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‘Unprecedented’ changes to immigration system
By Howard Greenberg and Naumaan Hameed
|Canadian HR Reporter|Last Updated: 01/28/2013

For the Canadian immigration system, 2012 was a year of unprecedented reform. About 100 operational changes were introduced by Jason Kenney, minister of citizenship, immigration and multiculturalism. Since taking office in 2008, the minister has introduced more than 400 operational changes, a stark comparison to the 80 changes made by his predecessors between 2002 and 2008.

In accordance with the federal Economic Action Plan 2012, a number of initiatives and policies were announced, focusing primarily on addressing Canada’s economic and labour market needs while protecting the integrity of the system.

In working toward a “just-in-time” model that facilitates immediate access to key global talent, Citizenship and Immigration Canada (CIC) made significant changes to its temporary and permanent immigration programs.

CIC redesigned the Federal Skilled Worker Program (FSWP) to target a younger generation with proven language proficiency, in expectation such candidates will be better positioned to contribute economically. The introduction of the Accelerated Labour Market Opinion (A-LMO) under the Temporary Foreign Worker Program (TFWP) has also reduced significant delays in accessing foreign workers.

In order to maintain program integrity, recent legislative changes suggest CIC and Human Resources and Skills Development Canada (HRSDC) will also take a more proactive approach in monitoring and enforcing penalties against employers and foreign workers who are non-compliant with immigration laws. CIC is now able to confer specific powers and duties upon HRSDC, particularly in the context of A-LMO compliance reviews expected to occur in the first quarter of 2013.

The following is a summary of the key immigration changes of 2012, with a glimpse to 2013.

Implementation of A-LMO

In April 2012, HRSDC introduced the streamlined A-LMO program, which provides for the issuance of LMOs within 10 days of filing. Although recruitment is still mandatory, employers do not need to provide proof of recruitment efforts or extensive information about the position.

HRSDC implemented a new wage structure, allowing employers in appropriate circumstances to vary from the median or prevailing wage for an occupation. Under the new wage structure, employers can pay a wage up to 15 per cent lower than the prevailing wage for high-skilled occupations (NOC 0, A or B). To do so, employers must demonstrate the lower wage being paid to a foreign worker is the same as that being paid to their Canadian employees in the same position and location.

To be eligible to participate in the A-LMO initiative, employers must meet a number of defined criteria in addition to having maintained a clean record of compliance with the TFWP and providing consent to participate in a compliance review.

What employers need to know: Be ready for a compliance review. As A-LMOs are typically issued with minimal upfront scrutiny, employers should be prepared to undergo an extensive assessment if selected for a compliance review. Employers must be prepared to demonstrate: wages and working conditions are substantially the same as those offered in an A-LMO application; recruitment was conducted in accordance with minimum requirements and efforts were documented; the foreign worker was categorized under the correct NOC; and the foreign worker received a genuine job offer.

Quebec introduces F-LMO

Under the Facilitated Labour Market Opinion (F-LMO) process, Quebec has identified 44 specific occupations for which there is an ongoing labour shortage. The F-LMO process has two distinct features — a recruitment exemption for the specified occupations and a tiered wage system to allow the “prevailing wage” to vary based on experience required for the position.

What employers need to know: The ministère de l’Immigration et des Communautés culturelles (MICC) will now be assuming joint responsibility with HRSDC. MICC has undertaken a majority of the assessments of applications submitted under the F-LMO process and will work jointly with HRSDC to conduct genuineness and compliance reviews.

Regarding prevailing wage, MICC will consult Emploi-Québec’s Labour Market Information data to confirm the applicable wage tier by looking at the years of experience required for the position — not the experience held by the foreign worker.

Applications under the F-LMO have a high refusal rate based on concerns employers are filing under incorrect NOC codes to avoid recruitment. If even one duty in the job description can be captured by a non-exempt occupation, the application may be deemed ineligible. If unclear, the application may be transferred to the regular stream and the employer may be requested to recruit.

Visa office closures around the world

Visa offices in Damascus, Tehran, Berlin, Tokyo, Dhaka, Kuala Lampur and Buffalo, N.Y., have been closed.

As a result of the Canadian consulate closure in Buffalo, a streamlined process for filing applications in North America was introduced. The Canadian consulate now responsible for overseeing an application will be determined by an applicant’s residence in the United States.

The consulate in New York City will oversee applications from residents of Bermuda, Puerto Rico, St-Pierre et Miquelon and all U.S. states east of the Mississippi River. The consulate in Los Angeles will oversee applications from residents of all U.S. states west of the Mississippi River. People residing in Canada can apply to New York or Los Angeles.

Additionally, foreign nationals residing in Canada who hold a valid study permit or work permit and require a Temporary Resident Visa (TRV) must now apply for it either at the new Case Processing Pilot-Ottawa (CPP-O) or the visa office serving their country of nationality.

CIC is working towards a fully paperless system to facilitate information-sharing and communication among offices. On Dec. 17, 2012, CIC introduced electronic applications for temporary residents, so clients worldwide can submit an application online for a TRV, study permit or work permit. CIC will manage its workload more efficiently through the electronic transfer of applications to offices within its global network, where capacity exists.

What employers need to know: Plan early for frequent travellers. Due to the restructuring of visa offices in North America, there are limited options for urgent processing.

ICT eligibility requirements

CIC recently amended the eligibility requirements for foreign workers applying for a work permit under the Intra-Company Transferee (ICT) category. To qualify, foreign workers must now be currently employed by the multinational company with whose Canadian affiliate they are now seeking employment. Prior to June 2012, there was no requirement foreign workers be employed by the foreign entity at the time of application, but rather that they possessed at least one year of experience with the entity outside of Canada in the prior three years. All other criteria for ICT eligibility are the same.

What employers need to know: This change could affect employers looking to re-employ a former employee. To transfer a former employee to a related company in Canada through the ICT category, the foreign worker must be re-employed by the organization abroad. This can include placing the proposed worker on the
foreign entity’s payroll prior to the transfer, thus meeting the employment eligibility criteria under the ICT.

Canadian Experience Class

Effective Jan. 2, 2013, foreign nationals will only be required to demonstrate one year of full-time, high-skilled Canadian work experience in the last three years (as opposed to two years in the last three). It is important to note the eligibility requirement for recent Canadian graduates will remain as two years of full-time study, in addition to one year of full-time, high-skilled Canadian work experience.

Additional changes were made to language proficiency requirements.

Previously, language eligibility requirements would permit applicants to average their scores for different language abilities. An individual who scored below average in one ability could still pass the test if he offset it with a higher score in another.

Under the revised Canadian Experience Class (CEC), applicants must achieve a minimum score for each of the language abilities.

What employers need to know: The broadening of eligibility requirements will likely result in an increase in processing times.

Individuals who meet the one-year eligibility requirements should prepare their applications now and submit them on an expedited basis.

This will include scheduling and completing a language test from a designated language institute. Individuals who have difficulty meeting the new language requirements may be better suited for specific Provincial Nominee Programs (PNPs) or the FSWP, which either have lower language proficiency thresholds or permit averaging across language competencies.

To ensure high-skilled foreign workers can be retained by Canadian employers, CIC announced on Dec. 15, 2012, that applicants to the CEC program can apply for an open “bridging” work permit while awaiting finalization of their permanent residence applications — provided they meet the required criteria.

Open work permits will be issued for a duration of one year, as CIC anticipates permanent residence applications will be processed within this time. However, extensions will be considered depending on the circumstances.

Federal Skilled Worker Program

The new selection system for the FSWP will take effect on May 4, 2013, and the point selection criteria has been modified substantially. The new criteria place emphasis on: a minimum language threshold for speaking, listening, reading and writing in either English or French; younger applicants between the ages of 18 to 35 (inclusive); foreign educational credentials, if assessed as equivalent to Canadian credentials; previous high-skilled work experience (NOC 0, A or B) in Canada by the principal applicant or the spouse; and a minimum language threshold for any accompanying spouse.

CIC has also removed the ability of foreign workers who hold LMO-exempt work permits to obtain additional points under the arranged employment criteria, unless the work permit was issued pursuant to an international agreement.

What employers need to know: Applicants may no longer qualify under the FSWP based on the new selection criteria and will need to consider alternative permanent residence options, such as the CEC or PNP. Employers seeking to retain foreign workers through the FSWP must consider the long-term implications when obtaining a temporary work permit, as certain categories that are commonly relied upon will no longer qualify for arranged employment points.

Federal Skilled Trades Class

On Jan. 2, 2013, CIC began accepting permanent resident applications pursuant to the Federal Skilled Trades Class (FSTC). Only 3,000 applications will be accepted in the first year to keep processing times to a minimum. The selection process is based on a simplified pass-fail model.

To qualify, an applicant must: have a valid offer of employment for at least one year or hold a valid Certificate of Qualification issued provincially or territorially; meet basic language requirements; possess two years of work experience in the last five years in the trade associated with the job offer or Certificate of Qualification; and have the requisite education and experience outlined by the NOC code associated with the trade.

The NOC B positions and trades that now qualify under the FTSC include: industrial, electrical and construction trades; maintenance and equipment operation trades; supervisors and technical occupations in natural resources, agriculture and related production; processing, manufacturing and utilities supervisors and central control operations; and chefs, cooks, bakers and butchers.

What employers need to know: Employers seeking to retain foreign workers within specific trade-based occupations now have a mechanism through which to retain these workers as permanent residents.

Due to the limit on the number of applications, employers should file early.

Additionally, applicants will have to demonstrate minimum language skills in reading, writing, speaking and listening.

Howard Greenberg and Naumaan Hameed are immigration law specialists at KPMG in Toronto. They can be reached at hgreenberg@kpmglaw.ca, nhameed@kpmglaw.ca or visit www.kpmglaw.ca for more information.

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