Canada: Immigration Update @ Gowlings - November, 2009

Last Updated: November 18 2009

Edited by Bill MacGregor and Lesley Love

Contents

  • About Immigration Update @ Gowlings
  • Revised Recruiting Standards for LMO Applications
  • Free Trade Agreement Facilitates Entry of Peruvian Citizens
  • Auditor General Reviews Canada's Immigration Program
  • Proposed New IRPA Regulations Will Tighten Temporary Foreign Worker Program Rules
  • Enhanced Permanent Resident Card Causes Delays
  • Saskatchewan Expands Provincial Nominee Program
  • Alberta AINP Amends US Visa Holders Occupations List
  • U.S. H-1B Work Visas Still Available

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.



Revised Recruiting Standards For LMO Applications

As anyone familiar with Canada's Labour Market Opinion process will be aware, the LMO application process has been tightened over the course of 2009. This trend started with the introduction of new National Recruiting Standards at the beginning of the year.

Service Canada from time to time tweaks the rules and the online information regarding these recruiting standards. Employers must be aware of these changes. Employers need to make sure that the recruitment done meets the minimum standards. Employers should also ensure that the job description and requirements set out in any advertising is consistent with the content of the LMO application materials.

Service Canada has added to its "Variations to Minimum Advertising Requirements" information. This is a list of exemptions to the National Recruiting Standards. For example, an "owners/operators" exemption has been added. The owner/operator must show that they are important to the day-to-day operations of the business. Greater emphasis will be put on the creation or maintenance of employment for Canadians. No advertising is required under the owners/operators exemption.

More recently, the "operational specialists" exemption has been renamed the "specialized service technicians/specialized service providers" provision. This covers situations where the work requires a specialist having "proprietary knowledge or experience relating to the work to be performed" and where the duration of the assignment is limited. Sample scenarios are set out. No advertising or recruitment is required if the situation fits under this exemption.

Employers should be aware that these variations to the minimum advertising requirements may change without notice at any time.

Updated LMO Recruiting Requirements

Variations to Minimum Advertising Requirements



Free Trade Agreement Facilitates Entry Of Peruvian Citizens

Canada and Peru entered a Free Trade Agreement (FTA) effective August 1, 2009. Canada already has free trade agreements with immigration provisions with the United States and Mexico (the NAFTA) and with Chile (the CCFTA).

The Canada-Peru FTA facilitates the entry of Peruvian citizens and assists employers in Canada to obtain work permits for them.

Like NAFTA, there are business visitor, professional, intra-company transferee and trader/investor categories. However, there are also some differences, including the following:

  • This FTA covers both Peruvian citizens and permanent residents of Peru. NAFTA and CCFTA only cover citizens.
  • Under the intra-company transferee category, the candidate only needs to be employed for six months by the related Peruvian entity prior to the transfer, whereas NAFTA requires twelve months of service.
  • The list of professions and occupations covered by the Canada-Peru FTA is different than the NAFTA list of professionals.

Canadian employers seeking to employ citizens of Peru should first consider whether the new FTA provides a work permit category.

Operational Bulletin on Entry Provisions of Canada-Peru FTA



Auditor General Reviews Canada's Immigration Program

The Auditor General of Canada recently issued a report reviewing and criticizing some aspects of Canada's Temporary Foreign Worker Program. The report contained recommendations. Immigration Canada and Service Canada appear to have agreed with some of the recommendations as set out in the report (see link below).

Some of the concerns expressed were that the genuineness of job offers to foreign workers was not systematically verified, the lack of adequate protection for foreign workers once in Canada, the lack of follow up compliance reviews of employers using the LMO process, and inconsistent approaches to the assessment of LMO applications between various Service Canada offices.

This report will provide further impetus to the current trend of enhancing the enforcement and compliance side of the LMO process, while ensuring that foreign workers in Canada are protected. This trend is also seen in the proposed new regulations referred to elsewhere in this newsletter.

Auditor General's Report on the Foreign Worker Program



Proposed New IRPA Regulations Will Tighten Temporary Foreign Worker Program Rules

In October the Canadian government introduced proposed new regulations to amend Canada's immigration legislation. The changes are intended to increase enforcement to punish employers that do not comply with the LMO and work permit rules, while also providing more protection to the Canadian labour market. Enhanced compliance and enforcement rules are also intended to protect foreign workers from employers that might otherwise abuse them, especially workers who come to Canada under the Low-Skill Worker Program.

The draft regulations create a regime to assess the genuineness of a job offer.

Employers also face a potential two-year ban from hiring a temporary foreign worker if the employer is found to have provided significantly different wages, working conditions or put a foreign worker in a different occupation than what was set out in the LMO application.

Finally, there are proposed limits on the length of a foreign worker's stay in Canada. Under the proposed regulations, after a foreign worker has a cumulative total of four years working in Canada, the foreign worker would not be eligible to work in Canada again for six years. Thankfully, there are exemptions to this time cap. For example, those in Canada on work permits under an international agreement like NAFTA or under the intra-company transferee work permit category will not be covered by this time cap. However, the time cap will apply to foreign workers in Canada under a work permit derived from an LMO. Therefore, unless this provision is changed, employers will need to move senior level or key foreign workers who are in Canada under LMO derived work permits to permanent resident status prior to the four-year time cap being reached.

In any event, these changes, when and if adopted, will place a greater onus on employers to ensure that they are compliant with the LMO application rules. It will also make the LMO process more rigorous.

It remains to be seen whether the draft regulations will be adopted as drafted, or when the regulations will be adopted. We will provide further updates.

News Release



Enhanced Permanent Resident Card Causes Delays

Canada has introduced a new PR Card with enhanced security features. Unfortunately, this has increased processing times on PR Card renewal applications, such that, as of the date of this newsletter, the stated processing time on CIC's website is 125 days for renewals.

Canadian permanent residents whose current PR Cards are set to expire should therefore apply well in advance to renew their PR Card. This will allow them to travel back into Canada if they need to travel outside Canada on business.

If someone requires a new PR card on an urgent basis, Immigration Canada does provide a process to make an expedited request for a PR card. However, whether or not someone is able to use this process is discretionary, and Immigration Canada must be convinced that the situation truly is urgent. Therefore, it is much better to plan ahead and apply for a new PR card well in advance of its end date.

News Release on New Enhanced PR Card

Processing Timelines for PR Card Renewal Applications



Saskatchewan Expands Provincial Nominee Program

In October Saskatchewan introduced an enhanced entrepreneur category for its PNP.

There are three new streams. The Large Scale Investor stream requires an investment of $10 million or more. The Science and Technology stream is open to people who have a patent, innovative idea or plan to partner with an existing Saskatchewan science and technology entity. The Young Farmer stream is aimed at experienced farmers under the age of 40 and is intended to encourage young families to move to rural Saskatchewan to assist succession planning for farming operations.

The government also announced that two other streams will be added. One will be for entrepreneurs to partner with First Nations and Métis businesses and communities. The other will facilitate business succession.

News Release on New Entrepreneur Categories

Saskatchewan PNP Entrepreneur Category Information



Alberta AINP Amends US Visa Holders Occupations List

Alberta's provincial nominee program has several categories, including the U.S. Visa Holder category. This facilitates the entry of certain U.S. visa holders in specific U.S. visa categories (such as H-1B work visa holders), and who work in skilled occupations that are in high demand in Alberta. Such candidates may apply under the AINP without a job offer from an Alberta employer.

In September Alberta amended its List of Occupations Under Pressure. Candidates hoping to apply under the U.S. Visa Holder category will need to make sure they qualify under one of the occupations in the revised list.

AINP's US Visa Holder Category Information

AINP Occupations Under Pressure List



U.S. H-1B Work Visas Still Available

As of the date this newsletter was prepared, there appears to still be some H-1B work visas available for the fiscal year starting October 1, 2009. There are a limited number of these work visas available each fiscal year. The fact that some are still available points to the weakness in the U.S. economy. In recent years, the H-1B cap was reached within days that applications are allowed to be filed (the application period starts April 1st for the fiscal year starting the following October 1st). H-1B visas have not been available this late for many years.

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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