One of the most frustrating experiences for people applying for visas is to have an application returned due to incompleteness. Because of processing delays, it often takes Immigration, Refugees and Citizenship Canada (“IRCC“) months to return an incomplete application, and applicants have to then start over. While the practice of returning incomplete applications was originally limited to IRCC, on June 20, 2014, the Ministry of Economic and Skills Development Canada (“ESDC“) released a Temporary Foreign Worker Program Bulletin titled “How to Handle Incomplete Applications.”
On January 27, 2016, the British Columbia Provincial Nomination Program (“BC PNP“) re-opened its Skills Immigration and Express Entry BC programs, and introduced the Skills Immigration Registration System.
The Skills Immigration Registration System is an expression of interest system to manage BC PNP Skills Immigration application intake. It is similar to Immigration, Refugees and Citizenship Canada’s (“IRCC”, previously “CIC”) Express Entry system, as only registrants who are invited by the BC PNP to submit full nomination applications can actually apply for nomination certificates. Simply meeting program requirements does not guarantee an Invitation to Apply for nomination.
The BC PNP determined that an application intake management system would be necessary in 2016 as the BC PNP had to frequently suspend intake to its programs in 2015. On March 31, 2015, the BC PNP announced a 90-day pause on intake to its Skills Immigration programs. On July 2, 2015, the BC PNP re-opened its Skills Immigration program to limited intake, and the programs were full within 36 hours. On September 1, 2015, the BC PNP suspended intake to its Express Entry BC programs, and, with the limited exception of a 50 spot opening in November, the BC PNP has not accepted applications to its programs since.
While the Skills Immigration Registration System is designed to prevent similar program closures in 2016, it does mean that many individuals who qualify for BC PNP Skills Immigration and Express Entry BC programs will be unable to apply this year.
The Skills Immigration Registration System is open, and is now accepting registrants. Potential applicants must qualify for a BC PNP Skills Immigration program, or an Express Entry BC program, at both the time of registration and application.
Skills Immigration and Express Entry BC
The BC PNP Skills Immigration stream contains the following programs:
- Skilled Workers
- Health Care Professionals
- International Graduates
- International Post-Graduates
- Entry Level and Semi-Skilled
- North East Pilot Project
While the detailed requirements of each program are beyond the scope of this newsletter, a brief summary of each program, including any significant changes from 2015, are as follows.
The Skilled Workers program is for individuals who have an offer of indeterminate, full-time employment with an eligible employer in British Columbia. The position must be in an occupation classified under National Occupational Classification (“NOC”) Skill Level 0, A, or B. Applicants must have a minimum of two years of directly related full-time (or full-time equivalent) work experience in the occupation for which they are offered a job.
The BC PNP is now defining “directly related work experience” as paid employment that is classified under the same NOC code as the British Columbia job offer. Experience in a related occupation at a NOC Skill Level equal to or greater than the NOC code of the B.C. job offer may be considered “directly related” where there is a reasonable explanation, however, experience in a lower skill level NOC occupation will not be. It is important to note that this new definition of “directly related work experience” may negatively impact people who have been recently promoted.
The Health Care Professionals program is for individuals have an offer of indeterminate, full-time employment with a public health authority in an occupation that is an a prescribed list of occupations related to health care, including physicians, nurses, allied health professionals, and, in certain circumstances, midwives. Applicants must have a minimum of two years of directly related full-time (or full-time equivalent) work experience.
The International Graduates program is for recent graduates who have an offer of indeterminate, full-time employment with an eligible employer in British Columbia. The position must be in an occupation classified under NOC Skill Level 0, A, or B. Alternatively, if the position is in a NOC Skill Level C or D occupation, then the applicant’s employer must demonstrate that there is a structured career plan in place that will lead to a NOC Skill Level 0, A, or B position. No previous employment experience is required; however, applicants must have a degree, diploma or certificate from an eligible post-secondary institution in Canada, and must apply to the BC PNP within two years of graduating.
The International Post-Graduates program is for recent graduates who have a masters or doctoral degree from an eligible program at a post-secondary institution in British Columbia. The program must be in agriculture, biological and biomedical sciences, computer and information sciences and support services, engineering, engineering technology, health professions and related clinical sciences, mathematics and statistics, natural resources conversation and research, or physical sciences. No job offer is required; however, applicants must apply within two years of graduating.
The Entry Level and Semi-Skilled (“ELSS“) program is for individuals who been employed full-time by a B.C. employer in an eligible occupation for at least nine consecutive months immediately prior to applying to the BC PNP, and who have a full-time and indeterminate job offer in that occupation from the same employer who employed them during those 9 months. Eligible occupations are prescribed, and include those in tourism and hospitality, long-haul trucking, and food processing. In addition to the nine months experience requirement, long-haul trucker drivers must also have at least two years of employment experience as a long-haul truck driver in the three year period before registering Skills Immigration Registration System.
The current occupations that are eligible for the ELSS program in the tourism and hospitality sector are::
|6525||Hotel Front Desk Clerks|
|6531||Tour and Travel Guides|
|6532||Outdoor Sport and Recreation Guides|
|6511||Maîtres d’hotel and Hosts/Hostesses|
|6513||Food and Beverage Servers|
|6711||Food Counter Attendants, Kitchen Helpers|
|6731||Light Duty Cleaners at Hotels / Resorts|
|6732||Specialized Cleaners at Hotels / Resorts|
|6733||Janitors, Caretakers, and Building Superintendents employed by Hotels / Resorts|
|6721||Support Occupations in Accommodation, Travel, and Facilities Setup Services at Hotels / Resorts|
|6741||Dry Cleaning, Laundry, and Other Service Support Occupations at Hotels and Resorts|
The Northeast Pilot Project is for individuals who have any full-time job offer in an NOC Skill Level C or D occupation, where that job is located in Northeast British Columbia. This pilot project program will run until March 31, 2016, and may be extended.
The following are additional requirements that apply to all programs above that are based on a job offer:
- The job offer must contain a wage that is competitive with B.C. wage rates for that occupation.
- The job offer must establish an employee/employer relationship with the employer. Independent contractor relationships are not accepted.
- If the job offer is in a NOC Skill Level B, C, or D, position, then the applicant will have to complete a language test, and demonstrate English or French language proficiency at a Canadian Language Benchmark 4 level in listening, speaking, reading, and writing. As well, the BC PNP may, at its discretion, require an applicant with a job offer in a NOC Skill Level 0 or A position to complete a language test where the BC PNP has concerns about an applicant’s language ability.
- The BC PNP will not approve applications where there are reasonable grounds to believe that an employer offered increased an employee’s wage for the purpose of meeting minimum income requirements, or for the purpose of obtaining a higher registration score.
- The applicant cannot own more than 10% of the company that has offered the applicant employment.
- Where the applicant is not already working for the employer, then the employer will have to conduct two weeks of bona fide and reasonable recruitment.
- The employer must have operated in B.C. for at least one year prior to the registration being submitted, and two years for applicants in the ELSS program or the Northeast Pilot Project.
- If located in Metro Vancouver, the employer must have five or more full-time (or full-time equivalent) and indeterminate employees. If the employer is located outside of Metro Vancouver, it must have at least three.
- Applicants must demonstrate that they meet the BC PNP’s minimum income requirements. This minimum necessary income will depend on an applicant’s family size and area of residence in British Columbia. Applicants who are already working in British Columbia must demonstrate a history of having met the minimum necessary income requirement prior to registering. ELSS applicants must have met the minimum income requirement for the full duration of their 9 qualifying months of employment. A spouse’s income will only be considered towards the minimum necessary income where the spouse has a valid work permit and is currently employed in British Columbia.
- The BC PNP will not approve applications where there are reasonable grounds to believe that an employer increased an employee’s wage for the purpose of meeting minimum income requirements, or for the purpose of obtaining a higher registration score.
The minimum income cutoff is.
|Family Income Threshold by area of Residence|
|Size of Family||Metro Vancouver||Rest of B.C.|
Finally, in all programs, applicants who are out of status and who have not applied for restoration of status will not be able to apply to the BC PNP.
Applicants who are in IRCC’s Express Entry pool should know that the BC PNP also has the following categories.
- Express Entry BC – Skilled Workers
- Express Entry BC – Health Care Professionals
- Express Entry BC – International Graduates
- Express Entry BC – International Post-Graduates
The Express Entry BC program requirements are similar to their corresponding non-Express Entry program requirements, with the exception that applicants must be in IRCC’s Express Entry pool at the time of registration, and Express Entry BC – International Graduates program participants require a job offer in a NOC Skill Level 0, A, or B position. In 2015 the advantage of applying to an Express Entry BC program rather than its corresponding non-Express Entry BC program was that the Express Entry BC programs had faster processing times. The same will presumably be true in 2016.
The Skills Immigration Registration System
Individuals who meet the minimum requirements for a BC PNP program described above can create an online profile and register in the SIRS. Registration is free of charge. Individuals may only have one active registration at a time, and they must indicate which stream they wish to be considered under.
It is important that information inputted during SIRS registration be accurate, as differences between the information in a registration and an application may lead to the BC PNP refusing an application.
Scoring in the Skills Immigration Registration System pool is as follows:
|Scoring Sections||Maximum Points|
|Skill Level of the B.C. Job Offer||60|
|Wage of the B.C. Job Offer||50|
|Regional District of Employment||10|
|Directly Related Work Experience||25|
|Highest Level of Education||25|
|Maximum Total Points Available||200|
Skill Level of the B.C. Job Offer points are calculated as follows:
|NOC Skill Level A (including Skill Type 0)||25|
|NOC Skill Level B||10|
|NOC Skill Level C||5|
|NOC Skill Level D||5|
|Occupation is a “00” NOC||15|
|Occupation identified in the Top 100 occupations in the BC Labour Market Outlook 2014-2024||10|
|Currently working in B.C. for the employer in occupation identified in the BC PNP registration||10|
|Maximum Score Available||60|
Wage of the B.C. Job Offer points are calculated as follows:
|$100,000 and above||50|
|$97,500 to $99,999||38|
|$95,000 to $97,499||37|
|$92,500 to $94,999||36|
|$90,000 to $92,499||35|
|$87,500 to $89,999||34|
|$85,000 to $87,499||33|
|$82,500 to $84,999||32|
|$80,000 to $82,499||31|
|$77,500 to $79,999||30|
|$75,000 to $77,499||29|
|$72,500 to $74,999||28|
|$70,000 to $72,499||27|
|$67,500 to $69,999||26|
|$65,000 to $67,499||25|
|$62,500 to $64,999||24|
|$60,000 to $62,499||23|
|$57,500 to $59,999||22|
|$55,000 to $57,499||21|
|$52,500 to $54,999||20|
|$50,000 to $52,499||19|
|$47,500 to $49,999||18|
|$45,000 to $47,499||17|
Regional District of Employment points are as follows:
|Regional District of Employment||Points|
|Stikine, Central Coast, Northern Rockies, Mount Waddington, Skeena-Queen Charlotte, Powell River, Sunshine Coast, Kootenay-Boundary, AlberniClayoquot||10|
|Kitimat-Stikine, Bulkley-Nechako, Squamish-Lillooet, Strathcona, ColumbiaShushwap, East Kootenay||8|
|Peace River, Comox Valley, Cariboo, Central Kootenay||6|
|Okanagan-Similkameen, Cowichan Valley, North Okanagan, Fraser-Fort George||4|
|Thompson-Nicola, Nanaimo, Central Okanagan||2|
|Capital, Fraser Valley||2|
|Maximum Score Available||10|
Directly Related Work Experience points are calculated as follows.
Directly related work experience is work experience in the same NOC code, or work experience in an equal or higher NOC Skill Level where justification is provided.
|Directly Related Work Experience in the Occupation of B.C. Job Offer||Points|
|4 to 5 years||12|
|3 to 4 years||9|
|2 to 3 years||6|
|1 to 2 years||3|
|Less than 1 year||1|
|At least 1 year of directly related experience in Canada||10|
Highest Level of Education points will be scored as follows. The duration of the program must have been at least six months. It is important to note that language training programs do not qualify for bonus points.
|Doctoral of Master’s Degree||17|
|Post Graduate Certificate or Diploma||11|
|Non-trades certification or diploma||2|
|Post-secondary education completed in B.C.||8|
|Post-secondary education completed in Canada (outside of B.C.)||6|
|Educational Credential Assessment from a qualified supplier||4|
|Trades certification assessment from the Industry Training Authority||4|
|Maximum Score Available||25|
Language points will be based on testing from designated testing agencies as follows. It is important to note that language ability will be scored on an applicant’s lowest score for reading, writing, speaking, or listening.
|Below 4 or no test||0|
|Maximum Score Available||30|
The BC PNP will be periodically issuing Invitations to Apply (“ITAs“). Only the highest scoring registrants will be issued ITAs. Individuals who achieve or exceed the following registration scores will be guaranteed to receive an ITA.
|Skills Immigration – Skilled Worker||135|
|Skills Immigration – International Graduate||105|
|Skills Immigration – Entry Level Semi Skilled||95|
|Skills Immigration – Northeast Pilot Project||95|
|Express Entry BC – Skilled Worker||135|
|Express Entry BC – International Graduate||105|
At its discretion, the BC PNP will issue ITAs for scores lower than the above. The number and frequency of draws will be based on nomination allocation and program processing capacity. The BC PNP plans on managing application intake so that 25% of applications will be BC PNP Express Entry applications, 35-45% of applications will be Skilled Workers applications, 15-20% of applications will be International Graduates applications, and 10-15% of applications will be ELSS and Northeast Pilot Project applications.
More information about the Skills Immigration and Express Entry BC programs can be found here: http://www.welcomebc.ca/welcome_bc/media/Media-Gallery/docs/pnp/BC-PNP-Skills-Immigration-and-Express-Entry-BC-Technical-Guide.pdf
Please contact us if you have any questions or concerns about his upcoming change.
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?
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When visa officers have concerns regarding a completed application, they often convoke interviews. The interview provides the applicants to address these concerns. In this post I hope to convey to applicants the basic procedural fairness rules that they can expect.
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On February 17, 2015, the Province of British Columbia published the results of the following FOI request:
Specific fields of data, tabulated by year for the past four years, within the Performance Agreements for Business Immigration including: the number of agreements signed, investment amount committed and number of jobs committed as well as the agreements fulfilled, the actual investment amounts and actual number of jobs. Timeframe is 1 January 2011 to 31 December 2014.
The FOI results are embedded below. There are many things that one can conclude from the data. What is clear is that except for 2012, the “performance agreement success rate” is around 50%.
[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.
The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.
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During the time that I have been writing this blog the most frequently asked question that readers have asked me is whether their IELTS band scores are sufficient for certain immigration programs. Some people have even offered to book initial consultations with me just so that I would review their IELTS scores. This has always been somewhat surprising to me given that the Citizenship and Immigration Canada (“CIC”) website publishes each of its program’s respective language requirements in a clear and concise manner.
Indeed, it is not just members of the general public that seem to be confused. As shown in the exchange below, which I obtained through an Access to Information Act request, some immigration lawyers are unclear of the requirements. (Please note that what I have reproduced below should not be viewed as legal advice. 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.)
Question – May 21, 2013
Dear Sir/ Madam,
I have been referred to your office, by Karen Flynn, of NHQ-Immigration in Ottawa, her phone number is _______.
I practice immigration law in Toronto, and I have the following question, regarding the Federal Skilled Worker Class, in light of the recent changes, in effect, as of May 4, 2013:
- the IETLS benchmark is CLB 7, i.e. 6 points, for each ability. If the results of a foreign national are, for example, in 1, or 2, or 3 abilities in the CLB 8 or higher, but 1 ability, or 2, or 3, are at CLB 7level, can I give 5 or more points per ability, for the CLB 8, or higher, and 4 points, for the CLB 7 result, or once one of the results is in the CLB 7 area, all abilities can only receive 6 points, i.e. 16 points.
Basically, can I give points for each ability depending on where the ability is in the CLB range, e.g. 2 abilities are 6.0, and 2 abilities are 6.5, is the assessment 18 points or 16 points?
I look forward to your response.
Answer – May 22, 2013
Thank you for your inquiry.
As of May 4, 2013, all applicants under the Federal Skilled Worker Class must demonstrate that they meet the minimum language proficiency threshold of CLB 7 in all four language abilities.
As outlined in section 11.2 of the OP 6C operational manual, officers will award points for first official language proficiency based on the applicant’s demonstrated CLB level per language ability. For example, an applicant who had obtained CLB 7 in two language abilities and CLB 8 in the other two language abilities would be awarded a total of 18 points for first official language proficiency (4 points for each language ability in which their proficiency meets the minimum threshold+ 5 points for each language ability in which their proficiency exceeds the minimum threshold by one benchmark level).
There are three aspects of CIC’s response to the question above that I wish to elaborate on. The first is where individuals can locate information about a program’s language requirements on the CIC website. The second is the distinction between the Canadian Language Benchmark (“CLB”) and the IELTS bandscores, and how to calculate equivalence. Finally, I will also address whether there are language requirements to becoming a temporary foreign worker.
The Languages Manual
The CIC website publishes all of its publicly available program manuals on its website here. While there are some private manuals that can only be accessed through Access to Information Act requests, they probably only significantly impact to 5 – 10% of people interact with CIC.
As shown in the image above, in order to simply its language requirements, CIC has consolidated its language requirements into a single, online manual on its website. The languages manual is divided into the following sections:
- Canadian Experience Class
- Federal Skilled Trades
- Federal Skilled Workers
- Live-in Caregivers
- Provincial Nominees
- Criteria for Designation as a Language Testing Agency
- Designated Language Testing Agencies
- Equivalency Charts
- Integrity Concerns with Respect to Language Results
Except for the language requirements for the Temporary Foreign Worker Program (“TFWP”), which is discussed below, the manuals above comprehensively describe most of the language requirements for CIC’s various programs.
CLB vs. IELTS
It is important that prospective applicants distinguish between their IELTS scores and the CLB. This can be especially confusing to people considering that the scoring system looks similar.
The CLB is the national standard used in Canada for describing, measuring, and recognizing the English language proficiency of adult immigrants and prospective immigrants for living and working in Canada. It classifies English language ability according to 13 language benchmarks.
The IELTS are one of the language tests that the Respondent has designated as being an acceptable test to asses an applicant’s CLB. There are nine IELTS band levels, and CIC has produced numerous charts on its website showing equivalencies of the 9 IELTS bands to the 13 CLB levels.
The distinction is important. I occasionally meet individuals who did not apply for the Canadian Experience Class (“CEC”) because they were told that they needed a 5.0 in all language abilities. While this is technically true, the “5.0 requirement” refers to CLB, not IELTS. As shown above, an IELTS Listening Score of 4.0 is equal to a CLB score of 5.0. Hence, these individuals erred in assuming that they were not eligible. As the CEC has application caps, delaying applying to unnecessarily re-write the IELTS can have significant detrimental consequences.
The Temporary Foreign Worker Program
Many people mistakenly assume that the TFWP does not have language requirements. Work Permit applicants accordingly often question CIC’s authority to request proof of language ability during the Work Permit application process, which is becoming increasingly common.
Section 8.3 of the CIC’s Temporary Foreign Worker Manual states:
R 200 (3) (a) states that:
“An officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.”
Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job.
Additionally, the officer can consider:
- the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
- terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”
An officer should NOT consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance. Such a consideration is beyond the scope of the current legislation.
The same principles respecting official language capability and the applicant’s ability to perform the work sought apply irrespective of the skill level of the intended occupation. There is no separate standard or criteria for applicants at NOC skill levels C or D.
An applicant’s language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMO requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that h/she would be able to perform the work sought.