Canada’s immigration programs are in the process of undergoing some of the most significant changes that have been made in recent memory. Some of these changes are already in effect, while the biggest changes begin January 1, 2015. This bulletin outlines several changes to some of the most popular programs.

Temporary Foreign Worker Program: Employer Violations

In general the Canadian government has become more strict in dealing with violations by employers under the Temporary Foreign Worker Program (“TFWP”).

On April 24, 2014, Employment and Social Development Canada (“ESDC”) Minister Jason Kenney banned Canadian restaurants from having access to the Canadian Foreign Worker Program. This moratorium means Canadian restaurants cannot hire any new foreign (non-Canadian) workers by applying for and obtaining a new work permit or a labour market opinion.

There are now six employers who have had their names appear on the ESDC “Blacklist’ of Employers who have broken the rules or been suspended from the Temporary Foreign Worker Program. The employers are from British Columbia, Ontario, Nova Scotia and Newfoundland. The most well-known employer is McDonald’s Restaurants with three locations in Victoria mentioned. Canadian employers should check to ensure they are in compliance with the policies of the TFWP.

Expanded Guidelines for Intra-company Transferee Work Permit with Specialized Knowledge

On June 9, 2014, under Operational Bulletin 575, the Government of Canada provided expanded guidelines for assessing work permit applications under the Intra-company Transferee (“ICT”) Specialized Knowledge category.

The assessment criteria will now include a more rigorous definition of “specialized knowledge” as well as a mandatory wage requirement for some ICTs. These new guidelines are effective immediately.

1. Definition of Specialized Knowledge

An ICT Specialized Knowledge worker must possess “knowledge at an advanced level of expertise” and “proprietary knowledge of the company’s product, service, research, equipment, techniques or management”.

An ICT Specialized Knowledge applicant would need to demonstrate on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise. Proprietary knowledge alone, or advanced expertise alone, does not qualify the applicant under this exemption. The onus is on the applicant to provide evidence that they meet this standard. Documentary evidence may include, but is not limited to, the following: a resume; reference letters; letter of support from the company; job descriptions that outlines the level of training acquired, years of experience in the field, degrees or certifications obtained in the field, list of publications and awards (where applicable), and a detailed description of the work to be performed in Canada.

Proprietary knowledge is company-specific expertise related to a company’s product or services. Advanced proprietary knowledge would require an applicant to demonstrate:

  • uncommon knowledge of the host firm’s products or services and its application is international markets; or
  • an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research equipment, techniques or management

An advanced level of expertise would require specialized knowledge gained through significant and recent experience with the organization and used by the individual to contribute significantly to the employer’s productivity.

Citizenship and Immigration Canada (“CIC”) considers specialized knowledge to be knowledge that is unique and uncommon; it will by definition be held only by a small number or small percentage of employees of a given firm. Specialized Knowledge workers must therefore demonstrate that they are key personnel, not simply highly skilled.

2. Mandatory Wage Floor

If a worker possesses the high standard of specialized knowledge that is uncommon in a particular industry, then the salary or wage should be consistent with such a specialist. The wage should be higher than the wage floor set by the prevailing median wage.

It should be noted non-cash per diems (e.g. hotel, transportation paid for by the employer) are not to be included in the calculation of the overall salary or wage. Only allowances compensated in monetary form and paid directly to the employee are to be included.

Any employer considering using the ICT Specialized Knowledge category to apply for a work permit should check to ensure the new applicant will qualify under the new expanded guidelines concerning this category.

We also expect more changes to be announced in the near future concerning the TFWP.

Significant Changes for Canadian Permanent Resident Application Procedures Start January 1, 2015

The Canadian Permanent Resident (“PR”) application procedures for the skilled worker categories will be changing dramatically next year. Under the current procedures an applicant files a Canadian PR application under one of the existing categories. The main existing Federal categories are: Federal Skilled Worker (“FSW”); Canadian Experience Class (“CEC”); and Federal Skilled Trades (“FST”). The main existing provincial category is the Provincial/Territorial Nominee Program (“PNP”). The applicant then waits for CIC to process the application. The general processing times are approximately: FSW 22-24 months; CEC 12-13 months; FST no processing times are available as the program is new; and PNP 18-22 months.

On January 1, 2015 there will be a new immigration system for applicants applying for Canadian PR status as a skilled worker. The new immigration system will be called the “Express Entry” system. Under the Express Entry system a candidate who is interested in coming to Canada will submit an Express Entry form online. Candidates who meet the eligibility criteria for at least one of the Federal programs (FSW, CEC or FST) or a portion of the PNP (skilled worker portion) will be entered into the Express Entry pool and assigned a points score.

The highest ranked candidates will be invited to apply for permanent residence and receive an Invitation to Apply (“ITA”). The goal of the new Express Entry program is for a six months processing time for an applicant who receives an ITA. An Express Entry submission is not a guarantee of receiving an ITA.

The new Express Entry system has been compared to a dating site for immigration applicants. Under the Express Entry system CIC will be reviewing a number of factors that will make the applicant more “attractive” such as the applicant having received: preliminary approval under FSW, CEC, FST or PNP; a Work Permit; or a Labour Market Opinion (“LMO”). There will continually be new applicants entering the site. If an applicant wishes to remain “attractive” and be selected by CIC for an ITA, it will be useful to continue to update the Express Entry profile.

It is important applicants apply now for Canadian PR status under one of the existing categories such as FSW, CEC, FST or PNP in order to be ready for the new Express Entry system when it opens. By applying now there is a better chance of having the application processed to the stage where a preliminary approval has been issued by January 1, 2015. Similarly, if an applicant needs a work permit or LMO renewed, the applicant should consider applying early to ensure an extension has been received by January 1, 2015. This increases the likelihood of having one of the factors that CIC has indicated will make an Express Entry profile “attractive”.

More Applications Accepted for Two Categories under Canadian Permanent Resident Program

On May 1, 2014, the following changes to the Federal FSW Canadian PR program became effective:

  • An overall cap of 25,000 applications in the eligible occupations stream; and
  • Sub-caps of 1,000 applications for each of the 50 eligible occupations (increased from 29 occupations before)

On May 1, 2014, the following changes to the Federal CEC Canadian PR program became effective:

  • A global cap of 8,000 new complete applications per year;
  • Sub caps of 200 complete applications for all NOC B occupations except for the following six occupations that will be ineligible (admin. officers; admin. assistants; accounting technicians; retail trade supervisors; food service supervisors; and cooks); and
  • No sub caps for NOC O and A occupations. These are subject only to the global cap

Applicants will benefit from the increase in overall cap and eligible occupations for the FSW Canadian PR program, as well as the increase in the overall cap for the CEC Canadian PR program as this will allow more people to be eligible to apply. This means more people will be eligible to have received preliminary approval under the FSW or CEC prior to the January 1, 2015 commencement of the new Express Entry system.

In general, the new Express Entry system will not be as predictable as the previous system. There is far more uncertainty concerning whether applicants will qualify for Canadian PR status.

We can expect more announcements from CIC in the coming months prior to the January 1, 2015 implementation date of the Express Entry system concerning policy and procedures.