Bringing in foreign workers a lengthy, error-prone process

Provincial nominee program easier to access, but legal advice still needed
By Uyen Vu
|Canadian HR Reporter|Last Updated: 03/25/2007

When Chantelle Pinder set out to get a work permit for a personal fitness instructor from Australia, she had no idea of the bureaucratic nightmare she was about to face.

True, personal fitness instructors aren’t all that rare a breed in Canada, but Pinder, HR manager at the Calgary Winter Club, was armed with a year’s worth of applications to make her case. Plus, the woman from Australia was more than just a personal fitness trainer. She was also a swim coach, a lifeguard and a snowboard and skiing instructor.

“She’s got one of those personalities that makes her extremely good at what she does. She knows how to coach people so that they push themselves. A lot of the swimmers here feel that since she’s been here, they’ve been advancing in leaps and bounds.”

That’s why, when the Australian told club management she had six months left on her student work visa, “we thought, ‘Okay, we’d better get started now because from what I hear, the immigration process can take a very long time,’” said Pinder.

Pinder said she was under the impression that, as long as there was an application filed with the provincial nominee program (PNP), the visa would be automatically renewed. As it turned out, she still needed to get the nomination approved at the federal level. But she didn’t find this out until after the instructor had returned to Australia for Christmas. Pinder had prepared a package based on the checklist of documents required, thinking that all the instructor had to do was walk into a Canadian consulate with the package and get approved within the month.

“She got there, and was told that it would take anywhere from three weeks to two years,” said Pinder.

In the meantime, the temporary work visa had expired so she couldn’t return to Canada.

“I phoned my contact at PNP in Alberta and said, ‘My problem is we’ve got an employee who’s stuck in Australia and we need her back.’”

Like Pinder, many employers fall into the trap of not allowing enough time to have applications processed. Or they make the mistake of using the provincial nominee programs to bring people in, rather than keep them, said Toronto-based immigration lawyer Evelyn Ackah.

“The PNP should be a long-term plan. It’s an enticement for the foreign worker — ‘If you come here for a year and everything works out, we’ll be prepared to support you in your application to get permanent residence status,’” said Ackah, a senior associate at Gowling Lafleur Henderson.

In the short term, employers would be better off bringing people in on temporary work visas or, in the case of someone just graduating from a Canadian post-secondary institution, a post-graduate work permit, she said.

Hiring foreign workers on these temporary permits has the benefit of letting employers assess the workers for fit and performance, said Ackah.

Once employers are confident they want to retain the workers, they could take advantage of the provincial nominee program. The chief advantage of using the program is the processing speed, said Ackah. Before PNPs were in place, people wanting to enter Canada on the basis of their skills had to apply for permanent residency as a federal skilled worker. Applicants under this program must have 67 points, awarded on the basis of language, education, work experience and other factors.

The process typically takes three to five years for those applying from outside Canada, said Ackah. Applicants who are already in Canada and working on a temporary work visa may find the process a bit faster — typically 20 months when applying through the Canadian consulate in Buffalo. That’s still considerably longer than going through the PNP, which could take six months at the provincial level and another six months at the federal level for security and medical checks, said Ackah.

However, employers should remember the PNP is not as flexible as the federal skilled worker program, particularly when it comes to meeting the skill level requirements.

“There’s very little room for discretion in the PNP. If I have 65 points and I need 67 (under the federal skilled worker program) and the person is strong and already here working, I’ll submit the application and make the case that the person is economically viable, is already integrated into Canadian society. On the PNP, there’s not that same level of discretion,” said Ackah.

What PNPs lack in flexibility they make up for in accessibility. Melanie Samuels, a lawyer specializing in immigration at the Vancouver firm Lawson Lundell, said her experience working with PNP staff has been positive.

“They’re very responsive. They’ll work with employers to collect what information or supporting documentation may be lacking in a file. There’s a lot of co-operation between employers and program officers, which is not always the case when dealing with immigration.”

One common pitfall for employers is not being able to prove they’ve made efforts in recruiting Canadians for the position, said Samuels. But “if you do fail in that aspect, (program officers) do give you an opportunity to correct it,” she said.

Meeting this requirement can be as simple as putting a position on the national job bank for 30 days, she said.

“It doesn’t require employers to spend thousands and thousands of dollars in advertising, but they have to show what they’ve done in order to find a qualified Canadian, and if they did have Canadians who applied, to show why those Canadians didn’t qualify,” said Samuels.

Despite the willingness of program staff to help, employers making PNP applications might be better off hiring a lawyer, who could help with the different nuances and emphases seen in different provincial programs. In B.C., for example, program officers generally look for expanding businesses and give little consideration to an employer looking to bring in relatives, said Samuels.

That’s in contrast with the program in Nova Scotia, which has a stream for close relatives of someone with an established business in the province, said Andrea Baldwin, a Halifax-based lawyer at Stewart McKelvey.

At the Calgary Winter Club, turning to a lawyer was exactly what Pinder did when she later had to hire a professional squash player from the United Kingdom. Her advice to other employers is to go through the process a few times with a lawyer before attempting an application on one’s own.

“At first I thought, ‘Heck I could do this. I could figure this out,’” said Pinder, looking back on her experience with the Australian fitness trainer. “But every time you thought you had it all submitted, they’d send something back to you saying, ‘Okay, now you need to submit this and this.’ And I swear it’s all stuff that I had submitted before, but they need it on another form now.”

As for the Australian, Pinder filed for a two-year temporary work visa to bring her back, on the advice of an Alberta PNP officer. They’re still working on making her a permanent resident through the PNP program.

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