After many years of study and discussion, changes to Canadian immigration laws have reached the final state of implementation. This long process is the culmination of government studies, cross Canada consultations and a review process, which has been managed by at least two ministers responsible for citizenship and immigration.
The result is a well-organized legislative and regulatory regime that presents traps and liabilities for the unwary. For HR professionals there is a need to develop a corporate immigration strategy to address various hiring scenarios and ensure maximum benefit and minimal liability from the new legislation.
This new act and its regulations come into effect on June 28, 2002. Misrepresentations will have serious consequences, as will the contravention of status in Canada. Comprehensive procedures should be instituted by corporations to implement a due diligence process that addresses the employer's requirements, the employee's obligations and an orderly application process, whether it be for a work permit or permanent resident status.
I. The Immigration and Refugee Protection Act, 2001 and Immigration Regulations, 2002
Generally speaking, what is the difference between the Immigration Act, which was passed on Nov. 1, 2002, and the Immigration Regulations, which were published on June 14, 2002?
This legislation reorganizes immigration law. Its format clearly separates activities, (such as coming to Canada), and categories for entry and maintaining status. It creates a clear framework for rules to be developed relating to specific groups such as students, temporary foreign workers and immigrants.
Although the new act is considerably simpler to read and understand than the previous legislation, the bad news is that it is merely "framework legislation." This means that core principles are set out in the act but most of the operational details are left up to the Minister of Citizenship and Immigration to enact by way of passing regulations. In other words, most of the rules will be set out in regulations, but they can be changed at any time without notice, and the changes may be applied retroactively to existing applications.
The act itself does not describe the basic rules for acquiring and maintaining work permits and permanent resident status, those rules are contained in the regulations.
Changes in terminology
What are the significant changes in the immigration terminology that will be of importance to HR professionals?
Every person other than a permanent resident (landed immigrant) or Canadian citizen is a "foreign national." Previously, a foreign national seeking to work temporarily in Canada applied for an "employment authorization"; a foreign national seeking permission to study formerly applied for a "student authorization." These status documents are now referred to as a "work permit" and a "study permit."
In terms of entering Canada, a foreign national must, unless exempted under the act, obtain a "temporary residence visa." This replaces the former reference to a visitor visa.
The concept of "returning resident permit" has been removed from the legislation with the introductions of a "permanent resident card" and new rules for maintaining "permanent resident status."
The issuance of a "minister's permit" for entry in situations where the applicant is inadmissible is now referred to as a "residence permit."
Permanent resident cards
Our employees who are Canadian permanent residents possess a "record of landing." Will this continue as proof of permanent residence?
The existing "record of landing" is being replaced with a "permanent resident card." The act provides for the issuance of a secure photo ID card, to be called the "Maple Leaf card," as proof of permanent resident status. All permanent residents issued immigrant visas after June 28, 2002 will be provided a Maple Leaf card. Existing permanent residents will have until Dec. 31, 2003 to exchange their record of landing for the Maple Leaf card.
The Maple Leaf card will be valid for five years and will be renewable if the immigrant can demonstrate actual physical residence in Canada for at least two years (730 days) during that five-year period (1,825 days).
In the past, we have had problems recruiting employees to Canada if they are living with partners who are not their legal spouses, unless we could also obtain a work permit or permanent resident status for the partner. Has this situation changed?
Unmarried common law partners of principal applicants (including same sex) will be accorded treatment as accompanying dependents in both permanent residence and work permit applications. To qualify as a common-law partner a person must cohabit in a conjugal relationship with another person for at least one year. A person who has been in a conjugal relationship with another person for at least one year, but has been unable to cohabit with the person due to exceptional reasons such as persecution or any form of penal control, may be considered a common-law partner of the person on humanitarian and compassionate grounds.
In circumstances where our employees have had inadmissibility issues due to a criminal record, often the offences were relatively minor and occurred many years ago. Have any changes been introduced to address this situation?
The current law prohibits the admission of persons who have committed relatively minor offences, necessitating a time consuming and uncertain application for a "Declaration of Rehabilitation" or a "Minister’s Permit." Under the new act, individuals convicted of minor offences, where at least five years have elapsed since the completion of the sentence, will be deemed rehabilitated. Individuals convicted of more serious offences will be deemed rehabilitated where at least 10 years have elapsed since the completion of the sentence. If an individual is deemed rehabilitated, then the person will not have an inadmissibility issue arise on entry to Canada.
What are the implications under the new law for HR managers who provide written documentation in support of a work permit application?
A new class of inadmissibility is created for persons who make misrepresentations. This includes persons who make a material misrepresentation or who withhold information on a relevant matter that could induce an error in the administration of the act. This provision has serious implications for HR professionals involved in a person’s admission to Canada.
A special provision has been included which states a Canadian permanent resident or foreign national, who makes a misrepresentation, is inadmissible to Canada for two years.
A misrepresentation will now include the withholding of material facts in relation to any decision-making process. Furthermore, a new offence has been included: counselling a misrepresentation. This is a key area of concern for HR representatives who prepare documentation in support of entry of the employee/applicant to Canada.
II. Work permits: a new approach
Our company is dependent on ensuring that we can transfer key workers to Canada or recruit new workers in an expeditious manner. Has the legislation assisted employers in achieving this objective?
There are a number of new and innovative approaches which have been adopted in the regulations for assessing and processing work permit applications.
Persons specifically exempt from obtaining work permits
Under the old rules, certain employees were exempt from obtaining a work permit. Will these exemptions continue and have they been modified?
The new provisions include circumstances where the employee will not require a work permit, even though a work activity is being undertaken. Many of these activates were already excluded from the work permit requirement, but there is now more clarity. The definition of a business visitor is introduced with express language excluding certain individuals from the obligation to obtain a work permit. (See below)
Of particular interest to corporate employers is the addition of guest speakers to this list. This includes commercial speakers or seminar leaders delivering a seminar that lasts no longer than five days.
How can we identify whether our employee is a business visitor?
The first change is the introduction of the concept of business visitor, which is defined in a similar manner to the definition used in the North American Free Trade Agreement. A business visitor is a person who seeks to engage in international business activities without directly entering the Canadian labour market. This will include after sales service in circumstances similar to the NAFTA provisions currently used by American and Mexican citizens.
To qualify, the business visitor must be a representative of a foreign business, remunerated outside Canada, and have their principal place of business and earn their livelihood outside Canada. Many workers who previously obtained employment authorizations may be entitled to now enter Canada as business visitors.
CAUTION: This assessment is critical and must be well documented. In circumstances where a person seeks entry as a business visitor and is in fact assuming employment requiring a work permit there are serious compliance consequences arising by reason of misrepresentation or performing activities without proper status.
What is "work?"
When providing immigration assistance to my employees, I have experienced difficulty determining whether my employee will in fact be working or simply entering Canada as a business visitor. Do the Regulations provide any assistance?
The regulations provide a definition of "work" as an activity for which wages, commission or other valuable consideration is earned, or an activity that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market. This provides considerable assistance in making the preliminary decision on the need to apply for the work permit. It should be noted that work does not necessarily require the payment of remuneration – performing an activity which competes with work activities of Canadian citizens or permanent residents is sufficient to trigger the requirement for a work permit.
The immigration department has provided the following illustrations of activities that do not constitute work:
•volunteer work for which a person would not normally be remunerated, such as sitting on the board of a charity or religious institution, being a Big Brother or Big Sister to a child, being on the phone line at a rape crisis centre (normally this type of work would be part time and incidental to the main reason that a visitor is in Canada);
•unremunerated helping of a friend or family member during a visit, such as a mother assisting a daughter with child care, or an uncle helping his nephew build his own cottage;
•long-distance (by telephone or Internet) work done by a visitor whose employer is outside Canada and who is remunerated from outside Canada; and
•self-employment where the work to be done would have no real impact on the labour market, such as a U.S. farmer crossing the border to work on some fields that he owns or a miner coming to work on his own claim.
III. Structure of the new work permit system
Determining the category of work permit application
Our company has always contacted our local Human Resource Development Canada (HRDC) office to make an application for a job validation based on the labour market shortage of the skill set required for the employee's position. Should our approach change under the new law?
This is a good illustration of the need to develop a corporate strategy or response to processing work permits. In some situations, there is a decided advantage to avoiding the HRDC process and proceeding under a provision that permits processing without a job validation (formerly referred to as an employment validation exempt category application). On the other hand, the corporation may wish to make provision for a number of job validations based on a continuing need and the acquisition of a bulk or blanket approval may provide the certainty necessary to make job offers -- particularly to newly recruited employees.
As a general approach to analyzing the immigration documentation required, employers are advised to:
•First determine if the employee can be properly categorized as a business visitor (avoiding the need for a work permit).
•If there is in fact an employment activity (not a business visitor), is it exempted under the Regulations from the need to obtain a work permit?
•If there is an employment activity for which a work permit is required, is there an exemption (i.e. intra-company transfer, significant benefit to Canada), which can be applied?
•If no exemption is available, can the employer meet the new test for a job validation?
It should be noted that there might be a substantial advantage for an employer to seek a job validation or work permit in circumstances where the employment may be categorized as a business visitor activity. Specifically, there are advantages in terms of points awarded if the employee wishes to apply for permanent resident status.
Changes to the exemption categories: intra-company transfers
As a human resources representative, I have often been confused by the different criteria that are used to determine the eligibility of an intra-company transfer under the GATS, NAFTA and E-15 exemption. Has this assessment process been improved?
Although the regulations do not specifically address this issue, it is proposed that changes will be made to the E-15 exemption to permit the issuance of a work permit to not only a senior manager or executive, but also an employee possessing specialized knowledge. To qualify, the individual would have to have one year of prior work experience with the transferor company in the previous three years. This is a significant change as it permits employees with specialized knowledge, who do not necessarily hold senior positions, to obtain work permits pursuant to the E-15 exemption -- thus making the E-15 exemption more similar to the GATS and NAFTA provisions. Furthermore, the E-15 exemption would continue to be unrestricted to all nationalities. Therefore, the proposed change would result in the application of a single category to obtain an intra-company work permit.
New approach to job validation
What are the new requirements that need to be satisfied to obtain a job validation from HRDC?
The current process was based on a presentation to HRDC with respect to the labour market impact of the proposed employment in Canada. The HRDC officer provided a written opinion that there was no "adverse impact" to the employment opportunities of Canadian citizens or permanent residents.
Under the new regulations, HRDC must consider whether the employment will produce a positive or neutral economic effect in order to approve the validation. If the HRDC officer is of the opinion that the employment would produce a negative economic effect, then the validation application would be refused.
The regulations allow HRDC to also consider other elements that might indicate a benefit to Canada and Canadian job seekers. This recognizes that some of these benefits may offset concerns HRDC would otherwise have with respect to the employer’s recruitment efforts. It should be noted that HRDC is to provide an opinion based on all the expertise and labour market information available to it, rather than being limited in the criteria that it can take into consideration, as in the past.
An opinion provided by the Human Resources Development office shall be based on the following factors:
whether the work is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
whether the work is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
whether the work is likely to fill a labour shortage;
whether the wages and working conditions offered are sufficient to attract Canadian citizens or permanent residents to, and retain them in, that work;
whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and
whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.
The regulations further provide the authority to permit large employers to enter into blanket or pre-approved validations for a number of employees involving different job functions and duties as a part of a corporate human resource strategy. This is an innovative approach but must be viewed with caution by employers as there may be express obligations undertaken by the employer as a condition of approval which may be difficult to subsequently satisfy. This may occur if downsizing is necessary due to a change in the economy.
Reinstatement of employment status: failure to extend, change of job function or location of employment
Our human resource process includes a comprehensive follow-up process for existing employees on temporary status. From time to time, we are advised of an employee who may have had a change in job duties or did not file the extension application within the validity period of current status. What is the process to remedy this situation?
The regulations provide some clarity in dealing with "slips." An employee who goes out of status by failing to make application to renew his status prior to expiry must make the application for restoration of status within 90 days after losing status. This restoration provision addresses the loss of status by reason of failing to comply with a condition in the work permit, a change in the type of work, location of work, employer and period authorized to stay in Canada. The request is submitted from within Canada to the Case Processing Centre.
Consequences of unauthorized employment
What would be the consequences of an employee failing to have his or her employment status reinstated within the required 90-day period?
The regulations present a strong compliance policy objective. If an application for reinstatement of status is not made within 90 days of the breach of status, then a fresh application for a work permit must be submitted outside Canada to a visa office. Pending the issuance of a new work permit, the employee does not have valid authorization to work in Canada.
The strict compliance initiative is also reflected in the treatment of employees who, having entered Canada as business visitors, proceed to work without authorization. The regulations prohibit visa and immigration officers from issuing a work permit to such a person for a period of six months from the date of the contravention.
These provisions could have considerable consequences if the continuity of employment of a key employee is impacted. The regulations do not permit exceptions to these rules.
IV. Study permits
Many of our existing employees wish to take courses concurrently while working. We are also facilitating the transfer of employees' families including children who will be attending school. What are the rules that determine the requirement to obtain a study permit?
There is some good news for employees and their families. The regulations establish that:
•The accompanying dependent children of an employee, who is in possession of a work permit, do not require a study permit to attend primary or secondary school. Please note however, an employee in Canada as a business visitor does not benefit from this exemption and thus must obtain a study permit for each child prior to enrolling them in school.
•There is no longer a need to obtain a study permit for a course of study the duration of which is six months or less.
CAUTION: A student who has previously studied in Canada without first obtaining a student permit is not eligible to obtain a study permit for a period of 6 months from the date of the contravention.
V. Skilled worker selection: permanent resident status
I have read a great deal about issues with the new selection system for skilled workers. Our employees are concerned about whether they can still qualify for permanent residence. Can you provide some general comments about the new criteria?
The new skilled worker selection grid evaluates applicants based on six factors. The selection criteria have been altered significantly. The criteria are intended to permit individuals who can demonstrate that they can become economically established in Canada.
The pass mark is 75 points, based on a 100-point system. The mix of points for each one of the six factors is designed to reflect that factor's importance to the overall assessment.
Applicants who have an attachment to Canada, with at least one year of work experience generally meet the selection criteria, as explained below. This attachment takes the form of education in Canada, employment in Canada, having a job offer to be employed in Canada and having a close relative in Canada. The employee’s spouse may also be considered for such purposes. The following are factors are discussed below.
Maximum 10 points
Between 21 and 49 years of age at time of application. Lose two points for each year of age older than 49 years or under 21 years.
This factor was adopted after a consideration of the data collected about immigrants, with specific emphasis on the correlation of the individual’s age to earning power. The premise is that applicants who start fresh in Canada will achieve the greatest long-term economic growth if they are within the above age parameters.
Maximum 25 points
This factor represents a significant change from the previous maximum points for education (only 16 points for tertiary education in the current criteria). The premise is that the greater the education, the more likely that economic establishment will be achieved and maintained, despite fluctuations in the economy. It should be noted that a trade certificate might result in the same points as a university degree, depending on the number of years of full-time study.
Maximum 24 points
High proficiency: Points will be awarded on the basis of English and French abilities in four skills: speaking, understanding, reading and writing. Four points per skill in the first official language and two points for each skill in the second official language.
Moderate proficiency: Points will be awarded on the basis of English and French abilities in four skills: speaking, understanding, reading and writing. Two points per skill in the first official language and two points for each skill in the second official language.
Basic proficiency: Points will be awarded on the basis of English and French abilities in four skills: speaking, understanding, reading and writing. One to two points for each skill in the first official language and one to two points for each skill in the second official language, to a maximum of two points.
This is a critical factor. The applicant must demonstrate one year of work experience prior to the date of the filing the application for permanent residence. The first two years of work experience provide the majority of the points available in this factor.
Maximum 10 points
There are two methods of achieving points in this category.
The first is arranged employment based on a permanent job offer validated by HRDC.
The validation process for this factor requires that HRDC provide an opinion on:
•whether the job offer is genuine;
•employment is not part time or seasonal; and
•wages and working conditions for the employment would be sufficient to attract and retain Canadian citizens.
Second, if the employee is in Canada on a work permit issued pursuant to a job validation, NAFTA, GATS, or an employment exemption category.
The work permit must be valid for at least one year, the employee must be working in that employment and the offer of employment must be provided on an indeterminate basis.
Maximum 10 points
This new factor is intended to supplement the first five factors by giving credit for a spouse’s education, previous work experience or education in Canada, the existence of arranged employment or the presence of a close relative in Canada.
Age of dependent children
Many of our employees have children who are older than 18 but not enrolled in full-time school. They are concerned that their children can not be included in their permanent residence application. Are there any changes to the age limit for inclusion of children in permanent residence applications?
The age for dependent children is raised from under 19 to under 22 years of age. Additionally, children older than 21 may continue to be considered dependent if they are full-time students or mentally or physically disabled and dependent on their parents.
Although individuals are required to meet the financial establishment requirement, our employees are already in Canada and receiving remuneration. Are they subject to this provision when submitting an application for permanent resident status?
A new provision in the regulations requires immigrants to show that they have sufficient funds to establish in Canada. The requisite amount is equivalent to one half of the yearly income listed in the Low Income Cut-Off (LICO) guideline published by Statistics Canada necessary to support a family according to family size. For example, a family unit of three persons would have to have at least $13,600 to be accepted for permanent residence.
However, if the individual received points under arranged employment (validated, or in Canada under GATS, NAFTA or an exemption) there is no requirement to meet this financial criteria.
Transition rules, retroactive assessment of applications
Our employees are concerned about applications that they have already filed with a visa office prior to June 28, 2002. Under which selection system will they be assessed?
An applicant who applied before Dec. 31, 2001, and who had the application assessed by March 31, 2003, will be assessed under the old selection criteria with a pass mark of 70.
Those applicants who applied before Dec. 31, 2001, and who have not had their applications assessed by March 31, 2003, will be assessed under the new selection grid with a transition pass mark of 70.
Those applicants who applied after Dec. 31, 2001 who have not received selection decisions by June 28, 2002, will be subject to the new selection criteria and a pass mark of 75.
If an applicant applied before Dec. 31, 2001, the person may withdraw the application and request a refund of the processing fees at any time before the visa office has made a preliminary evaluation (paper screening) of the application. If an applicant has received an invitation to an interview, a letter indicating that the interview will be held at a future date, or instructions to undergo a medical examination, then the applicant is not eligible for a refund.
The concern is the intention to retroactively use these new selection rules and higher pass marks to fail applicants presently in process. As there may be in excess of 600,000 applicants in immigration processing backlogs worldwide, this decision would have a dramatic impact on their success and the ability of future applicants to succeed.
VI. Maintaining permanent resident status
Our corporate policy is to assist employees with obtaining permanent resident or landed immigrant status. We are also mindful of our need to transfer employees to assignments abroad to compete in the global marketplace. Can employees accept transfers while maintaining their permanent resident status?
Significant changes have been implemented to ensure that Canadian companies can compete at the global level. Measures evaluating the employee’s intention during absences from Canada and applying the rule for the loss of status if away more than six months have been eliminated. Similarly, the issuance of a returning resident permit is no longer required to protect status while absent.
An immigrant’s obligation is to remain in Canada for two years out of each five-year period to maintain permanent resident status. This permits immigrants to pursue worldwide activities without the risk of losing status, provided the absence is less than three years. This rule is subject to certain exceptions.
In circumstances where the immigrant is employed by, or under contract to, a Canadian business and is being assigned to a full-time position outside Canada with an affiliated enterprise or business or a client of the Canadian business, then the time spent outside Canada is deemed to be time spent in Canada for the purpose of renewing the Maple Leaf card. In other words, any time outside Canada on an intra-company transfer does not count in the calculation of days outside Canada for the purpose of loss of permanent resident status.
Furthermore, the time spent outside Canada of the accompanying spouse of a permanent resident who is sent abroad on behalf a Canadian business is counted as time in Canada for the purpose of renewing the Maple Leaf card. Additionally the time spent outside Canada of the spouse accompanying a Canadian citizen abroad, for whatever reason, is counted as time in Canada.
VII. Security concerns following Sept. 11
An increasingly important consideration is the admissibility of an applicant who may be subject to security and criminality evaluation by reason of prior criminal contravention or security issue. However, the background check and security review process will necessarily become even more intensive in light of last September’s attacks in the United States and the awareness of the potential for terrorists to enter Canada through the immigration selection system.
There will be an increase in the number of investigations of persons who fit certain security profiles and have particular characteristics, including connections to various regions of the world. This is a real and inevitable consequence of Sept. 11, 2001. It is necessary for travelers to obtain detailed documentation addressing the reason for travel and the activities to be undertaken in Canada. The entry package should address all potential issues.
Howard D. Greenberg is a partner of Greenberg Turner, a human resources law firm, located in Toronto. He is the vice-chair of the Immigration and Nationality Law Subcommittee of the General Practice Section of the International Bar Association (2000-2002), a past-chair of the National Immigration Section of the Canadian Bar Association, and the past-chair of the Citizenship and Immigration Section of the Canadian Bar Association (Ontario). He may be contacted (416) 943-0288, email@example.com or visit at www.gt-hrlaw.com.