A Look at the Temporary Foreign Worker Changes on April 1st
On April 1, 2011, the Harper Conservatives pushed through sweeping changes to the Temporary Foreign Worker Program (TFWP): a new rule, known colloquially as “4-in, 4-out”, which imposes a limit on the work permits of foreign nationals who are in Canada. It means that after a four year period these workers have to leave the country and can only reapply for a subsequent permit after another four years has passed.
As of April 1 , 2015, the majority of temporary foreign workers who were granted permits on or before the date the regulation was passed will no longer be legally permitted to work in Canada. Many of these temporary foreign workers may end up seeking the aid of an immigration law firm and lawyers in Canada to help them navigate through this change.
The regulation was promoted by the conservatives as a means to give Canadian citizens and permanent residents precedence, in matters of employment. However, in most cases TFW can only be hired through an LMIA approval, which requires up to 8 weeks of advertising of the position to Canadians and permanent residents at an average wage for the region. Effectively, in order to hire TFW, the employer has to prove that no Canadian wants the job, or has the requisite skills. Immigration lawyers in Canada view the justification as difficult to maintain because Canadians did not want the job in the first place.
Moreover, a recent report by the parliamentary budget office (PBO) on TFW proves that they work mostly in low paying agriculture, restaurant or nanny positions. The report suggests that the positions available are given to temporary foreign workers due to the employer’s unwillingness to raise the wages offered.
Select temporary foreign workers will be exempt from the “4-in, 4-out” rule of TFWP. These include higher skilled positions (NOC 0 and A), employees working under international agreements such as NAFTA, applicants to the Seasonal Agriculture Workers Program, and applicants granted work permits on humanitarian grounds.
In response, the Migrant Worker Alliance (MWA) started a petition urging the government to end the 4 in 4 out rule and to provide temporary foreign workers a path to permanent residency. MWA also organized a “Cross-Canada Day of Action” to protest the 4 in 4 out rule on March 29th.
Temporary foreign workers may have other ways to remain in Canada depending on their particular situation. The Federal government has consented to give reprieve to TFW in Alberta as well, who will have the opportunity to apply for permanent residence until July 1, 2015 and will be granted bridging work permits. It would be interesting to see whether the government will be willing to extend this reprieve to more TFW.
Moreover, these changes will have a significant negative impact on businesses that rely significantly on temporary foreign workers, and in turn on the products and services these businesses supply. Many immigration lawyers in Canada agree that without willing Canadians or permanent residents to fill these positions, the 4 in 4 out rule may not be the best option for Canadian businesses or the Canadian economy.
Investing in Investors and Immigration to Canada
In an effort to boost the economy of Canada through immigration, the Canadian government announced details about the Immigrant Investor Venture Capital (IIVC) Pilot Program on December 16, 2014. Through this initiative, 60 millionaire immigrant investors and their families will be granted permanent residency in Canada. Citizenship and Immigration Canada (CIC) began accepting applications for this program on January 28, 2015.
Before any immigrant investor is successfully granted permanent residency, they must possess the skills and abilities to contribute to the Canadian economy as well as the ability to integrate into Canadian society. Outlined below are the requirements that the immigrant investor must satisfy to successfully come to Canada through immigration:
- Personal net worth of at least $10 million CAD
- Willing to make a non-guaranteed or at-risk investment of $2 million CAD over a span 15 years
- Meet the language requirements in English or French in speaking, reading, listening and writing
- A completed Canadian post-secondary degree, diploma or certificate of at least one year or a foreign equivalent
More details on eligibility for the IIVC Pilot Program can be found on the official website of Citizenship and Immigration Canada. Those that want more help during this process can seek the help skilled Canadian immigration lawyers.
Those that are successful in applying to the program will be entered into a pool of applicants. Initially, applications were open from January 28 to February 11, but because the quota of 500 applicants (maximum) was not met, CIC opened up applications again from February 13 to April 15. If a total of 500 applications have been received by April 15, a final group of 60 will be chosen at random and granted permanent residency in Canada. There is a possibility that more investor immigrants can be granted permanent residency if this new pilot program achieves its goals and is stimulating the economy in the way it was intended to.
The parliamentary secretary to the immigration minister, Costas Menegakis, says that the pilot program will create jobs since the funds will be invested towards Canadian start-ups that possess high growth potential.
A similar program was launched in 1986 that offered visas to business people with a net worth of at least $1.6 million and who were willing to lend $800,000 to the Canadian government for a term of five years. In 2012, the program was put on hold due to an enormous backlog of thousands of unprocessed applications. This caused a quite the stir since there were thousands of millionaire immigrants waiting for permanent residency status under this program. The Canadian government decided to wipe out the backlog and were subsequently sued by the would-be investor immigrants and their Canadian immigration lawyers. The program was cancelled because the government found it to be riddled with fraud.
With the new pilot program in effect, only time will tell whether it will repeat the failure of the aforementioned program or if it will indeed help Canada and its citizens give a much needed boost to the economy.
Ottawa Immigration Lawyers Weigh In: Did Express Entry Change the Canadian Experience Class Category?
With the new Express Entry system in place, Ottawa immigration lawyers can now compare and contrast this new system with the previous Canadian Experience Class.
Prior to the release of the Express Entry system, Citizenship and Immigration Canada provided multiple assurances that Express Entry would in no way change the Canadian Experience Class. The announcements reiterated that the Express Entry will be simply a faster electronic way to process these applications, and will not change the program requirements:
“Express Entry is not a new immigration program; it is a new way for Citizenship and Immigration Canada (CIC) to manage economic immigration applications online.” (Source)
“Will Express Entry change immigration program requirements?
No. Express Entry will not change immigration program requirements. Express Entry is not a new program. It is a new way for Citizenship and Immigration Canada to manage the intake of economic immigration applications online.” (Source)
The chart below sets out in some detail the requirements pertaining to the two systems, illustrating the significant differences between the two systems.
Canadian Experience Class vs. Express Entry Canadian Experience Class: A Comparison Chart
| Canadian Experience Class | Express Entry | |
| Objective | To provide individuals with Canadian experience an opportunity to remain in Canada permanently | To provide a fast processing for CEC applicants, based on a 1,200 points system |
| Points | No point system | 1,200 points:
|
| Minimum points | Not applicable | CIC has had 4 draws, with the lowest invitation being issued to an individual with 735 points (meaning they were either nominated by a province or had an LMIA approved job offer)
|
| Minimum requirements |
|
|
| Skilled work | The Applicant must have experience in skilled categories NOC 0, A or B | The Applicant must have experience in skilled categories NOC 0, A or B |
| Canadian education | Not required | Helps earn additional points |
| Age | Not relevant | Candidates earn points based on their age |
| Job offer | Not required | An LMIA approved job offer or a provincial nomination is required to reach at least half of the necessary points |
| Cost | Regular application fees apply | Regular application fees +cost of LMIA for employer (about $2000) or cost of PNP application (Usually between $1,500 and $2,000) |
| Who pays the cost | Applicant is responsible for paying his fees | Applicant is responsible for paying his fees and either employer is responsible for paying LMIA costs, or applicant is responsible for paying his or hers PNP fees |
| Processing times | 12 months | 6 months or less |
| Will CIC contact me? | CIC would contact both positive and negative applicants | CIC will only contact positive applicants and will remove the applications that were not selected from its data base after 12 months |
| Predictability of outcome | High, if the applicant met all the requirements of the program, and was not ineligible in any other way, most of the time he would be offered permanent residence. | Low, there is no guarantee which applicants will be selected or when they would be selected. |
If you require assistance in applying for this new permanent residency category, be sure to contact your Ottawa immigration lawyers.
New Rules Make Immigration to Canada Hard for International Students
On January 1, 2015, new federal rules came into effect that have made immigration to Canada substantially more difficult for international students recently having graduated from Canadian institutions. Permanent resident lawyers agree that the Express Entry Permanent Residency system no longer gives these students an advantage when applying to stay in Canada permanently.
Before these rules came into effect, international students, alongside their permanent resident lawyers, could follow a path to permanent residence that did not require their employer to obtain a Labour Market Impact Assessment (LMIA). Once graduated from a Canadian college or university, these international students could acquire an open work permit, allowing them to gain experience in the Canadian labour market before applying for permanent residency. After at least one year of Canadian work experience they became eligible to apply for permanent residence through the Canadian Experience Class with the help of a permanent resident lawyer.
Previous to the launch of Express Entry, eligible candidates could apply directly to the program, often with assistance from a permanent resident lawyer; now, students are placed in a pool with other skilled workers, and, using a points based system, Citizenship and Immigration Canada draws only certain individuals from this pool to apply for permanent residence.
Though it would seem that immigrants to Canada having obtained an education at a Canadian institution would be a perfect fit for the Canadian workforce, the difficulty lies in these candidates’ ability to obtain a positive LMIA. A large number of points (600 out of 12,000) are allocated to individuals with a job offer from a Canadian employer, or a nomination from a Canadian province, but in order for the job offer to qualify, the employer has to obtain a positive LMIA. How can an international student, having just completed his or her program of study, prove that there is no other Canadian worker available to do the job in question, with so little work experience?
Another problem lies in the fact that in addition to competing against other graduates from Canadian Universities, these students are also competing against other potential immigrants to Canada with years more experience. With that in mind, it’s safe to assume that the kinds of applicants most likely to be chosen for employment from within this pool of applicants are not recent college graduates with little to no Canadian work experience. It’s far more likely that a candidate with several years’ work experience in a jurisdiction similar to Canada’s will be selected for employment.
These new regulations are not only changing the criteria for immigrants in Canada, but ultimately changing the narrative of the country. Previously, many international students chose to enroll in Canadian postsecondary institutions because of the ease of transition to permanent residency after graduation. Going forward, we may see these same applicants choosing to go to countries like Australia, the U.K. or the United States.
We have successfully assisted individuals with their work permits, provincial nominations, and numerous permanent residency categories. If you require assistance in applying for this new permanent residency category, be sure to contact your Ottawa immigration lawyers.
Federal Court of Appeal concludes CIC discriminates against Parental Sponsorship Applications
On February 6, 2015, the Federal Court of Appeal concluded that CIC was in fact engaging in discriminatory practices in reviewing the applications of sponsors for parental sponsorship. The first step of the sponsorship process for parents, spouses or children begins with the evaluation of the sponsor: whether they have sufficient funds and the ability to support their sponsored relatives in Canada. While processing this step for spouses and children only takes about 90 days on average, the exact same process for sponsoring parents takes about 45 months (processing times as of February 2015).
Amir Attaran, professor and Canada Research Chair in Law, Population Health, and Global Development Policy at the University of Ottawa, a naturalized Canadian from the US applied to sponsor his parents to come live in Canada in 2009. He quickly realized that the difference in processing times does not make sense.
In 2010, after multiple attempts to contact Citizenship and Immigration Canada (‘CIC’) to have someone explain the difference in treatment of sponsorship applications, he applied to the Canadian Human Rights Commission (‘CHRC’) to have this discriminatory treatment investigated. The CHRC mandated an investigation into this, where the investigator recommended that there was a bona fide reason for the discrimination, namely discretionary decisions mandated to the CIC based on economic needs. The CHRC agreed with the recommendation and dismissed the complaint.
Professor Attaran then applied to the Federal Court for a judicial review of the decision, where the leave for his application was refused. He then appealed the decision to the Federal Court of Appeal.
At the Federal Court of Appeal level, the court found that the decision of the CHRC was unreasonable, as family status is a prohibited ground for discrimination and there was no bona fide reason for this discriminatory practice. A bona fide justification, according to s. 15(1)(g) of the Canadian Human Rights Act could only save the discriminatory practice if it imposes undue hardship on the person or body required to comply with the CHRA (s. 15(2) CHRA).
Justice Webb, who write the decision for the majority of the Federal Court of Appeal, noted that there was no reference to undue hardship in the CHRC decision. Ministerial discretion to allocate funds is not a listed bona fide reason for discrimination and as such cannot qualify as a justification.
The Federal Court of appeal send the decision back for redetermination to the CHRC.
The Federal government has not yet indicated how they will argue this case at the CHRC level. However, it is expected that they will oppose this change.
This case serves as an important reminder that prior to enacting immigration laws and policies, all possible implications should be thoroughly examined, including the potential negative impact on specified groups.