United States: Canada To Overhaul The Express Entry Permanent Residency Eligibility Requirements

Seyfarth Synopsis: Canada to significantly alter the Permanent Residency eligibility requirements under the Express Entry points-based program.

The following alert is relevant to organizations with a presence in Canada or who anticipate the need to place talent at a Canadian work site.

Seyfarth Shaw's Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world. If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.

Effective November 19, 2016, Canada will significantly overhaul eligibility requirements for the Express Entry permanent residency program. The new requirements will increase access to the Permanent Residency program for several highly-skilled workers and those with Canadian educational credentials.

The Express Entry program is Canada's comprehensive Permanent Residency program that launched in January 2015. Express Entry makes it considerably faster to become a permanent resident of Canada, although more challenging due to complex eligibility requirements, including a points-based system that ranks all eligible applicants according to factors such as skills, work experience, language ability and education. With the introduction of the November 19, 2016 Ministerial Instructions, the process remains relatively consistent but the calculation of points will significantly change.

A major criticism of the Express Entry program when it launched in January 2015 was that it disproportionately favors certain applicants who were able to obtain Labour Market Impact Assessments or Provincial Nominee Program-based job offers. Moreover, the system does not provide additional points to applicants who studied in Canada or who have a permanent job offer in a high-skilled position that is exempt from the Labour Market Impact Assessment, including, but not limited to, NAFTA Professionals and Intra-Company Transferees already working in Canada.

The November 19, 2016 Ministerial Instructions address these criticisms. The changes follow the Canadian government's announcement that it will increase the number of permanent resident visas it will issue in 2017 calendar year. The increase will positively impact skilled workers, immigrant families, and international students obtaining a Canadian educational credential. Under the economic skilled worker categories, Canada seeks to increase the number of Permanent Residents under the economic category from 160,600 to 172,500.

Targeted Improvements to the Express Entry Program Points Allocation System

The following significant changes will become effective November 19, 2016:

Material Change

Current

New

Canadian Work Experience that will receive additional points

High-skilled (NOC O, A or B); full-time (or the part-time equivalent) with one or more employers; and, acquired within 10 year period preceding the day on which points are assigned

Current criteria plus, to obtain additional points, Canadian Work Experience must be remunerated by the payment of wages or a commission.

Qualifying Canadian Job Offer that will receive additional points

Highly-Skilled Candidate if s/he has a positive Labour Market Impact Assessment to support the qualifying Canadian job offer

OR

All Provincial Nominees

High-Skilled Candidates if:

1) a positive valid Labour Market Impact Assessment has been issued

2) the Candidate is an LMIA-based work permit holder; or

3) the Candidate is an LMIA-exempt, employer-specific work permit holder, obtained pursuant to a Free-Trade Agreement (i.e. NAFTA professionals), significant benefit work permits (Intracompany Transfers) and reciprocal employment AND the Candidate currently works for the employer listed on the work permit; that employer has provided a valid permanent job offer to the Candidate; and, the Candidate has at least one year of continuous full-time work experience with that employer in a High-skilled profession.

OR

All Provincial Nominees

Points Awarded for Qualifying Canadian Job Offers will be reduced overall

600 points for those with a qualifying Job offer

50 points for a Candidate with a qualifying job offer in a National Occupational Classification (NOC) 0, A or B occupation.

OR

200 points for a Candidate with a valid job offer in a NOC 00 occupation (Executive Roles)

OR

600 points for all Provincial Nominees

Points Awarded for Canadian Educational Credentials

None

15 points for a one-year or two-year diploma or certificate from certain Canadian institutions

OR

30 points for a degree, diploma or certificate of three years or longer from certain Canadian institutions including a Master's, professional or doctoral degree

Points Calculation:

Educational Credential Evaluation (ECA) for credentials obtained outside of Canada

The Candidate must obtain an ECA for every degree credential from a foreign institution

A Candidate who has a Master's, professional or doctoral level credential will only need an ECA for the highest level of educational credential to obtain points for every lower educational credential

Points & Validity: Language test results

Language Test assessments remain valid for two years from the date issued

When the results of a language test are more than two years old, points cease to be assigned for the language and the CRS points will be adjusted

Process Change:

Submission of documents to support the Invitation to Apply

60 days to submit the documents and information

90 days to submit the documents and information

Application Process After November 19, 2016

As a prerequisite to be considered for the Express Entry program, each applicant must first meet the requirements of Canada's original Permanent Residency programs, including but not limited to the points-based Federal Skilled Worker or the Canadian experience-based Canadian Experience Class.

Step One: Determine the Applicant's Points under Express Entry

A wide variety of factors are considered to determine an individual's Comprehensive Ranking System (CRS) points. The CRS profiles an applicant's biographic background including educational achievements, work experience history and language skills, and each Applicant will receive a numerical score from the CRS. The maximum possible number of CRS points is 1,200. The applicant enters the Express Entry pool to have his/her numerical CRS score assessed against other applicants in the pool.

Step Two: Entering the Express Entry Pool and Rounds of Invitations

Approximately every two weeks, Immigration, Refugees and Citizenship Canada (IRCC) releases a minimum CRS score (the minimum threshold) to determine which of the applicants in the Express Entry pool can apply for permanent residency. Those applicants who possess a CRS score ranking above the minimum threshold will receive an Invitation to Apply (ITA) for permanent residency. This determination is referred to as a Round of Invitation from the Express entry pool. The Express Entry process points-based analysis differs from other IRCC programs, including the Federal Skilled Worker Points process. The valuation of points are allocated differently and the minimum threshold required to obtain an ITA fluctuates under Express Entry. The minimum threshold score is not a static variable, therefore there is some flexibility inherent in the system that allows the Canadian government to adapt to varying economic immigration needs.

Step Three: Submitting the Permanent Residency Application within 90 days

Applicants who receive an ITA must electronically submit all of the application forms and documentation requested. The current process allows only 60 days to submit documents but, as of November 19, 2016, applicants must provide all requested documentation and information within 90 days.

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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