Express Entry

On January 1 2015, Citizenship and Immigration Canada (“CIC“) is expected to overhaul its economic immigration programs with the launch of Express Entry.  On December 1, 2014, the Government of Canada released detailed Ministerial Instructions regarding Express Entry.  In this post I hope to provide an easy to read overview of the new program.

Express Entry will significantly alter every economic immigration program, including the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Federal Skilled Trades Program (“FSTP“), and the Provincial Nominee Program (“PNP“).

Rather than first in, first processed for permanent residence applications Express Entry will feature a “selection” of candidates who the Government of Canada believes is most likely to succeed in Canada.

Express Entry will consist of two steps for potential applicants:

  1. Completing an Online Express Entry Profile
  2. Receiving a Letter of Invitation

CIC is touting that Express Entry is not a new immigration per se, but rather a way for CIC to manage economic immigration applications online.  However, a quick review of Express Entry suggests that who will be eligible to immigrate to Canada under Express Entry will fundamentally change.

Continue reading “Express Entry”


Reliability of CIC Cap Figures

[Note – with the recent confusion over whether the CEC cap has been reached I thought it would be useful to bring this old blog-post to the forefront.]

Many immigration programs, including the newly enacted Federal Skilled Trades Program, contain caps on the number of people who can apply.  Citizenship and Immigration Canada (“CIC“) generally advises people that they should check the CIC website before submitting applications to make sure that the cap has not been exceeded.  Unfortunately, CIC has also (successfully) argued in court that the information on their website is not reliable, and that the CIC website stating that the cap is unfilled does not create a legitimate expectation for applicants that the cap is in fact unfilled.

In Agama v. Canada (Citizenship and Immigration), an applicant was denied a permanent resident visa under the Skilled Workers Class (the “FSWC“). Under the FSWC, CIC considered a maximum of 500 applications in National Occupation Classification 0631 (“NOC 0631“) during the relevant year.

CIC posted the following information on its website regarding how many NOC 0631 applications it had received:

  • September 28, 2011 – 209 applications
  • October 10, 2011 – 229 applications
  • November 3, 2011 – 330 applications
  • November 8, 2011 – 335 applications
  • December 1, 2011 – 458 applications

The applicant filed her application on November 14, 2011. Considering that the CIC website on December 1 reported that the cap stood at 458, she thought that she had made it.

Unfortunately, on January 13, 2012, CIC informed her that her application was rejected because the cap of 500 applications for NOC 0631 had been reached.  Indeed, CIC told her that the quota of 500 had been reached on September 19, 2011.  This of course directly contradicted what was on the CIC website.

I am not going to get into the specific judicial reasoning by which the Federal Court agreed with CIC’s arguments that the CIC website is a guide only, and that the applicant should have known this.  The point of this post is simply to warn applicants that they should not rely on the cap figures posted on the CIC website.  I would also recommend that practitioners specifically warn their clients of this possibility prior to applying, and to even include it as a clause in their retainer agreements.


Citizenship and Immigration Canada Abandons International Students

The following article appeared in the December 2014 edition of The Canadian Immigrant magazine.

Are options for international students to immigrate permanently narrowing?

Each year, around 100,000 international students arrive in Canada to commence their studies. From 2005 to 2013, Citizenship and Immigration Canada (CIC) introduced many programs to make it easier for these students to obtain work experience in Canada after graduating and to transition to permanent resident status.

My May 2013 column for Canadian Immigrantdetailed the ways in which post-graduate work permit (PGWP) holders could stay in Canada beyond the expiry of their PGWPs. In that article I wrote “some graduates regretfully lose their employment (and consequently jeopardize their permanent residence applications) if the employers are unable or unwilling to pay the required prevailing wage rates required for LMOs [labour market opinions], or if Service Canada refuses the applications because of insufficient recruitment on the employer’s part. There is no reason for this to be happening.”

Unfortunately for international students, that “there is no reason for this to be happening” is no longer the case, and the road for recent graduates to obtain permanent residency is becoming increasing difficult.

Continue reading “Citizenship and Immigration Canada Abandons International Students”


What Will Cause A Refused NEXUS Application

As I have previously written about in this blog, there are numerous benefits to being a member in the NEXUS program.  Membership in NEXUS enables people to save time through the use of automatic self-serve kiosks at airports, designated lanes at the land border, and expedited security procedures at airports.   Indeed, on November 13, the Canadian Air Transport Security Authority started a pilot project featuring a new, expedited screening line for NEXUS members at the security screening checkpoint for flights to the U.S. in Terminal 1 at Toronto Pearson International Airport.  NEXUS members who participate in this pilot are permitted to keep shoes, belts and light jackets on and leave laptops, large electronics, and compliant liquids, aerosols and gels in carry-on bags.

For many people, one of the frustrating things about the NEXUS program is that the Canada Border Services Agency (“CBSA“) website is very vague as to what may cause Canada to refuse someone’s NEXUS application.  It states:

NEXUSrefusalreasons

Canada’s Presentation of Persons (2003) Regulations, SOR/2003-323 (the “PoP Regulations“) are also not clear as to what may disqualify someone from being able to enrol in NEXUS.  The Regulations state:

6. The Minister may issue an authorization to a person to present themself in an alternative manner described in paragraph 11(a), (b), (c) or (e) if the person:

(a) is

(i) a permanent resident, within the meaning of the Immigration and Refugee Protection Act, or a Canadian citizen, or

(ii) a citizen or permanent resident of the United States;

(iii) [Repealed, SOR/2005-385, s. 6]

(b) is of good character;

(c) is not inadmissible to Canada under the Immigration and Refugee Protection Act or its regulations;

(d) provides their consent in writing to the use by the Minister of biometric data concerning the person for the purposes set out in section 6.3;

(e) has provided true, accurate and complete information in respect of their application for the authorization; and

(f) has resided only in one or more of the following countries during the three-year period preceding the day on which the application was received:

(i) Canada or the United States, or

(ii) if the person is a citizen of Canada or the United States and is serving at a Canadian or American diplomatic mission or consular post in a foreign country, that foreign country.

NEXUS program (air, land and marine)

6.1 The Minister may issue an authorization that is recognized in both Canada and the United States to a person, other than a commercial driver, to present themself in the alternative manners described in paragraph 11(a),subparagraph 11(d)(ii) and paragraph 11(e) if the person

(a) meets the requirements set out in paragraphs 6(a) to (f);

(b) has their eligibility to obtain an American authorization to present themself on arrival in the United States in the alternative manners described in paragraph 11(a), subparagraph 11(d)(ii) and paragraph 11(e) confirmed by the United States Department of Homeland Security; and

(c) provides a copy of their fingerprints and consents in writing to their use by the Minister for the purposes ofidentifying the person and performing background and criminal record checks on them.

(d) [Repealed, SOR/2006-154, s. 4]

When I applied for my NEXUS membership, I wanted to certainty as to whether I qualified, and what exactly “good character” meant.  The use of the word “may” on the CBSA website also puzzled me.  I contacted the CBSA to enquire on the matter.  Eventually, prior to me having to submit an Access to Information Act request, a very helpful CBSA officer provided me with a copy of the CBSA’s NEXUS Strict Standard Policy (the “NEXUS Policy“).  The officer asked that I not publish the NEXUS Policy on this blog, and, I complied.

It appears that I was not alone in my confusion.

According to a recent In Focus on the CBSA website, the Standing Joint Committee for the Scrutiny of Regulations has requested greater clarity regarding the “good character” provision found in the PoP Regulations.  The SJC has raised an issue with the term “good character” due to its ambiguity.  As a result, the CBSA has developed a comprehensive list of eligibility criteria to be included in the PoP Regulations, which it is seeking feedback on.  They largely mirror what currently already exists in the NEXUS Policy.

Criminality:

The new PoP Regulations will confirm that a NEXUS applicant cannot have a criminal conviction originating from within or outside of Canada.  Exemptions include where an applicant has been pardoned and if they have been granted criminal rehabilitation by Citizenship and Immigration Canada in the case of criminal convictions outside of Canada.

The CBSA website further states that:

The policy intent on exemptions to having no criminal record or having a pardon is:

  • A summary conviction or two summary convictions arising out of a single occurrence if five years have elapsed
  • An indictable conviction punishable by less than 10 years if 10 years have elapsed
  • An indictable conviction punishable by more than 10 years = lifetime ban
  • Repeated convictions (except if two summary convictions arising out of a single occurrence) = lifetime ban
  • Exception to the above: whether a summary or an indictable conviction, if related to border enforcement priorities = lifetime ban

Notes

  1. The period of time to elapse begins at the completion of the imposed sentence (e.g. time served, and/or end of probation, and/or payment of fine, etc.).
  2. As done when assessing admissibility to Canada, for the purposes of assessing eligibility to a TTP, foreign criminal conviction(s) will be equated with appropriate Canadian offences.

In cases of pending criminal charge(s), for which a conviction could result in ineligibility, or outstanding warrant(s), the Regulations would state that applications may be put on hold until a decision is made by a Court or until, in the case of outstanding warrant(s), they are no longer valid.

Compliance with program legislation:

The CBSA website states:

The CBSA administers and enforces more than 90 Acts, Regulations and international agreements on behalf of other government departments, also known as “program legislation” as identified in the Canada Border Services Agency Act. The new criteria would state that applicants must adhere to all provisions administered and/or enforced by the CBSA in the program legislation; however, depending on the nature/seriousness of an infraction, the enforcement action that resulted, or the length of time that has elapsed, the applicant may still be eligible to join a TTP.

For example, a seizure for lack of compliance with the Customs Act will require a period of six years to have elapsed before an applicant can be eligible for membership in any TTP.

Furthermore, if there are reasonable grounds to suspect that an applicant may be suborned to commit an act or to assist or abet a person to commit an act contrary to the provisions of program legislation administered and/or enforced by the CBSA, the Regulations would specify that the applicant may be ineligible for membership in a TTP.

That the Regulations (and hopefully the CBSA’s NEXUS website) will finally confirm that a Customs Act seizure violation will not affect NEXUS eligibility after six years is a welcome development, and will remove much uncertainty regarding program eligibility.

National security:

Not surprisingly, if there are reasonable grounds to suspect that an applicant made be involved with or associated with one or more of the following activities, the applicant will be ineligible for NEXUS membership:

  • Terrorism; or
  • Espionage and/or subversion; or
  • War crimes and crimes against humanity; or
  • Criminal organizations – organized or not; or
  • Transnational crime such as smuggling and/or trafficking of persons and/or goods; or
  • Money laundering and/or terrorism financing.

Travel document:

Finally, the CBSA website states:

In certain legal proceedings, a Court may order the surrender of an individual’s passport so that they cannot travel outside of the country. As NEXUS and FAST membership cards can sometimes be used as travel documents in lieu of a passport, to avoid conflict with such an order, if an applicant has a Court order to surrender his/her travel documents, he/she may be deemed ineligible for membership in the NEXUS or FAST programs.

A Note on the Americans

In reviewing the above, it is important to note that both Canada and the United States must approve NEXUS applications.  There are slight variations in how each country determines admissibility (especially regarding criminality) that applicants should be aware of.

[UPDATE – DECEMBER 2, 2014]

The CBSA is once again seeking to update the regulations on largely the same terms as above.

http://www.cbsa-asfc.gc.ca/agency-agence/consult/reg/menu-eng.html#tabs1_2


Introducing a Residency Requirement for Social Transfers

The Federal-Provincial Fiscal Arrangements Act (the “FPFAA“) establishes the Canada Social Transfer, a federal block transfer to provinces and territories to support post-secondary education, social assistance, social services, early childhood development, and early learning.   In 2014-15 the total Canada Social Transfer transferred to all provinces and territories will be almost $12.6 billion.

The FPFAA stipulates that one of the objectives of the Canada Social Transfer is to maintain a national standard in which no period of minimum residency is required or allowed for an individual to receive social assistance, and the current version of s. 25.1 of the FPFAA achieves this by stipulating that:

Criteria for eligibility — Canada Social Transfer

25.1 In order that a province may qualify for a full cash contribution under [the Canada Social Transfer] for a fiscal year, the laws of the province must not

(a) require or allow a period of residence in the province or Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt of social assistance; or

(b) make or allow the amount, form or manner of social assistance to be contingent on a period of such residence.

In other words, provinces and territories cannot currently impose a minimum period of residence on the receipt of social assistance without a reduction in their Canada Social Transfer payments.

One of the measures in the Conservative Government of Canada’s second Omnibus Bill titled “A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and other measures” (the “Budget Implementation Act“) would modify this national standard to clarify that provinces only cannot impose residency requirements on the following people:

  1. Canadian citizens;
  2. Permanent residents;
  3. Persons who have been determined to be victims of human trafficking and who hold Temporary Resident Permits; and
  4. Convention refugees and people who are persons in need of protection.

The consequence of the Budget Implementation Act is accordingly that some provinces may introduce residency requirements for foreign nationals, including refugee claimants, before they can receive social assistance.

Continue reading “Introducing a Residency Requirement for Social Transfers”


The Caring for Children Class, and the Caring for People with High Medical Needs Class

On November 28, 2014, the Government of Canada issued Ministerial Instructions completely overhauling Canada’s caregiver immigration programs.

The changes consist of:

  • Suspending the in-take of applications under the existing Live-in Caregiver Program;
  • Establishing the Caring for Children Class; and
  • Establishing the Caring for People with High Medical Needs Class.

The above changes all take effect on November 30, 2014.

Continue reading “The Caring for Children Class, and the Caring for People with High Medical Needs Class”


Environmental Overview – Colombo

The following is a summary of the Environmental Overview of the immigration functions at the Canadian High Commission in Colombo, Sri Lanka (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2014-2015 planning exercise, and is current as of January 2014.

Areas in blockquote are direct passages from the Environmental Overview.  If you would like to obtain a copy of the full Environmental Overview, please contact me.

Continue reading “Environmental Overview – Colombo”


Environmental Overview – Chandigarh

Earlier this year I published a partial reproduction of the Environmental Overview of the immigration functions at the Canadian Consulate in Chandigargh current to 2012.  The post was quite popular, and the following is a summary of the most recent Environmental Overview of the immigration functions at the Canadian Consulate in Chandigarh (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2014-2015 planning exercise, and is current as of January 2014.

Areas in blockquote are direct passages from the Environmental Overview.

Environment

The Canadian Consulate in Chandigarh (“CIC Chandigarh“) provides temporary residence processing in northwest India.

Chandigarh is a non-immigrant processing office. However in 2013 we processed some family class files in order to assist Delhi with their targets and to provide a learning experience for officers in Chandigarh. Over 400 family class applications were interviewed and processed to conclusion in 2013.

SuperVisas continue to account for 15% of our total visitor intake.

Systemic fraud necessitates a careful review of applications in all lines of business.

Interestingly, CIC Chandigarh has been active in meeting with Punjab government officials to provide input on the new Punjab Prevention of Human Smuggling Act, a law which provides a registration system for those performing immigration consultant services and provides stiff penalties for those who operate without being registered or who commit fraud.

Two quality assurance exercises have been completed in the past year, one on the genuineness of WP applicant’s employment history and one on the genuineness of bank documents provided by TRV applicants. Significant fraud was detected within the WP program and processing changes have been made to include up-front verifications on all worker cases. Little fraud was found in the bank document QA.

….

The AFLO participates in FCC initiatives and is a member of the New Delhi Taskforce. AFLO participated in Project Chakra, an FCC project to target unscrupulous agents in Punjab. This resulted in the arrest of six agents, including one arrest from a Canadian referral.

It is clear that CIC Chandigarh faces numerous fraud issues.

In Punjab, corruption with police continues to be a major challenge…………. It is widely reported in the media and senior police officials have admitted that their officers are easily bribed.

Identities of legitimate sponsors and their documentation is being recycled by agents in subsequent applications, especially with siblings……. and fraud is detected in about 10% of the cases.

Chandigarh has recently been receiving a large number of TRV applications that have nothing more than a hotel reservation and airline booking as supporting documents. Further investigation has uncovered that many of these applicants believed that they were applying for a WP but the agent only submitted a TRV application. After the inevitable refusal, in some cases, agents will convince the applicant they have been issued a WP by sending them a scan of a fraudulent WP and charging very large fees before the passport is returned.

As revealed in a WP QA exercise, there is a continuing trend of worker applicants submitting fraudulent experience letters. Over half of all WP applicants misrepresent their employment history.

Wow.

Temporary Resident Program

CIC Chandigarh had a decrease in Temporary Resident Visas in 2013 over 2012.  Combined with a small growth in the study and work permit programs the overall decrease in application intake was 6%.

Visitors

The vast majority of applications are submitted via the VAC. Applicants are able to submit urgent applications (e.g. death in the family) in person. We will soon close our window except for exceptional cases and plan to have urgent cases sent to us from the VAC with special coding so they will receive one day service.

PG1 applications continue to account for 15% of our total TRV applications. We strongly encourage applicants to do upfront meds and have changed information on the website to encourage them to do so.

Work Permits

Low skilled workers with unreliable documentation continue to add complexity to decision making.

Applicants submitting fraudulent employment reference letters especially with the truck driver applicants.

….. the vast majority of temporary worker applications are refused.

If you would like me to send you the full version of the Environmental Overview for Chandigargh please e-mail me.