Over the course of the last year there have been a number of important developments in the business immigration area that are of interest to Canadian companies and to personnel who need to travel into the United States for business purposes. These changes affect the ability of companies to hire foreign nationals, to engage foreign service providers and to conduct business in the United States.

This article will provide an overview of the top Canadian and U.S. developments and trends in 2008, and will also briefly review what may lie ahead. Further details on these changes may be obtained from the immigration newsletters and special bulletins listed on our website.

CANADIAN DEVELOPMENTS

There have been significant Canadian developments relating to both the temporary foreign worker program and to the permanent resident program. On the permanent resident front, new programs and policies are aimed at providing government with more control over the occupational skill set of those who apply for permanent resident status, while making it easier for most foreign workers already in Canada to obtain permanent resident status.

  • Duration of NAFTA Work Permits Increased: Following the U.S. lead (see below) Canada announced in December that it was increasing the duration of NAFTA Professional work permits to up to three years. Before the change, such work permits could only be obtained for a period of up to one year. Renewals are also now available for up to three years. Such work permits are available to eligible American and Mexican citizens.
  • Post-Graduate Work Permits: The Post Graduate Work Permit program has been improved. Foreign nationals who graduate from eligible post-secondary institutions in Canada may apply for an open work permit within ninety days of receiving written confirmation of graduation. The duration of the work permit was increased to three years for foreign nationals graduating from a program of study that takes at least two years to complete. Employers can transition holders of these work permits to permanent resident status, which can be acquired prior to the end date of the work permit.
  • Improved LMO Processing: In order to hire a foreign worker in many situations, an employer must first obtain a Labour Market Opinion (LMO) from Service Canada. Over the course of 2008, the processing times for LMOs fell dramatically in Alberta and British Columbia. Processing timelines used to be measured in months, but are now measured in weeks. This means that employers seeking to hire foreign nationals in Alberta and British Columbia are now able to get work permits much more quickly than in the past.
  • New Canadian Experience Class: This new permanent resident category is for foreign nationals who have gained work experience in Canada. The CEC facilitates permanent residence status for foreign nationals who have a track record in Canada. Canadian employers should consider using the CEC to transition temporary foreign workers to permanent residents, thereby creating a long-term employee.
  • New Skilled Worker Program Rules: Canada announced a major overhaul of the federal Skilled Worker Permanent Resident Program. The current system has effectively been replaced by an occupations-based system. Ministerial Instructions were issued November 28. There is now a list of 38 occupations that applicants must show that they have at least one year of experience in to be able to apply for permanent resident status under the regular skilled worker class. The policy reason behind this change is to provide the Canadian government with greater control over the occupational background of would-be permanent residents. This change does not affect applicants who can apply under the CEC, or under other permanent resident programs such as Provincial Nominee Programs. Furthermore, the Ministerial Instructions allow those who have "arranged employment" or who have worked in Canada legally for at least one year to apply for permanent resident status under the skilled worker category, without having to be under one of the 38 listed occupations.
  • Expansion of PNPs: Provincial Nominee Programs (PNPs) continued to expand. For example, both B.C. and Alberta introduced streams to allow low-skilled workers in certain occupations to transition from temporary work permit status to permanent resident status. It is expected that PNP programs will continue to expand, giving provinces greater control over potential immigrants.  

U.S. DEVELOPMENTS

There were a number of U.S. developments of interest to Canadians and Canadian companies:

  • NAFTA TN Work Visas Extended to Three Years: In October 2008, the U.S. announced that it was increasing the duration of NAFTA TN work visas from one year to up to three years. TN work visas are available to Canadians who qualify under one of the 63 professions listed in the NAFTA.
  • Visa Waiver Program Expands: Canadians citizens are not affected by the Visa Waiver Program (VWP). However, Canadian permanent residents or temporary foreign workers in Canada who need to travel to the United States may be affected. The VWP allows citizens of some countries to enter the United States for up to 90 days for business visitor purposes without first requiring the person to obtain an entry visa from the U.S. Consulate. Citizens of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, the Republic of Korea and the Slovak Republic were added to the VWP.
  • New Electronic System for Travel Authorization Program: Citizens of countries covered by the VWP will, as of January 12, 2009, be required to register under a new program called the Electronic System for Travel Authorization Program (ESTA) before traveling to the U.S. Canadian citizens are not affected by the ESTA. Canadian employers should make sure that, if required, their employees apply under the ESTA in advance of any need to travel to the U.S.  

LOOKING AHEAD

Looking ahead, immigration rules and programs will continue to evolve in 2009.

A trend for the last several years has been stricter U.S. entry rules due to security concerns. This will continue. Starting June 1, 2009 the U.S. will require Americans and Canadians traveling by land into the U.S. to present a valid passport or other approved secure document to gain entry.

The current economic situation may also affect the cross-border movement of personnel and the hiring of foreign nationals.

Canadian employers seeking labour market opinions (LMOs) from Service Canada to hire foreign workers will likely face greater scrutiny of their recruitment efforts to find Canadian candidates, especially if unemployment increases. As of January 1, 2009 Service Canada introduced new national minimum recruiting requirements for all LMOs and announced that the Regional Occupations Under Pressure Lists initiative has ended.

The economic situation may also have an indirect affect on work permit adjudications which take place at ports of entry, such as NAFTA TN/Professional or intra-company work permit applications. The state of the economy is not supposed to be a factor when NAFTA Professional or intra-company work permit applications are assessed. However, it will be interesting to see whether a slowing economy may lead some immigration officers to apply and interpret work permit rules and categories more narrowly than in the past. This might be perceived as protecting domestic labour markets from having to compete with some foreign workers.

CONCLUSION

Expect continued changes and developments in the business immigration field. It will be more important than ever to carefully assess entry and work permit options, and to prepare strong supporting materials to support work permit applications or entry as a business visitor. Canadian based companies that employ foreign nationals may also want to take advantage of some of Canada's new programs to transition foreign workers to permanent resident status.