ESDC Refuses LMIA where no English Speaking Canadians Applied

A few weeks ago we received through an Access to Information Act request several copies of internal policy guidance.  I’ve reproduced what I found to be the most surprising one below.

The fact that employers are needing to recruit foreign workers because the permanent residents and/or Canadian citizens who are applying don’t speak either English or French is rather troubling, to say the least.


The BC PNP Has Re-Opened with all New Programs

On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP”) re-launched with new program requirements and processes.  The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream.

The most significant changes to the BC PNP include:

  • Introducing an online application process with an electronic payment system;
  • Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program;
  • Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap);  and
  • Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test.

Skills Immigration and Express Entry BC

The Skills Immigration is divided into the following substreams:

  • Skilled Worker
  • Health Care Professionals
  • International Graduates
  • International Post-Graduates
  • Entry Level and Semi-Skilled
  • North East Pilot Project

As well, the Express Entry BC stream is divided into the following substreams:

  • Skilled Worker
  • Health Care Professional
  • International Graduate
  • International Post-Graduate

Most of the requirements to the Skills Immigration streams and sub-streams remain largely unchanged. However, in addition to requiring that applicants apply online, the following are new program requirements:

  • In the Skilled Worker substream the BC PNP has clarified that “several years of directly related work experience” means two or more years;
  • The “Market Rate” for a position is based on an applicant’s employment and educational experience.  It is unclear whether this mean that the Low Rate on the Working in Canada website remains the threshold; and
  • Applicants with job offers in NOC B occupations must demonstrate English language proficiency at Canadian Language Benchmark (“CLB”) level 4.

The BC PNP will only be accepting 200 new Skills immigrant applications in 2015.  This limit does not apply to Express Entry BC, the Health Care Professional stream, or the Northeast Pilot Project.   New applications from individuals residing in Metro Vancouver are restricted to employment offers above the British Columbia median wage of $22.00 per hour.

Entrepreneur Immigration Stream

While the Skills Immigration Stream remains largely unchanged, the Entrepreneur Immigration Stream has been completely overhauled.

The Entrepreneur Immigration Stream is an expression of interest program similar to CIC’s Express Entry.  Applicants must register with the Entrepreneur Immigration Registration (“EIR”), and registrations will be ranked using a points system.  The highest scoring individuals in the EIR will be invited to apply to the Entrepreneur Immigration stream.  The BC PNP anticipates processing Entrepreneur Immigration Stream applications within 3 months.   Successful individuals will be required to enter into a Performance Agreement with the BC PNP stipulating time-frames for the completion of their business commitments.  Once the entrepreneur satisfies the terms of the Performance Agreement, the BC PNP will issue the individual a nomination certificate which can be used to apply for permanent residency.

It is important to note that the BC PNP will only accept a maximum of 200 registrations per month.

To submit an EIR, a prospective individual must meet the following requirements:

  • Be lawfully admitted in the country that they reside;
  • Not be inadmissible to Canada or have an unresolved refugee claim in Canada;
  • Have a personal net worth of $600,000.00;
  • Have either:
    • a minimum of more than three years experience as an active business owner-manager;
    • more than four years of experience as a senior manager; or
    • a combination of at least one year of experience as an active business owner-manager and at least two years of experience as a senior manager;
  • Have a minimum of two-years of post-secondary education or experience as an active business owner-manager with 100% ownership of the business for at least three of the past five years;

When registering for the BC PNP Entrepreneur Immigrant stream applicants will also need to submit short business concepts that will have to demonstrate that their proposed business meets several requirements, including:

  • that the business be an eligible business established either through starting a new business, purchasing an existing business, partnering with an existing business, or partnering with a local or foreign entrepreneur to establish a new business;
  • that the individual make an eligible personal investment of at least $200,000 in the proposed business (or $400,000 if a Key Staff member is proposed); and
  • that the business will create at least one permanent new full-time equivalent job for a Canadian citizen or permanent resident in the proposed business.

The BC PNP has introduced very stringent and complicated requirements regarding what constitutes an eligible personal investment that are extremely circumstance specific and beyond the scope of this update.

Scoring in the Entrepreneur Immigration pool is as follows:

Scoring Sections Points
    1. Experience 24
    2. Net Worth 12
    3. Personal Investment 30
    4. Jobs 36
    5. Adaptability 18
    6. Business Concept 80
Total Points Available 200

Experience points are calculated as follows:

Experience Total Duration Points
Business Owner-Manager Experience Less than 12 months 0
12 to 24 months 4
25 to 36 months 6
37 to 48 months 12
49 to 60 months 15
61 months or more 20
Senior Manager Work Experience Less than 24 months 0
24 to 48 months 4
49 to 60 months 8
61 months or more 12
The maximum score available for this section is 24.
The minimum points requirement is 8.
Individuals cannot get points for both Business Owner-Manager Experience and Senior Manager Work Experience, but rather have to choose.

Net worth points are scored as follows:

Personal Net Worth Points
Total Current Assets (cash and liquid funds) Less than $50,000 0
$50,000 to $199,999 1
$200,000 to $399,999 3
More than $400,000 6
Total Personal Net Worth Less than $600,000 0
$600,000 to $799,999 1
$800,000 to $1,999,999 3
$200,000,000 to $4,999,999 5
$5,000,000 or more 6
The maximum score available for this section is 12
The minimum points requirement for personal net worth is 1.

Eligible personal investment will be scored as follows:

Eligible Personal Investment Points
Less than $200,000 0
$200,000 to $399,999 6
$400,000 to $999,999 20
$1,000,000 or more 30
Applicants must score at least 6 points, or 20 points if they are proposing key staff, to meet the minimum requirement for this section.
The BC PNP will not consider as eligible any investment made prior to the date that an individual is invited to apply for nomination.

Jobs will be scored as follows:

Number of Full-time Equivalent  Job Positions Created and Maintained Points
Less than 1 0
1 2
2 6
3-4 12
5-6 20
7-8 28
9-10 32
11 or more 36
The maximum score available for this section is 36.
The applicant must score at least 2 points, or 12 if there is key staff.
The jobs created and maintained must pay wages that are consistent with the skill level of the position created

Adaptability will be scored as follows:

Factor Points
English language proficiency None or minimal, similar to CLB 3 and below 0
Basic understanding, similar to CLB  4 2
Intermediate and advanced, similar to CLB 5 and above 4
Education level Less than two years of post-secondary education 0
Two years or more of post-secondary education 3
Age Less than 20 0
21-39 3
40-60 4
61-64 2
65 or older 0
Business Exploratory Visits to British Columbia No 0
Yes, 1 or more years ago 1
Yes, less than 1 year ago 2
Canadian work experience, business experience, or studies from within Canada for at least 12 months No 0
Yes 5

The scoring for Business Concepts remains unclear.  12 points out of a possible 80 are based on the location of the proposed business as follows:

Population of BC Regional District Points
More than 500,000 people 0
200,000 to 500,000 1 point
100,00 to 200,000 3 points
70,000 to 100,000 6 points
60,000 to 70,000 8 points
35,000 to 60,000 10 points
Less than 35,000 people 12 points

The remaining 68 points are based on a variety of factors whose exact point allocation has not been released, and will be based on a 1,000 – 1,500 word business concept that EIR registrants must submit.  The points will be based on commercial viability, transferability of skills, and economic benefits.  Applicants must score a minimum of 32 points, based on what at this point appears to be an unpublished checklist.

As noted above, the highest ranking applicants in the EIR will be invited to apply for nomination. Those applicants that are invited to apply will need to engage a qualified supplier to review their personal net worth and accumulation funds as part of the nomination process.  Once the nomination is approved, the applicant and the BC PNP will enter into a Performance Agreement, and the entrepreneur can start their business.  The BC PNP will support the entrepreneur in a work permit application to facilitate this.

Once the entrepreneur completes the terms of the Performance Agreement, he/she can submit a Final Report to the BC PNP to be issued a nomination certificate.  The entrepreneur must demonstrate to the BC PNP that they:

  • are actively managing a business (i.e., be accountable for the day-to-day operations of the business) in British Columbia;
  • reside within 100 kilometers of the business;
  • have been physically present in British Columbia for at least 75% of the time that the individual was on a work permit; and
  • have complied with any other terms of their Performance Agreement.

The nomination certificate can then be used to support a permanent residency application.

More information about the Skills Immigration and Express Entry BC programs can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Skills-Immigration/Skilled-Workers.aspx

More information about the Entrepreneur Immigration Stream can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Entrepreneur-Immigration/Program-Requirements.aspx

Please contact us if you have any questions or concerns about his upcoming change.


Service Canada Transition Plans

On June 23, 2014, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”).  One of the changes was:

Introduction of Transition Plans for High-Wage Positions

Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada.  An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately.

Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which:

  • require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer);
  • have a limited duration of between:
    • 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or
    • more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based business consultant, specialized construction engineer).

As part of the Transition Plan, employers are required to conduct the all of the following:

  • General Requirements – Employers must conduct at least 3 distinct activities that are designed to recruit, retain, and train Canadian citizens and permanent residents;
  • Underrepresented Groups requirement – Employers must conduct at least 1 distinct activity to work with an organization serving underrepresented groups (Aboriginal peoples, youth, immigrants and persons with disabilities) to identify potential candidates for recruitment or training. This activity is additional to that conducted for the minimum recruitment and advertisement requirement. If the underrepresented group is the same, the activities must be different. If the activities are for the same group, they must be substantially different.
  • Permanent Resident Requirement – Employers must conduct at least 1 distinct activity that supports a TFW’s permanent transition to Canada. This activity could include assisting with language training.

Employers will be required to report on the results of the commitments they have made in their Transition Plan if they are selected for an inspection, or choose to re-apply for a subsequent LMIA for the same occupation and work location.

In today’s post, I wish to elaborate on the above.

Continue reading “Service Canada Transition Plans”


Labour Market Impact Assessments- Prevailing Wage

In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area.  The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada.  It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.

Continue reading “Labour Market Impact Assessments- Prevailing Wage”


Intra-Company Transfers – Specialized Knowledge

On June 9, 2014, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“).  OB-575 introduced more stringent requirements to the Intra-Company Transferee (“ICT“) – Specialized Knowledge program.  Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage.

Specialized Knowledge

Previously, CIC’s Temporary Foreign Worker Manual (“FW1“) specified that ICT – Specialized Knowledge applicants must demonstrate “specialized knowledge” of a company’s product or service and its application in international markets, or an an advanced level of knowledge or expertise in the organization’s processes and procedures.

Effective immediately, OB-575 requires that ICT – Specialized Knowledge applicants demonstrate a high degree of both proprietary knowledge and advanced expertise.  Specialized knowledge is unique and uncommon, and OB-575 states that “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.”  The onus is on applicants to provide evidence that they meet these requirements.

Proprietary knowledge is company-specific expertise related to a company’s product or service.  OB-576 specifically notes that it implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although OB-575 does not mandate that “advanced proprietary knowledge” is required, it states that:

Advanced proprietary knowledge would require an applicant to demonstrate:

  • uncommon knowledge of the host firm’s products or services and its application in 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 requires specialized knowledge gained through significant and recent (defined as within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.  OB-575 notes that:

In assessing such expertise or knowledge, officers consider:

  • abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term;
  • the knowledge or expertise must be highly unusual both within the industry and within the host firm;
  • it must be of a nature such that the applicant’s proprietary knowledge is critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant’s expertise;
  • the applicant’s proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market. Example: Skill in implementing an off-the-shelf product would not, by itself, meet the standard of specialized knowledge; unless, for example, the product is new or being highly customized to the point of being a “new” product. In other words, an ICT applicant is more likely to have truly specialized knowledge if they directly contribute to the (re)development of a product, rather than to the implementation of a pre-existing product.

In what is clearly a response to the RBC/iGate fiasco, OB-575 also mandates that officers consider:

  • ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
  • given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
  • as the specialized knowledge will not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, a specialized knowledge worker must not receive specialized training by other employees such that this would lead to the displacement of Canadian workers.

Mandatory Wage Floor

Effective immediately, ICT – Specialized Knowledge applicants must be paid the Prevailing Wage for their position.  Non-cash per diems, including hotel and transportation, are not to be included in the calculation of the overall salary.

This is perhaps not surprising.  There has been a huge disparity in the wages being provided to Intra-Company Transferees, especially in companies transferring Indian, mainland Chinese, or Filipino workers.  In 2013 Citizenship and Immigration Canada produced a chart for internal use documenting this, as reproduced below.

A201412451_2015-04-28_07-56-04_Page_06

Free Trade Agreements

It is important to note that the above changes do not impact ICT – Specialized Knowledge applicants under Free Trade Agreements, including the North American Free Trade Agreement.  This is because such agreements, which are negotiated between Canada and other countries, specify what the requirements for ICT – Specialized Knowledge applicants are. However, in interpreting those agreements, wage remains an important indicator of specialized knowledge and should be taken into account as an important factor in an officer’s overall assessment.


“Country of Origin” in the Refugee Context

Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that:

Convention refugee

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

There has recently been disagreement within the Federal Court over what the term “countries of nationality” encompasses, and on May 11, 2015, Justice Mosely certified the following question:

Do the expressions “countries of nationality” and “country of nationality” in Section 96 of the Immigration and Refugee Protection Act include a country where the claimant is a citizen but where he may face impediments in exercising the rights and privileges which attach to citizenship, such as the right to obtain a passport?

The Federal Court of Appeal has previously addressed the issue of the definition of “countries of nationality” in the IRPA s. 96 context when in Williams v. Canada (“Williams”) it answered the following certified question in the affirmative:

Does the expression “countries of nationality” of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?

In Williams the Federal Court of Appeal ruled that whether the citizenship of another country was obtained at birth, by naturalization or by State succession is of no consequence provided it is within the control of an applicant to obtain it, and that where citizenship in another country is available, an applicant is expected to make attempts to acquire it and will be denied refugee status if it is shown that it is within his power to acquire that other citizenship.

The cases that have led to what can best be defined as uncertainty at the Federal Court over how to apply Williams involve Tibetans who are Indian citizens and who have claimed refugee status in Canada.  The evidence appears to suggest that such individuals, despite being born in India, often face difficulties in obtaining Indian citizenship (or having it recognized) unless the Tibetans can produce letters of no objection from the Central Tibetan Authority, and that even when this is obtained Indian courts have not been consistent on the matter.

In Wanchuk v. Canada (“Wanchuk“) Justice O’Reilly of the Federal Court held that the above circumstances meant that Tibetans in India do not have the degree of control necessary to acquire citizenship in India.  He stated:

In my view, this evidence shows a mere possibility that Mr. Wanchuk could obtain Indian citizenship. It would require, at a minimum, that the CTA exercise its discretion not to withhold its approval and that Indian authorities recognize Dolkar as binding precedent. In fact, Mr. Wanchuk might well have to litigate the issue. I note that Ms. Dolkar expended several years in administrative and legal battles in order to obtain Indian citizenship.

In these circumstances, I find the Board’s conclusion that obtaining Indian citizenship was within Mr. Wanchuk’s control was unreasonable.

In Dolker v. Canada, Justice Hughes addressed the issue in obiter, noting that:

Nonetheless, it is disturbing that, in a case such as the present, where the Applicant was born in India and peaceably living there, she took absolutely no steps to acquire full Indian citizenship. Certainly, if reasonable steps had been taken and pursued, a failure to secure such citizenship would have gone a long way toward bolstering a claim for refugee protection in Canada.

With all due respect to Justice Russell, there is nothing in Williams that says an Applicant need not even apply for citizenship. Williams, at paragraph 22, speaks to whether it is within the control of a person to acquire citizenship. Nothing in that case encourages an Applicant not to make reasonable efforts to secure such citizenship.

Wilful neglect or even neglect to apply for citizenship where a person has a right to apply should not serve as an invitation to try your luck in Canada. There would be good grounds for a certified question if the issue was not obiter. As this discussion is obiter, as I have found that the finding that the Applicant had Indian citizenship was reasonable, I will not certify a question.

Finally, in Tretsetsang v. CanadaJustice Mosley certified the question above, and added his opinion on the matter:

In Williams, at para 27, the Court of Appeal held that an applicant must make attempts to acquire citizenship in any safe country where it is available to him. The same would seem to apply to the enforcement of rights to which the applicant is entitled by law, as a citizen, notwithstanding efforts at obstruction by officials. By the applicant’s own admission at the RPD, he has never made any attempt to acquire or enforce rights of Indian citizenship. He merely speculates that he will not be able to succeed, despite the legislation and jurisprudence in his favour. In my view, he cannot claim protection in Canada without making any effort to avail himself of Indian nationality, to which he is entitled as a matter of law in that country.

This is where I must, with respect, decline to follow Wanchuk. At para 10 of that decision, Justice O’Reilly expressed the view that obtaining Indian citizenship was a “mere possibility” for a similarly situated applicant, since it might require litigation. That does not, in my view, amount to the level of the “intolerable burden” that Justice Russell found to apply in Hua Ma in light of the one child policy and other considerations in China. Nor is it consistent with the teachings of Williams. Applicants are expected to take reasonable steps to acquire or enforce any citizenship rights which are available to them. A right which is enshrined in legislation and has been enforced by the courts amounts to more than a “mere possibility”. There is nothing unreasonable about expecting the applicant to take legal action if his state of nationality attempts to deny his rights.

When the Federal Court of Appeal decides on the matter, I will post the answer here.



A37 – Inadmissibility for Organized Crime

Section 37of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for security reasons.  It states:

37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.

Application

(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

A Citizenship and Immigration Canada has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below.  More recent jurisprudence can be found throughout my blog, but the CIC document is a very useful summary.

A larger internal training manual is available here.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.