Time to examine relocation policies in light of pending immigration changes

Canadian immigration laws are changing. New rules give the government more complex tools for managing and controlling the system. HR professionals can expect a number of changes that will affect both sending employees abroad and bringing workers to Canada.

On Feb. 21, 2001, the Immigration and Refugee Protection Act was introduced in Parliament and it has, in a relatively short period of time, passed two readings in the House of Commons. It is presently under active consideration by the Standing Committee responsible for immigration matters and it’s expected that the legislation will receive royal assent by this summer.

This new bill is the most comprehensive change to immigration law in 25 years. It is considered “framework legislation” that sets out the principals and components of the immigration program.

There are wide and considerable regulation-making powers under this legislation that deal with matters relating to defining who can immigrate to Canada, how immigration officials will exercise their powers and the actual procedures for processing and handling applications.

Spouses and dependents

Definitions of spouse will change under the new act. A common-law partner can be included in an application provided he or she has been cohabiting in a conjugal relationship with the principal applicant for at least one year. This definition includes opposite sex and same sex relationships.

Another benefit of this redefinition would be the ability for common-law spouses to be included under the Spousal Employment Authorization program, making them eligible for an Employment Authorization without having to obtain job validation from Human Resources Development Canada (HRDC).

The new legislation also provides the authority to create an in Canada landing class for spouses, common-law partners and their dependent children. If the applicant can demonstrate that the relationship is genuine and entry to Canada was not obtained through misrepresentation, an application for landing will be processed from within Canada rather than at a Canadian consulate or embassy.

Another change concerns medical conditions. Currently, the sponsorship of a spouse who has a medical condition that is determined to be an excessive demand on health and social services would likely be refused. Under the new legislation, a medical condition will not be relevant to the approval of a spousal sponsorship application.

Children will now be defined as those of a principal applicant or accompanying spouse who are under 22 years of age. It should be noted that currently, there is no provision for the issuance of an Employment Authorization to an accompanying child, causing difficulties for older children wishing to work.

Maintaining status during absences from Canada

There is probably no area of immigration law that has caused greater confusion than the application of the rules for maintaining or losing permanent resident status. Currently, an applicant is deemed to lose such status if the absence from Canada in any 12- month period is more than 183 days. This is a presumption that can be challenged by the permanent resident through presenting evidence of attachment to Canada and the temporary nature of the absence from Canada. The new legislation will replace the 183-days rule with the two-out-of-five-year rule, described below.

One of the most recognized reasons for being absent from Canada is for the purpose of undertaking an assignment on behalf of a Canadian employer. Status is ordinarily preserved by obtaining a Returning Resident Permit before departure from Canada or at a consulate or embassy once outside Canada.

The Permanent Resident Card: Each permanent resident will be issued a Permanent Resident Card (status document) permitting re-entry to Canada only if the holder has complied with the newly established residency obligations.

The two-out-of-five-year rule: A permanent resident maintains immigrant status if in a five-year period he or she has been physically resident in Canada for at least two years.

If there are more than three years of absence from Canada, then permanent resident status may be lost unless the immigration official is satisfied that humanitarian and compassionate considerations exist to justify the retention of immigrant status.

It should be noted that this rule is subject to certain exceptions:

•If the permanent resident is employed full-time by a Canadian employer and is absent from Canada on behalf of that employer, the time spent outside Canada will not be counted toward a period of absence from Canada. A major issue of concern is that Canadian employees may join the local payroll of the affiliated Canadian company abroad, and therefore not enjoy the benefit of this exemption as they will not be receiving remuneration from a Canadian source. The anticipated regulations will clarify this issue, as it is unclear that the immigration department intended this result.

•If the permanent resident is the spouse or child of a Canadian citizen, the loss of status rule will not apply.

•If the permanent resident is the spouse of a permanent resident who is employed full-time by a Canadian employer and is assigned outside Canada on behalf of that employer, the loss of status rule will not apply.

Selection criteria

for skilled workers

Canada admits approximately 230,000 immigrants each year, with future forecasts showing an increase to approximately 250,000 immigrants. Of this number approximately one-half are selected under the Skilled Worker Category based on their age, education, occupation demand, work experience, language capability and personal suitability. For immigrants making application in this category, the act would permit:

•Moving away from an occupation-based model to one focused on flexible and transferable skill-sets. The current selection system screens applicants on intended occupation and the need for these occupations in Canada. The proposed system will look at the applicant’s overall qualifications — current occupation will not be the key factor.

•Assigning more weight to education.

•Increasing the weight attributed to knowledge of an official language, but ensuring that the language factor is not a bar to admission.

The changes will be introduced by way of regulation shortly after enactment of this new legislation. It is expected that the pass mark, or the point assessment required to qualify for an immigrant visa, will be set with a view to encourage a higher level of immigration in the future.

In Canada landing class

At present, most foreign workers in Canada must submit their application for permanent resident status at a Canadian consulate or embassy, such as the Area Processing Centre in Buffalo, N.Y. The new legislation would allow foreign workers, who have employment validations issued by HRDC, to submit their applications for permanent resident status from within Canada. As the regulations have not been introduced at this time and there is still considerable discussion as to the final criteria.

Expanding penalties for misrepresentation

The legislation is viewed as a “get tough” approach to immigration. It is therefore not surprising that there are subtle changes which HR professionals should be aware of in advising their employees.

Misrepresentation: If a foreign national directly or indirectly misrepresents or withholds a material fact relating to a relevant matter that induces or could induce an error in the administration of the act, he or she may be found to be inadmissible to Canada for a period of two years. This provision could result in a misrepresentation for failing to disclose a medical condition or criminality issue, even in circumstances where the issue is not raised by immigration. It is unclear at this time as to how strictly this provision will be applied.

Counselling misrepresentation: A new provision has been added making it an offence to knowingly counsel, induce, aid or attempt to counsel any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of the act. Human resource professionals must be careful to ensure that the advice provided to applicants and employees seeking an employment authorization is accurate and fairly reflects the activities that will be undertaken. For example, it would be a contravention of this provision to counsel an employee to submit an application as a business visitor when in fact the employee will be carrying on employment duties in Canada.

General offences: Employing non-authorized persons

Due diligence obligation: A person who fails to exercise due diligence to determine whether an employee has the appropriate employment authorization is deemed to know that the employment is not authorized. To avoid this liability it is necessary to show all due diligence was exercised to prevent any unauthorized employment.

Of particular concern to HR professionals are situations where there is a merger or a purchase of an existing business with employees who may possess temporary status attached to the former business or, of greater concern, fail to present any appropriate employment status.

Clearly, there is an obligation, as a part of any corporate due diligence, to ensure that employees are authorized for such employment and that the appropriate evidence is contained in the employee file. HR professionals must ask the right questions at the outset.

This new immigration law has not been proclaimed into law. The final stages could see significant changes as interested parties continue to make their views known to the Minister of Citizenship and Immigration. It is clear, however, that HR professionals must practice greater diligence to ensure both compliance with the legislation and that they take full advantage of favourable provisions in approval criteria, procedures and processes.

Howard D. Greenberg is a partner with the Toronto law firm of Greenberg Turner. He is a specialist in immigration law and co-editor of the Immigration Law Reporter. He may be contacted at (416) 943-0288.

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