Canada: Immigration Update @ Gowlings - September 2008

Last Updated: October 10 2008

Edited by Bill MacGregor

  • About Immigration Update @ Gowlings
  • Labour Market Opinion (LMO) Processing Times Improved
  • The Canadian Experience Class: Canada Introduces New Permanent Resident Category
  • Changes Improve Canada's Post-Graduate Work Permit Program
  • New Name for Alberta's Provincial Nominee Program
  • Alberta PNP Adds Family Stream
  • Alberta PNP Program Targets U.S. H-1B Holders for Permanent Resident Status
  • Changes to the Federal Skilled Worker Permanent Resident Process
  • Process Changes to Permanent Resident Card Applications
  • New Canadian Visa Exempt Countries
  • U.S. To Change Visa Waiver Program
  • U.S. Expands F-1 Visa Program
  • Completion of Form I-9 a Requirement for all U.S. Employers
  • H-1B Petitions When a State Licence is Required

About Immigration Update @ Gowlings

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.

Labour Market Opinion (LMO) Processing Times Improved

Processing times for LMO applications made to Service Canada's B.C. and Alberta offices have improved dramatically over the last number of months. This is good news for employers seeking to hire foreign workers in B.C. and Alberta. In many situations, an employer needs to obtain an LMO from Service Canada before being able to obtain a work permit when hiring a foreign national.

Not that long ago, LMO processing times in B.C. and Alberta could be measured in months, which was far too long for employers needing skilled foreign workers to address labour shortages. LMO processing times in those two provinces have been decreasing, and may now be measured in weeks.

The Canadian Experience Class: Canada Introduces New Permanent Resident Category

Canada has introduced the new Canadian Experience Class (CEC). There are two streams: Skilled Workers and Foreign Graduates. This category will assist Canadian employers to transition their temporary foreign workers to permanent resident status.

The CEC class will facilitate the acquisition of permanent resident status for foreign nationals who have gained work experience in Canada. The CEC class will be based on a pass/fail model. Unlike the regular federal skilled worker category, there will be no points system.

To be eligible under the Skilled Worker Stream, temporary foreign workers with Canadian work experience would need:

  • two years of full-time work experience in Canada in a skilled, professional or technical occupation (one at skill level B or above under Canada's NOC system of classifying occupations), gained within the thirty-six months preceding the application date;
  • to demonstrate adequate language skills.

The CEC will also have a category for foreign graduates of Canadian post-secondary institutions. The minimum requirements are:

  • completion of a program at a post-secondary institution in Canada of at least two academic years, or in the case of a one year Master's program, previous education prior to admission into the Master's program must have been completed in Canada for a total of two years of Canadian post-secondary education;
  • one year of full-time skilled, professional or technical work experience gained in Canada in the twenty-four months preceding the application date;
  • the Canadian work experience must have been gained after completion of the Canadian post-secondary education;
  • moderate or basic language skills depending on the occupational skill level of position.

News Release re CEC
Requirements Under CEC for Skilled Workers
Requirements Under CEC for Foreign Graduates

Changes Improve Canada's Post-Graduate Work Permit Program

The Post-Graduate Work Permit Program has been significantly expanded, which will be useful for Canadian employers seeking to hire foreign graduates of Canadian post-secondary institutions.

Foreign national graduates of eligible programs at most post-secondary institutions in Canada may now obtain an open work permit without the requirement of first having a job offer. This type of work permit allows holders to work for any employer.

The duration of work permits under this category has been increased to three years where the foreign national is graduating from a program of study that takes at least two years to complete. If the foreign student's program is less than two years but at least eight months, the validity of the post-graduate work permit will be the same length as the period of study.

Canadian employers benefit as longer work permits may be obtained for foreign graduate hires. Steps can be taken to have the foreign graduate become a permanent resident of Canada during the duration of the post-graduate work permit. Note that, given that the work permits are "open" and not tied to a specific employer, the holders of such work permits will easily be able to switch employers if they wish.

Holders of these work permits will generally be able to transition to Permanent Resident status under Canada's new CEC category described elsewhere in this newsletter.

Post-Graduate Work Permit Program Changes

New Name for Alberta's Provincial Nominee Program

Alberta's Provincial Nominee Program will now be known as the Alberta Immigrant Nominee Program (AINP). The new name is to reflect the expansion of the program to include new categories, including a new Family Stream category.

AINP Site (Alberta's PNP)

Alberta PNP Adds Family Stream

Alberta has created a Family Stream in order to further address Alberta's labour shortages.

Eligible Albertans may take steps to sponsor a parent, child, brother, sister, aunt, uncle, niece or nephew through the Family Stream. The family members being sponsored must have post-secondary education, work experience and be between 21 and 45 years old. They do not need a job offer first.

A sponsor must be a Canadian citizen or permanent resident (and must have been so for at least two years). A sponsor must also currently reside in Alberta and show residence in Alberta for the past two years.

The foreign relative being sponsored must meet minimum education and work experience criteria. This includes completion of a post-secondary program of at least one year.

Individuals nominated by the Province of Alberta, together with their spouse and dependent children, are eligible to apply for a permanent resident visa through Immigration Canada as a Provincial Nominee. The permanent resident applications of Provincial Nominees are expedited.

Alberta PNP's New Family Stream
Family Stream: Sponsor's Eligibility Requirements
Family Stream: Family Member's Eligibility Requirements

Alberta PNP Program Targets U.S. H-1B Holders for Permanent Resident Status

Alberta's Provincial Nomination Program (PNP) has introduced the Strategic Recruitment Stream, which can fast-track the issuance of Canadian permanent resident visas to applicants currently residing in the United States on temporary work visas, with a focus on those who have H-1B status.

With the addition of the Strategic Recruitment Stream, the provincial government is recognizing that a foreign worker who has a U.S. temporary work visa and work experience working in the United States, should be able to integrate into the Alberta workforce. Therefore, there is no requirement for the applicant to have a full-time permanent job offer from an Alberta employer before applying under the PNP.

In order to be eligible for this program, an applicant must be currently employed in the United States on an H-1B visa and have been working there for at least one year. The U.S. experience must also be gained in an occupation listed on Alberta's Regional Occupations Under Pressure list.

Changes to the Federal Skilled Worker Permanent Resident Process

Changes to Canada's Immigration and Refugee Protection Act pertaining to skilled worker permanent resident applications have been announced. Specifically, the changes are designed to deal with the backlog of skilled worker applications. The Immigration Minister will identify occupations and skills that are required in Canada and applicants possessing experience in those occupations will be designated for processing. The changes give the Minister the authority to issue instructions to immigration officers on the processing of applications.

Applications received after February 27, 2008 will be processed under the new system. The goal is to reduce the backlog of skilled worker applications and decrease processing times of these applications.

Permanent resident applications made under provincial nominee programs, or where the applicant has arranged employment points, will continue to be processed.

This marks a return to an occupations based federal skilled worker program. The government will be able to use the legislation to prioritize the selection of skilled workers in occupations where there are shortages in Canada.

It is expected that the Minister's first set of instructions will be delivered in the Fall.

Announcement re Changes to Reduce Backlog

Process Changes to Permanent Resident Card Applications

Changes to the application process for new and renewal Permanent Resident ("PR") cards have been announced. The first change allows permanent residents to surrender their PR card when they pick up their new renewal card, as opposed to the former rule of having to surrender it upon applying for a renewal card. Secondly, the need for a guarantor, or declaration in lieu of a guarantor, is no longer required. Instead, immigration officers will rely upon an applicant's passport, driver's licence and educational and employment history when confirming an applicant's identity.

This is good news for employers that have permanent resident employees who need to travel internationally for business purposes. Prior to the change, permanent residents needing new PR cards had to send in their current card with the application. This created a problem, as a PR card is needed to be able to travel by commercial airline back into Canada. Under the old process, it was difficult for PR employees to travel internationally while their PR card renewal application was being processed.

Applying for a PR Card Renewal

New Canadian Visa Exempt Countries

By law, all foreign visitors to Canada require a temporary resident visa prior to travelling to Canada, except citizens of countries where an exemption has been granted. Citizens of Estonia, Poland, Slovakia, Lithuania, Czech Republic and Hungary no longer require a temporary resident visa to enter Canada. This allows citizens of these six countries to travel to Canada without the need of first applying for a visa. Applicants from these countries who are applying for work and study permits may now apply at the port of entry for these permits, provided other criteria are met. These countries join the ranks of all other European Union countries, except for Bulgaria and Romania, whose citizens do not require temporary resident visas to travel to Canada. It is expected that Bulgaria and Romania may become visa exempt as well.

Changes including lifting of visa restrictions

U.S. To Change Visa Waiver Program

The U.S. has introduced a new Electronic System for Travel Authorization (ESTA) program which will affect business visitors travelling to the U.S. who are citizens of countries under the Visa Waiver Program ("VWP"). The list of VWP countries is here: VWP List of Countries

Under the proposed ESTA, foreign nationals wishing to visit the U.S. under the VWP will first need to register under the ESTA. This program is supposed to come into effect by January 12, 2009. Generally, a positive determination under the ESTA will remain valid for two years and therefore may be used for multiple visits to the United States.

The ESTA site is up and running so those affected by this new process can sign up now.

The ESTA program does not affect Canadian citizens as Canadians are visa exempt. However, Canadian employers that have foreign nationals or permanent residents of Canada working for them who have citizenship in countries that come under the U.S. VWP will need to make sure that their employees apply under the ESTA in advance of any need to travel to the U.S. for business visitor purposes. The on-line ESTA sign up tool may be accessed via the link below.

FAQs about ESTA

U.S. Expands F-1 Visa Program

The U.S. has extended the period of Optional Practical Training for qualified F-1 students to 29 months from 12 months. The F-1 visa is often used by foreign students to acquire work experience after graduating from a U.S. institution. With the change, F-1 holders with a degree in science, technology, mathematics or engineering may qualify for up to 29 months of work after graduating if the entity that employs them enrols in the E-Verify Program.

One reason for the change is to overcome the "gap/cap" problem faced by many U.S. employers. Prior to the change, 12-month F-1 visas would usually expire prior to the October 1 H-1B start date. This gap often meant that F-1 holders were forced to leave the U.S. due to the expiry of their status prior to the time that they could obtain new status under an H-1B work visa.

Press Release Re: F-1 Changes

Further Information on Changes to F-1 Visa and Optional Training

Completion of Form I-9 a Requirement for all U.S. Employers

If you have hired a foreign worker for your U.S. company, be sure to complete Form I-9 Employment Verification. U.S. employers are required by law to verify that their foreign employees are authorized to work in the United States. Employers who hire or continue to employ non-authorized employees or who fail to comply with I-9 requirements may face civil and criminal penalties. Through the verification process, employers are able to ensure that their employees are authorized to work in the United States and that hiring practices do not unlawfully discriminate based on a potential employee's immigration status.

About I-9 Requirements

H-1B Petitions When a State Licence is Required

The USCIS issued a memo on March 21, 2008, providing guidance to adjudication officers in situations where professional licensure is required for a particular H-1B specialty occupation. USCIS regulations provide that, in a case where an occupation requires a state or local license to fully perform the duties of the occupation, the foreign national must have the license prior to the approval of the petition. However, some states require proof of legal authorization for employment, in order to issue a license. The result is an impossible situation where a professional is unable to obtain H-1B approval without a license, and not being able to obtain a license without an H-1B approval.

Pursuant to the Memo, USCIS adjudicators may now approve an H-1B petition for a one-year period, in cases where a license is required for the profession and the appropriate state or local agency will not grant such license without evidence that the H-1B status has been granted, if two conditions are met. The first being that the foreign national must have submitted a timely application for licensure with the appropriate state or local agency. Secondly, the foreign national must be fully qualified to receive the license and must have all the required education, training, and experience for licensure, as of the time of the filing of the H-1B petition.

If a professional is granted H-1B status, they must still obtain the license prior to engaging in the profession.

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.

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