It comes as no surprise that amidst all of the chaos and changes resulting from the COVID-19 pandemic, the Canadian and US immigration landscapes changed in many ways over the summer, both big and small. Processing of all types of immigration applications and travel has been exceptionally fluid and continues to be subject to unexpected change as Canada's response evolves in protecting Canadians and their wellbeing. Below are some of the highlights from the past few months.
US / Canada Border "Closure"
Since March, monthly announcements have been made regarding the US/Canada border closure. While it remains closed to non-essential travel, specifically leisure or holiday travel, both governments are allowing individuals to travel in various situations, the specifics of which are discussed below.
Canadian Immigration Changes and Updates
The current Order in Council ("OIC") focusing on travel provides that those entering Canada must demonstrate they are:
- Entering for an essential purpose;
- Not exhibiting any symptoms of COVID-19; and
- Meet an exemption listed in the most recent OIC.
In an oversimplification, exemptions generally include temporary foreign workers, international students with permits approved before March 18, 2020, and immediate family members of Canadian citizens and permanent residents. The OIC is updated each month, and the Field Law Immigration team is available to answer case-specific questions for those wondering if they meet an exemption at the time of travel.
Meeting an exemption does not automatically provide approval for an individual to travel. Foreign nationals are still required to obtain valid travel authorization to board a flight to Canada. This authorization can be in the form of an Electronic Travel Authorization (eTA) or a travel visa issued through a visa office in the individual's home country.
The Canadian government has imposed a 14-day quarantine requirement for every individual entering Canada, regardless of nationality or reason for entering. CBSA officers will decide whether the traveller is admissible based on their quarantine plan at the port of entry. Quarantine plans generally should include a transit method leaving the airport, an isolated place to stay, and information on how groceries and other essentials will be delivered to them.
If the traveller is in a position to demonstrate why they should be exempt from quarantine for an essential purpose, the CBSA officer has the authority to make that determination. A person may be exempt from quarantine to perform an essential job or function as identified by the government. A list of exemptions can be found here. It is important to note, if not exempted from the 14-day quarantine requirement, the Public Health Agency of Canada ("PHAC") will follow up with the traveller to ensure compliance. If the traveller is found to have breached the quarantine requirements, a fine of up to $750,000, six months of jail time, or being found inadmissible to Canada are potential consequences.
Early in the days of border restrictions and mandatory quarantines, those wishing to be exempt from the 14-day quarantine were required to email the PHAC to obtain pre-approval before travelling. Beginning on August 17, this pre-approval is no longer required. A traveller may still request an interpretive letter for a future travel exemption from the PHAC that may be taken into account, but a final decision will be made upon entry by the CBSA officer.
Waiving Biometric Requirements
As of July 15, 2020, the Canadian government implemented a public policy exempting any temporary residence applicants making an application from within Canada to be exempt from providing photos and fingerprints, also known as biometrics. This measure is intended to alleviate the backlog of applications when the public health crisis forced the Visa Applications Centres ("VAC's") in most countries, where biometrics are collected, to close completely. IRCC will move applications forward to completion and provide applicants with final decisions on their applications as soon as possible.
However, this exemption policy only applies to temporary resident applications that are physically present in Canada. Applicants abroad, as touched on below in "Processing Delays", are beholden to the VAC openings in their country of residence.
The processing of study permits is still ongoing. Those applying to extend from within Canada are likely to receive new study permits assuming the student meets all eligibility requirements. Inland study permit extensions have been recently approved, assuming the student's educational institution is open and operating in some capacity. For those applying outside of Canada, many students are in a holding pattern due to the requirement to provide biometrics. There is hope that students will be added to the essential travellers list; however, it remains under discussion by government officials at this time.
Students eligible to work on-campus, but forced to drop to part-time or take a break in studies for reasons relating to COVID-19 for winter, spring, and summer 2020, are eligible to work remotely for employers located on-campus. For those students holding valid study permits and working, there is no exemption to the maximum 20 hour work week unless they are working in an essential service.
Previously, restoring one's status within Canada required a foreign national (worker, student or visitor) to apply within 90 days of their status expiry date. As of July 14, 2020, a new public policy has been put in place to extend the period of time foreign nationals can restore their status. Any foreign national (worker, student or visitor) may apply to restore their status until December 23, 2020. This policy will apply to anyone whose valid status expired after January 30, 2020. Furthermore, this policy provides an option for those holding work permits to legally be employed while the restoration and new work permit application is in process.
A separate request to IRCC is required for work approval while the applications are in process.
Express Entry draws have continued throughout the summer. Draws have occurred in the following classes:
- Provincial Nominee
- Federal Skilled Trades, and
- Canadian Experience Class
The number of draws stayed reasonably consistent, as applicants saw four draws in June, three draws in July, and four draws in August.
Foreign Workers in Health Services
In recognition of their contribution, the Canadian government has created a permanent residency path for "failed" refugee claimants in the health services sector. The Canadian government has also deemed these health services workers as not requiring a work permit as they are essential workers.
As many aspects of the citizenship process are in person, including the test, the interview, and the ceremony, the Government of Canada has cancelled these steps until further notice. There have been instances where applicants have scheduled to take the Oath of Citizenship virtually; however, most cases are on hold until further notice.
For those with applications in process, IRCC has allowed an additional 90 days to provide documents relating to in-process citizenship applications. The applicant must notify their local IRCC office if they have been affected by COVID-19, are in isolation or have recently returned from another country.
Across the board, prospective immigrants and foreign workers can expect significant delays in normal processing times. Many VACs and Canadian embassies abroad are closed or only partially open. Foreign workers who could typically apply for work permits at the port of entry ("POE") now must apply in their country of residence. By way of example, work permits for applicants in the US (not eligible to apply at the POE) are taking 19 weeks to process and citizens of some European countries are taking up to 21 weeks to process. These lengthy processing times do not account for delays due to VAC closures and inabilities to obtain biometrics. Therefore, while the borders remain open to a relatively broad category of exempt foreign nationals (from family members to work permit holders), arriving in Canada is proving cumbersome.
Any employers currently waiting to receive a decision on a Labour Market Impact Assessment ("LMIA") are experiencing extensive delays. As the effects of COVID-19 are continuing to impact officers processing these applications, employers and workers are running short on time to manage their workforce. Furthermore, the Alberta government announced earlier this summer it was going to make efforts to prioritize Albertan jobs. This leads many to wonder what changes will be implemented to the Temporary Foreign Worker Program. Will these changes lead to further and more extensive LMIA processing delays? There is growing cause for concern moving forward that the ability to hire foreign workers in this fashion will be significantly transformed.
The Federal Court, where many immigration decisions are challenged, was previously subject to a suspension period. Currently, the suspension period has been lifted across Canada. The Court has resumed (almost) normal operations. Previously on the forefront of digitization, the Federal Court has further facilitated e-filing and electronic service and increased the availability of videoconference hearings. At the time of writing, no COVID related immigration refusals had been considered by the Federal Court.
Travelling to the US
Restrictions to enter the US have been communicated and implemented in a vastly different way than those in Canada. While Canada has delineated travellers into US travellers and non-US travellers, the current administration has imposed more direct restrictions. For example, travellers to the United States will be refused entry if they have visited any of the following countries in the past 14 days:
- European Schengen Area
- United Kingdom
- Republic of Ireland
Exemptions to this remain in place for those travellers holding US passports or Permanent Residence cards.
The current administration also announced the restrictions of many categories of non-immigrant visas until December 31, 2020. Specifically, these restrictions target H-1B and L-1 employees. Canadians still have the luxury of applying for new and extension L-1 applications at the POE's as they are considered visa-exempt.
Furthermore, the US Consulates worldwide remain closed. A tweet from the State Department on July 13 noted that "US embassies and consulates are beginning the phased resumption of routine visa services".
No specifics or locations were mentioned and appointment availability is subject to being delayed up to one year.
Visa processing and appointment availability vary greatly depending on the local country conditions.
It continues to be important for employers and travellers alike to ensure foreign workers and returning residents and students are prepared at the border.
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.