Labour Market Impact Assessments – Recruitment Requirements (2016)

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

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Returning to Canada After Previously Overstaying

It is not uncommon for people who have previously overstayed in Canada to wish to return.  Many people worry that it will not be possible to do so. However, regardless of whether one previously overstayed but left Canada before Canadian immigration authorities discovered the overstay, or even if one was ordered to leave Canada, it is certainly possible and common that a Canadian visa office abroad will approve a visa to allow that person to return to Canada, despite the previous non-compliance.

The following is a reference letter that an applicant used in the case AlOmari v. Canada (Citizenship and Immigration). It is as a good example of the level of detail that should go into such a letter, and can serve as a useful reference for others.

In November 2015, I made the mistake of not renewing my study permit because I was not able to complete my flight training during the unstable weather conditions of the fall and winter seasons. This bad decision and judgment call is what led me to overstaying.

I could not leave until July 11, 2016 because I was required to remain with my wife and sisters who were actively studying. As outlined in the translated Saudi government scholarship rules, female students are required to travel and live with a male relative, such as a father, husband or brother. Leaving my wife and sisters would have led to them losing their scholarships, and ability to study.

I should have sought the assistance of a lawyer to discuss how I could extend my stay in Vancouver, even though I could not complete my flight training during the fall and winter seasons. My current lawyer informed me that I could have extended my stay in Canada as a visitor until I was ready to get back to my studies. I wish I knew that because it would have saved me and my family a lot of time, stress and grief over the past four months.

My wife and sisters were expecting to return to their studies in September 2016. However, the denial of my study permit and visa application has put their plans and dreams of completing their education in Canada at risk. They were unable to contact their schools in Vancouver, and postpone their classes until January 2017.

As you may know, I have been living and studying in Canada since April 2008, and this was the first time I failed to renew my status. This experience has taught me an unforgettable lesson, because my mistake has impacted the ability of my determined, ambitious, and hardworking wife and sisters to complete their English studies and to obtain undergraduate degrees from Canada.

I know clearly understand the rules for visitors in Canada, and the consequences of not following the rules. I understand that I must renew my status before it expires, and that overstaying could lead to the denial of future applications and it could lead to me being deported from Canada and to the denial of future applications and it could lead to me being deported from Canada and denied entry for a year. I have no intention of overstaying ever again, and I commit to returning to Saudi Arabia with my family at the end of our stay in Canada.

I also understand that I cannot study or work in Canada without the proper authorization and permits. I will not return to my flight training until I apply for and receive a study permit to do so. My plan is to take care of my children while my wife is studying, and to apply for a study permit around spring time. I am applying for a visitor visa at the moment because it takes less time to process than a study permit, and my wife and sisters are anxious to return to their studies in January 2017.

I apologize sincerely for my mistake, and I hope that you forgive me. My wife, sisters and I are praying to return to Vancouver together at the end of this month. We look forward to hearing from you as soon as possible, and I am available to answer any questions you might have.


The Post-Graduation Work Permit

Canada’s Post-Graduate Work Permit (“PGWP”) program allows international students who have completed certain Canadian post-secondary programs to obtain work permits after graduating.  The work permits are open, meaning that the graduates can work for any employer(s) in any Canadian province(s).  It is a fantastic program that enhances the competitiveness of Canadian post-secondary institutions internationally, and is normally an essential transitory step for international graduates looking to eventually obtain Canadian permanent residency.

However, every year there are many international students who mistakenly think that they will be eligible to participate in the program after graduating only to discover midway through their studies that they cannot.  It is accordingly very important that all international students in Canada understand how the PGWP program works.

Basis in Law

Section 205 of Canada’s Immigration and Refugee Protection Regulations provides the government with the authority to create programs to issue work permits to foreign nationals when it is satisfied that public policy objectives relating to the competiveness of Canada’s economy or academic institutions are met.  The PGWP is one of these programs, and detailed information about it can be found on the Immigration, Refugees and Citizenship Canada (“IRCC“) website here.

As the Federal Court has noted in numerous decisions (such as Osahar v. Canada), immigration officers can determine these requirements to be binding.

Eligibility and Validity

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

A PGWP’s duration will be equal to the length of the educational program that the international graduate completed, up to a maximum of three years.  Any completed program that is longer than two-years will result in a three-year work permit.  In other words, a two-year diploma and a four-year degree will both result in a three-year work permit.

It is important to note that it is the length of the program of study that is important, and not the actual time that it takes an international student to complete their program. For example, if a student enrolls in a program of study that is normally eight months in duration, but completes it in six months, then the student will be able to obtain an eight-month work permit after graduating. Conversely, an international student who takes two years to complete a one-year program will only receive a one-year PGWP.

There are complicated rules and scenarios for students transferring from one program to another, or completing multiple programs, that are beyond the scope of this article.  However, a particularly common one is that students who obtain a one-year degree or diploma from an eligible institution in Canada after having obtained, with the prior two-years, another diploma or degree from an eligible institution in Canada, may be issued a work permit for up to three years.  For example, if a student obtained a one-year diploma from the University of British Columbia in 2013, and then in 2015 obtained a MBA from the University of Toronto, then he would be able to obtain a three-year PGWP.

Graduates may submit their applications online, or, in certain cases at a Canadian port of entry or at overseas visa offices.  Students who have completed their program of study and who apply for their PGWPs are permitted to work in Canada while IRCC processes their applications, provided that they were indeed full-time students enrolled in eligible programs while they were studying, and that they did not exceed their authorized off-campus work periods while they were students.

Finally, unlike with international students, the spouses or common-law partners of PGWP holders are not automatically entitled to open work permits.  They will only be eligible if the PGWP holder obtains skilled employment, and can demonstrate this to IRCC by presenting an offer of employment as well as a copy of one or more pay slips.

Ongoing Complications

Students who complete a program of study granted by a non-Canadian institution located in Canada are ineligible to obtain work permits under the PGWP program.  However, students completing a program of study that has, as part of the program, an overseas component, such as an exchange, will be eligible as long as they earn a Canadian educational credential.

There are two further restrictions, or potential restrictions, to obtaining PGWPs that are currently the subject of litigation that potential international students and graduates should understand.

The first is that students participating in distancing learning programs, either abroad or in Canada, are ineligible to obtain PGWPs.  In 2015, this restriction generated considerable media attention, as IRCC refused the PGWP applications of an entire graduating class at a private post-secondary institution after IRCC determined that the institution’s program constituted online learning.  Some of these graduates have sought intervention from the Federal Court of Canada, and one of the questions before the court is whether there is a percentage of online courses threshold that must be met before IRCC can declare a program ineligible.  Until either IRCC or the Federal Court provides clarification on this matter, international students who wish to participate in the PGWP program should understand the possible negative consequences of enrolling in any online courses.

Second, recent graduates applying for PGWPs must ensure that they complete their PGWP applications promptly and properly.  With most work permits applications, if IRCC either refuses or bounces an application for incompleteness, then an applicant can typically apply for restoration of status within 90 days.  It is not clear, however, whether restoration is possible in the case of the PGWP because of the IRCC’s requirement that a recent graduate’s study permit be valid when they apply for their PGWP, although several Federal Court decisions seem to imply that it really is up to the officer.

Indeed, the PGWP has a surprisingly high refusal rate. During the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March was 40% or more. 


Work Permits for Post-Doctoral Fellows and Research Award Recepients

Immigration, Refugees and Citizenship Canada has a Labour Market Impact Assessment (“LMIA“) exemption for post-doctoral fellows awarded a Doctorate of Philosophy and research award recipients. The advantage of such an exemption is that a person can obtain a work permit without the need of the prospective employer to first test the Canadian labour market.

Post-doctoral fellows holding a Ph.D. or its equivalent

To qualify for a work permit under this LMIA exemption, the prospective foreign worker must:

  • have completed, or be expecting to complete shortly, their doctorate;
  • be working in a field related to that in which they earned, or are earning, their Ph.D.;
  • be the direct recipient of the award involving work and remuneration;
  • actively contribute to and benefit a Canadian research project;
  • demonstrate academic excellence or expertise in a field related to the particular work to be undertaken;
  • be working in a time-limited position that reflects the experience and expertise of the applicant and the role that they will play on the project;
  • have a significant role to play or value to add to the research project.
  • hold an official position or an affiliation or registration with a credible academic or educational institution or agency in their country of citizenship or residence.

The post-doctoral fellows can either be the direct recipients of theaward or be offered a time-limited position to undertake research on behalf of or as part of a team of researchers.

Awards

In order for a person to receive a work permit based on an award, the prospective foreign worker must have received an award that was:

  • given based on merit and academic excellence;
  • based on the result of a competitive assessment and review process.
  • not be primarily for recruitment or commercial purposes

The employer must be a credible Canadian academic or educational institution or agency, or a closely affiliated organisation

Approval Rates

As can be seen in the table below, the approval rate for these types of work permits is very high, and is typically over 95%.

 



LMIA Exemption for Francophones

Immigration, Refugees and Citizenship Canada (“IRCC”) has a program to facilitate the ability of francophone foreign workers to enter Canada.  The benefit of the program, called Moibilte Francophone, is that no Labour Market Impact Assessment (“LMIA“) is required.  This means that employers of prospective francophone foreign workers do not need to pass a labour market test in order to employ francophone foreign workers.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Here are some other key things to note about the program.
1. Recruitment through a francophone immigration promotional event coordinated between the federal government and francophone minority communities is no longer required. 
Previously, participation in Moibilte Francophone was restricted to prospective foreign workers recruited through government promotional events. This requirement, which the government interpreted incredibly broadly in any event, is no longer the case.
Previously, the program worked as follows:

2. Habitual French speaking abilities are required, but not for the job. 
To approve the work permit application officers must be satisfied that the foreign national’s habitual language of daily use is French.
Where the officer is not satisfied the foreign national’s habitual language is French, applicants may need to attend an interview or provide language results demonstrating an advanced intermediate level or above in French. An “advanced/intermediate” level is defined as Canadian Language Benchmark 7.
Importantly, the offer of employment in Canada does not have to require French language ability.
3. Applicants cannot apply at ports of entries. 
French citizens can typically apply for work permits at Canadian ports of entry. However, under Moibilte Francophone, initial work permits must be submitted online.
4. There is no corresponding program for anglophones seeking employment in Quebec.
The legal justification for providing preferential treatment to francophones intending to work outside of Quebec is based on s. 3(1)(b) of the Immigration and Refugee Protection Act (the “Act“), which states that one of the goals of Canada’s immigration system is:

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Although there is no legal reason why this LMIA exemption cannot also theoretically apply to anglophones seeking employment in Quebec, people awaiting an Operational Bulletin to this effect hopefully know how to hold their breath for a long time.

5. The goal is to increase francophone immigration. 

Mobilite Francophone corresponds with other advantages given to francophone individuals who are applying for permanent residency through Express Entry.

It is not hard to see why special programs are needed.

As the chart below shows, the percentage of immigrants of francophone descent outside of Quebec is around 1%.

FrancophoneImmigration

 


Work Permits for Camp Counsellors

As of March 1, 2017, camp counsellors going to residential camps during the summer season are exempt from the Labour Market Impact Assessment (“LMIA“) requirement.  They can apply for work permits once their employers submit their online offers of employment into the employer compliance portal.

Religious Camp Counsellors

Religious camp counsellors should note that they should not be indicating in their online offer of employment offers that the LMIA exemption code is religious or charitable work under LMIA exemption code C50.  Immigration, Refugees and Citizenship Canada (“IRCC”) has determined that the normal work of a camp counsellor (whose primary duties consist of supervising children and leading sports, crafts, games and other recreational activities) is not considered religious in nature. Rather, LMIA exemption code C20 should be used.

In the case of a counsellor who is unpaid and who works for a charitable or religious organization, an employer compliance fee fee exemption may apply. To be fee-exempt, the foreign national cannot receive remuneration other than a stipend for living expenses, which, if monetary, should be below the prevailing minimum wage. Otherwise, the foreign national should receive only non-monetary benefits (e.g., accommodation and health care). It is the responsibility of the organization to prove that they are charitable or religious.

More information about this can be found here.


The Canadian Visa Requirement for Mexican Citizens – A Policy which is No Longer Needed

During Canada’s 2015 federal election, the Liberal Party of Canada, led by Justin Trudeau, promised that if they were elected government that Canada would lift its visa requirement on Mexico.  This campaign promise is reflected in now Prime Minister Trudeau’s mandate letter to John McCallum, the Minister of Immigration, Refugees, and Citizenship, which states that one of Minister McCallum’s top priorities will be to lift the visa requirement on Mexico.

The decision by the previous Conservative Government of Canada in 2009 to implement a visa requirement for Mexican citizens was extremely controversial.  It is difficult to determine whether it was a good public policy decision because of the numerous factors involved, each with corresponding benefits and costs.  It is clear, however, that the implementation of the visa requirement did achieve the government’s primary objective, which was to dramatically reduce refugee claims from Mexican citizens in Canada.  However, subsequent changes to Canada’s immigration refugee system, likely mean that the visa requirement is no longer necessary to achieve this objective.

The Visa Requirement

Canada imposed a visa requirement on Mexican citizens on July 14, 2009.  The Canadian government stated that it did so to dramatically reduce the number of unfounded refugee claims made by Mexican nationals due to their visa-free access to Canada.  Mexico was at the time the top source country for asylum claimants in Canada, and had been so since 2005.

The imposition of the visa requirement imposed a significant burden on Mexican citizens wishing to travel to Canada.  Instead of being able to simply board an airplane and travel to Canada, Mexican citizens now prior to travel have to apply for a temporary resident visa at a Canadian consulate, or online.  In addition to completing numerous forms, as of writing Mexican nationals are required to provide proof of financial support, including copies of bank statements for three months, employment verification, and other proof of connections to Mexico. Where a Canadian invitee will be paying for the trip, that individual is required to provide proof of funds.

Many individuals and organizations, including the Canadian government, predicted that the imposition of the visa requirement would result in a dramatic decrease in the number of Mexicans who travelled to Canada.  In 2008, there were over 270,000 entries by Mexican citizens into Canada.  When the Canadian government imposed the visa requirement, it stated that it anticipated that approximately 150,000 Mexican citizens would apply for temporary resident visas annually.  According to the Tourism Industry Association of Canada (the “TIAC”), the number of Mexicans visiting Canada plummeted by 50% after the implementation of the visa requirement, although the number of Mexicans visiting Canada has now reached pre-2009 levels.  The TIAC estimates that an additional 320,000 Mexicans would have visited Canada and spent over $465,000,000.00 from 2009-2014 were it not for the visa requirement.  The impact on trade has been forecasted to be in the billions.

However, if the Government of Canada’s primary objective in imposing the visa requirement was to reduce the number of Mexican refugee claims in Canada, then the decision was a resounding success.  In 2009 there were 7,592 asylum claims from Mexican nationals.  By 2012, this number had fallen to 321.  Mexico during this period went from being the highest source country for asylum claims in Canada to the 22nd highest country in 2012.  At the same time, the percentage of Mexican claims that were approved increased from 11% in 2010 to around 20% in 2013.

CIC data shows:

Year

Intake Finalizations Acceptance Rate (%) Rejection Rate (%) Abandon Rate (%)

Withdrawn / Other Rate (%)

2007

7,162 3,662 11 59 8 23

2008

9,472 5,707 11 60 6 24

2009

7,592 6,097 8 56 7 29

2010

1,202 5,880 11 59 6

24

2011 651 6,099 17 69 5

10

2012 321 3,041 19 71 4

7

2013 (Jan – Jun) 36 682 20 67 5

9

 

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Indeed, by 2013-2014 Mexico was a minuscule percentage of Canadian refugee claims.

Capture

It is important to note that CIC data also shows that 57% of Mexican asylum claims made in the first quarter of 2010-2012 were made by individuals who entered Canada prior to the visa imposition.

Indeed, based on the previous refugee acceptance rates prior to the imposition of the visa requirement for Mexicans, in June 2013 CIC estimated that without the visa requirement, Canada would have received an additional 19,895 asylum claimants from July 2009 through December 14th, 2012, of which 2,493 claims would have been accepted, 12,331 rejected, and 5,081 abandoned or withdrawn.  The cost to Canada would have been immense.

When Minister McCallum lifts Canada’s visa requirement against Mexico there will likely be those who suggest that it was never necessary, or, as the Globe and Mail did in 2014, that it was other changes to Canada’s immigration and refugee system that actually caused the drop in Mexican asylum claims.  These changes, however, happened after the steep decline occurred.  Having said that, while a review of the above data makes it clear that it was the imposition of the visa requirement that led to the steep decline in Mexican refugee claims, the previous government’s subsequent changes will hopefully ensure that the lifting of the visa requirement does not cause the situation to revert back to what it was in 2008.

Changes to the Immigration and Refugee System

After the imposition of the visa requirement the Canadian government made several changes to Canada’s immigration and refugee system which will likely ensure that the number of unfounded asylum claims by Mexicans in Canada does not revert to 2008 levels.  These are the decision to shorten the time that refugee claims make, the prohibition on submitting permanent residence applications based on humanitarian & compassionate grounds within one year of the refusal of a refugee claim, the designation of Mexico as a safe country of origin, and the upcoming implementation of the Electronic Travel Authorization.

On June 28, 2012, Bill C-31, the Protecting Canada’s Immigration Act, received Royal Assent.  Prior to the implementation of Bill C-31, the average Mexican refugee claim that was not withdrawn or abandoned took over eighteen months to process.  During this time the claimants would be allowed to work anywhere in Canada, and if their claim was refused they could submit an application for permanent resident status on humanitarian & compassionate grounds, citing their establishment in Canada as a positive factor in the application.  As a result of Bill C-31, the amount of time that it took was reduced to sixty days. As well, most asylum seekers became prohibited from submitting humanitarian & compassionate permanent residence applications.

Then, on February 13, 2013, the Canadian government designated Mexico as being a safe country of origin. This designation further reduced the amount of time that it takes to process a Mexican refugee claim to 45 days for those who make a refugee claim at a port of entry, and 30 days after referral for those who make a claim at an inland immigration office. As well, Mexican refugee claimants became ineligible to apply for work permits.  (The decision to designate Mexico as being a safe country was also controversial, and the Liberal government may eventually remove Mexico from the designated list.  Prime Minister Trudeau’s mandate letter to Minister McCallum states that he is to “establish an expert human rights panel to help you determine designated countries of origin,” and it may mean that this is a hint that Mexico may soon be removed.)

Finally, as of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a temporary resident visa to enter Canada will be required to obtain an Electronic Travel Authorization before they travel to Canada by air.  As such, even without the visa requirement, it will no longer be the case that Mexican nationals will simply be able to purchase tickets and board planes to travel to Canada.  Rather, they will be unable to board commercial airlines to Canada unless the airlines first confirm that they have permission to enter Canada.  Having said that, the requirements will be much less onerous than they are currently.

Although it is impossible to be 100% certain, the above changes should prevent a spike in the number of unfounded refugee claims by Mexican nationals in Canada when Canada lifts the visa requirement.

What About Brazil, Romania, and Bulgaria?

If Prime Minister Trudeau fulfils his campaign promise, his decision to lift the visa requirement against Mexico should not turn into a partisan affair.  In fact, the previous Conservative Government of Canada’s 2015 Economic Action Plan, the Conservatives promised that in 2015-16 that Canada would lift the visa requirement against Mexico, Brazil, Romania, and Bulgaria.

Indeed, if Prime Minister only lifts the visa requirement against Mexico, and not against Brazil, Romania, and Bulgaria, the question should be why just Mexico.