determining that a work permit is required, the next step is to determine whether there is any work permit category under IRPA, under an international agreement (such as NAFTA) or under any government programs (such as the IT Workers Program) that fits the situation. If there is not, the Canadian employer must first approach Service Canada (formerly HRSDC) to obtain a "confirmation" (or labour market opinion) allowing employment to be offered to someone other than a Canadian citizen or permanent resident. If a confirmation is obtained, it can then be used to obtain a work permit from Immigration Canada.

Generally, the goal is to avoid the confirmation process if possible. The reason for this is that it avoids the risk of Service Canada denying the confirmation request. Secondly, having to apply for a confirmation can delay the overall time frame for obtaining a work permit.

The application package for a confirmation is detailed and must be prepared with great care.

IRPA's Regulations set out the factors that Service Canada is to base its confirmation decision on, including:

• Whether the work of the foreign national is likely to result in direct job creation or job retention for Canadians or permanent residents;
• Whether the work is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadians and permanent residents;
• Whether the work is likely to fill a labour shortage;
• Whether the wages and working conditions are sufficient to attract Canadian citizens or permanent residents;
• Whether the employer has made reasonable efforts to hire or train Canadian citizens or permanent residents.

Québec Bound Foreign Nationals

Foreign nationals hired to work in Québec may, in addition to a Service Canada confirmation, require a Certificate of Acceptance (CAQ) from Québec's Ministère de l'Immigration et Communautés culturelles (MICC) before a work permit can be obtained. This requires a separate application to MICC. Note that a CAQ is not required for Québec bound foreign nationals who qualify for NAFTA or intra-company transferee work permits (discussed below).

Other Work Permit Categories

There are a number of potentially useful confirmation exempt categories to consider when hiring a foreign national. These include:

NAFTA may be used by American and Mexican citizens. There is also a similar provision in the Canada-Chile Free Trade Agreement.

NAFTA lists over 60 professions that may be eligible for a work permit. The foreign applicant must usually have a university degree related to a listed profession, and the applicant must be entering to apply the skills of that profession. A one-year work permit, which is renewable, may be obtained.

Some professions listed under NAFTA include: computer systems analysts, engineers, scientific technicians, management consultants, medical and some allied professions, and many scientific categories such as chemist, geologist and biologist.

Both NAFTA and IRPA have intra-company transferee provisions, which may be useful in transferring managerial or specialized personnel to Canada from a related foreign entity. Note that there are time caps which may limit the overall length of time that a foreign national may hold a work permit under this category – the time caps vary depending on the position and whether the application is made under NAFTA or IRPA.

The basic rules are:

• the transferee must be an executive, manager or have "specialized knowledge" and must be transferring into such a position;
• the applicant must have been with the related foreign entity abroad for one year out of the previous three years prior to the application;
• there must be a proper relationship between the foreign entity and the Canadian entity receiving the transferee (for example, parent-subsidiary).

Service Canada has made a blanket determination that certain software workers are in short supply in Canada. If a prospective foreign worker qualifies, a work permit is applied for without first having to obtain a job specific confirmation from Service Canada.

Seven types of software occupations are eligible: software developer; MIS designer; software products developer; embedded systems software designer; senior animation effects editor; multimedia software developer; and telecommunications systems designer. Detailed descriptions of each job type are set out and include minimum educational criteria, work experience, technical knowledge and salary levels that must be met. For example, one of the criteria is that candidates must have at least two years relevant work experience.

Foreign students who graduate from a Canadian post-secondary institution may apply for a post graduate work permit provided the employment is related to their post-secondary education. The application must be made within 90 days of written notification of graduation.

Work permits under this category will not be granted for a period of time longer than the length of the post-secondary program the foreign student was taking, which must be a minimum of eight months. The work permit may be valid for up to two years for students who have studied at and graduated from institutions outside of the greater Montreal, Toronto and Vancouver metropolitan areas, and who will be employed outside those areas. If those two criteria are not met, the validity period of the work permit under this program is limited to a maximum of one year.

Any extensions beyond the initial period would require a Service Canada confirmation or approval under another confirmation exempt category.

Spouses (including common law and same-sex spouses) of most foreign nationals working in Canada may apply for a work permit under the Spousal Employment Program. The principal foreign national must be working in a position that is at a higher skill level. Typically this includes management, professional occupations, and technical or skilled trades workers. This program may assist Canadian companies in their recruiting efforts, since accompanying spouses will generally be able to work in Canada.

Depending on the citizenship of the foreign national, an entry visa may also be required before the person may enter Canada. An entry visa must be obtained from a Canadian Visa Office outside Canada. If this is required, it may limit some of the processing options available as compared to foreign applicants who do not require an entry visa.

Foreign nationals who have lived in certain designated countries may require an immigration medical as a condition of entry. This requirement may delay the application process.

Beyond ensuring that the person is qualified for a particular work permit or immigration category, the foreign national must not otherwise be inadmissible for such things as a criminal conviction or prior entry refusals.

It is imperative to put together a strong application package when applying for a Service Canada confirmation or for a work permit. By ensuring that an application is well documented and complete, the likelihood of it being approved is significantly increased. The extent and content of the material included in the application package will depend on the work permit category and the particular circumstances of each situation.

Canadian companies may need to hire or engage foreign nationals to address their human resource needs. When recruiting foreign nationals, Canadian companies need to be aware of the applicable immigration rules, issues and options. When hiring a foreign national, it is also imperative to prepare strong application materials to support the immigration status being sought. Legal counsel can assist in assessing the work permit options and with preparing proper application packages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.