On August 18 2012, the government of Canada published the details of its long-anticipated changes to federal skilled worker immigration to Canada in the Canada Gazette.  While there have been several less significant changes made over the previous decade since the passage of the 2001 Immigration and Refugee Protection Act and related Regulations, this marks the first significant overhaul of the points system, and related federal categories of individual economic immigration to Canada.  In fact, at the present time, and until such time as the Gazette’s regulatory package is enacted, immigration under the Federal Skilled Worker (“FSW”) program has largely come to a halt, after the government announced a moratorium in June 2012.  Only a trickle of people have been able to apply through federal economic programs since the government placed this temporary stop on Investor, Entrepreneurs and FSW applications (with the exception of those applying under the Arranged Employment stream).   We note that there are still further substantial changes to be announced, notably with respect to the Entrepreneur and Investor classes likely in late 2012 or early 2013.

This alert summarizes the current proposed changes with respect to the FSW category as well as the Canadian Experience Class ("CEC"). It also describes a new program being introduced to the Canadian immigration landscape that will finally provide a realistic hope for certain tradespeople to obtain permanent residence in Canada.

Changes to the Federal Skilled Worker Program ("Point System")

The total points required to qualify under the program remains at 67. However, the government is proposing to update and change scoring in the Point System as follows:

  • Increase in the available points for language from 24 to 28. This will be accomplished by increasing the primary language’s maximum to 24 (from 16) while reducing the amount of points available for the secondary language to 4 (from a maximum of 8). The thresholds for minimum test scores will remain the same – at Canadian Language Benchmark ("CLB") 7 for higher level (NOC O and A) occupations, and CLB 5 for lower level (NOC B) occupations.
  • Increase in the maximum points available for age from 10 to 12. A greater score will be available to those between the ages of 18 and 35 - as opposed to the previous range of ages 21 through 44. Points will now diminish from ages 36 through 46, at which point no further points are available (although workers aged 47 or older are still eligible to apply).
  • Decrease in work experience points from a maximum of 21 to a proposed maximum of 15. Further, those 15 points will be harder to obtain because full points will only be achievable with six years of work experience, as opposed to 4 years under the current regime.
  • Educational credentials will now have to be recognized through a credential assessment and authentication process, on a case-by-case basis. Applicants whose credentials are found not to exist and or do not have a credential equivalent in Canada will not be eligible under the FSW program.
  • Adaptability remains at a 10 points maximum although spouse (or common law partner) education has been eliminated. On the other hand, official language capacity for spouses (to a lower benchmark than the principal applicant) has been added as a new way to obtain 5 adaptability points.  Adaptability points can also be obtained through Canada the spouse or partner's previous work or study in Canada.

Canadian Experience Class

Some more minor new regulatory changes involve: (i) the reduction in the requirements for relevant Canadian work experience from 24 to 12 months; and (ii) the elimination of the second stream for international students (- a system which had required graduation from a Canadian post-secondary program, as well as a minimum of 12 months of qualifying work experience).  The new stream allows for 12 months of eligible (NOC O, A or B) work experience which now qualifies all applicants under the CEC, whether they have studied in Canada or not.  All other eligibility requirements in this pass/fail category, which was added to Canada’s legislation in 2008, remain the same. More information on the CEC is available in our Canadian Business Immigration Manual.

New Federal Skilled Trades Class

The Federal Skilled Trades Class will become the newest category in Canadian immigration law (if enacted as proposed in the August 18 Gazette). The proposed new class applies to several NOC B occupational areas, namely: Industrial, Electrical and Construction Trades; Maintenance and Equipment Operation Trades; Supervisors and Technical Occupations in Natural Resources, Agriculture and Related Production; Processing, Manufacturing and Utilities Supervisors and Central Control Operators; as well as Chefs and Cooks, and Bakers and Butchers.

Under the proposed program, applicants would be required to meet four minimum requirements:

  1. A qualifying offer of employment from up to two employers in Canada of at least one year duration or a Certificate of Qualification from a provincial or territorial Apprenticeship Authority;
  2. Language proficiency, as evidenced by a test from a designated language testing organization that demonstrates the applicant’s abilities in the requisite skill areas meet the threshold set by the Minister in all four language abilities (speaking, reading, writing, oral comprehension). Individuals applying under NOC B occupations will need to achieve a minimum of a CLB 5 score for all language abilities similar to individuals applying under the CEC and Federal Skilled Worker Classes;
  3. Twenty-four months of work experience (after qualification/certification in the country where the work was performed, where applicable) in the same skilled trade in the last five years; and
  4. Qualifications that satisfy employment requirements as described by the NOC (except for certification and licensing requirements - which are difficult to obtain outside Canada).

It will be easiest to qualify under one of the eligible voluntary trades, i.e. trades which do not require certification apprenticeship, or other red seal registration in Canada.

Objectives

The government’s main objectives in making these changes are:

  1. To improve the economic outcomes of immigrants, by selecting candidates that will more rapidly integrate into the Canadian economy while increasing labour market responsiveness;
  2. To meet Canada’s skilled labour needs by reducing barriers of immigration to tradespeople; and
  3. To increase accessibility of permanent residence to those who are already integrated into the Canadian labour market.

Issues Being Addressed

Ultimately, it is hoped that these three programs will in great measure improve immigrant outcomes, and thereby address the three government objectives outlined above. The government cites numerous benefits as part of its rationale for the proposed amendments including the lack of avenues for skilled tradespeople to obtain access to Canadian permanent residency (- currently an approximate 7.5% of individuals under the CEC class, and only 2% of individuals under the Skilled Worker class). Another issue that the new program will address, according to the government, is a reduction in fraudulent Canadian job offers obtained through the Arranged Employment Opinion process. It is felt that the LMO program will increase integrity of job offers held by individuals applying under these programs, given the checks and balances, and the capacity to audit available through the LMO process.

Further, the renewed programs should lead to a more efficient adjudication of immigration applications. This is for reasons including a reduced uncertainty in eligibility criteria such as the required third party credential-assessment verification process.  More practically, the newly added barriers in place to limit the sheer number of applicants should also ease the flow of immigration application adjudication. .

Finally, the government has outlined some financial benefits to the changes. It estimates that there will be cost savings and benefits (including to third party credential evaluators) of approximately a $150 million over ten years. This is an average of approximately $13.8 million per year (adjusted for any negative impacts such as the amendment-associated costs which are estimated to be approximately $12.2 million over 10 years).

Other Avenues to Consider: Provincial Nominee Programs ("PNPs")

Given the moratorium that has been placed on FSW applications since June, many individuals intending to immigrate to Canada have had no choice but to apply under PNPs. Of course many of our corporate clients like the benefits of the PNPs for different reasons.

Whatever the motivation for applying under one of these programs that now process a significant portion of Canada’s economic immigrants, applicants should not delay. This is because all PNPs have annual nominee quota caps and given the increased demand emanating from the June 2012 FSW moratorium, and pending regulatory changes, we expect these PNP caps to reach their limits earlier than in past years.

Conclusion and Thoughts

The amendments proposed are part of an ambitious agenda that immigration minister Jason Kenny and the federal government are pursuing on the immigration front. While the outcomes are expected to be largely positive, there are always challenges in the proposed changes. As they to say, the devil will be in the details and recent developments have reinforced this view. For example, following the passing of the March 2012 Budget, the government made various changes with the promise of increased efficiency and reduced costs. This led to steps such as the closing of various visa offices both locally and internationally. While these goals - like those of the new regulations - are laudable, we certainly have seen delays and wrinkles in t immigrant applications processing since those changes took place in spring/summer 2012. Specifically, timelines have lengthened almost across the board and it is far more difficult to communicate with the government on immigration cases. More comments about this are available in recent article in which we commented on the phenomenal rate of change within Canadian immigration, which can be accessed at Canadian perspectives magazine.

We certainly hope that the proposed changes result in positive change to both the quality and outcomes of immigrants that come to Canada, as well as the businesses that depend on them for the future of Canada’s labour market. The jury is certainly still out as to what will result but we will keep you apprised of further announcements and changes, as they emerge this fall and winter.