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.


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.


Canadian Immigration Embassy Interview Strategies and Tips

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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Foreign Worker Stats – 2004 – 2014

The following are some interesting stats on the number of foreign workers in Canada from 2004 – 2014.

The first chart is for the number of foreign workers in the Temporary Foreign Worker Program from 2004 – 2014. The top four countries where the Philippines, India, the United States of America, and Mexico.

TFWStats

In the International Mobility Program the top 5 countries are very different. There, it is the United States of America, India, China, and France.

The data also shows that from 2004 – 2014 the number of temporary foreign workers in Canada more than doubled from 86,551 to 177,704.  Almost all of this growth was in the Labour Market Impact Assessment Program, with most of it being lower-skilled foreign workers.

There was also considerable growth in the International Mobility Program, with the number of work permit holders going from 110,525 to 390,273 during the period from 2004 – 2014.  Much of the growth came from the introduction of the Post-Graduate Work Permit Program, International Experience Canada, and C-10 applications.


eTA Regulations Amended

On April 13, 2017 the Government of Canada introduced several regulatory amendments to the Electronic Travel Authorization (“eTA”) regime.  The changes to the eTA program came into effect on May 3, 2017.  Before reading about the changes, those who are unfamiliar with the eTA should read my previous posts on this topic titled ETA Regulations Announced and Electronic Travel Authorizations.

In brief, the eTA is an electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers who are visa-exempt must apply online for an eTA by providing basic biographical, passport and personal information. An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review.

It is similar to ESTA in the United States.

Brazil, Bulgaria and Romania

Effective immediately, citizens of Brazil, Bulgaria, and Romania no longer need to apply for temporary resident visas to visit Canada and can instead apply for eTAs if they have held a temporary resident visa at any time during the 10-year period immediately preceding the day on which they make their application or hold a valid United States nonimmigrant visa on the day on which they make their application.

However, Brazilians, Bulgarians and Romanians will still generally need a visitor visa if driving to Canada from the U.S. or arriving by bus, train or boat, including a cruise ship from Alaska (even if someone is not leaving the ship).

This requirement for a visa will be lifted for Bulgarians and Romanians on December 1, 2017.

There is no indication when it will be lifted for Brazilians.

As remains the case for all people who require visas to visit Canada, Brazilians, Bulgarians and Romanians will not need a visa to return to Canada by land if they travel to the United States, and only the United States, and return to Canada within the period authorized by their initial entry into Canada, which is typically six months but can be longer or shorter in certain circumstances.

Automatic eTA Applications

The regulatory amendments also clarify that work and study permit applications, and work and study permit renewal applications, will also be considered eTA applications. This will save many foreign nationals from having to submit a separate eTA application.

Ineligibility 

Previously, an officer could only cancel an eTA if the officer determined that a person was inadmissible to Canada or part of an irregular arrival to Canada.

Now, a foreign national who holds an eTA becomes ineligible to hold such an authorization to enter Canada if, following its issuance, the person either:

  1. becomes the subject of a declaration that they were part of an irregular arrival to Canada;
  2. is issued a Temporary Resident Permit to overcome an inadmissibility to Canada;
  3. becomes the subject of an admissibility report;
  4. becomes the subject of a removal order;
  5. withdraws an application to enter Canada at a port of entry;
  6. is refused a temporary resident visa becomes it is determined that they are unlikely to leave Canada by the end of their authorized stay;
  7. is refused a work permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
  8. is refused a study permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
  9. for citizens of Brazil, Bulgaria and Romania it is discovered that they did not actually hold an American visa or that they had a previous Canadian visa.

In any of these circumstances, an officer may cancel the person’s eTA.

 

 

 

 


LMIA Cap on Low Wage Employees

Canada’s Temporary Foreign Worker Program (the “TFWP“) allows employers to bring foreign workers to Canada to temporarily fill jobs for which qualified Canadians are not available. After the program became increasingly controversial in 2012-13, the Department of Employment and Social Development Canada (“ESDC“) on June 20, 2014 imposed a cap limiting the proportion of low-wage foreign workers that businesses can employ.

How the Cap Works

Employers with a company-wide business size of 10 or more employees are subject to the cap.  The cap percentage is determined for each individual worksite location and is based on paid positions and total hours worked at that worksite.

Employers that are new to the TFWP or returning employers who did not have any foreign workers on staff on June 20, 2014 are capped at 10% low-wage foreign workers for each work location.

The cap, implemented on June 20, 2014, was phased in to provide employers time to transition to a Canadian workforce which means that they are limited to a:

  • 20 percent cap on the number of foreign workers in low-wage positions, or the employer’s established estimated cap (whichever is lower), if the employer hired a TFW in a low-wage position prior to June 20, 2014; or
  • 10 percent cap on the number of foreign workers in low-wage positions if the employers did not employ a TFW in a low-wage position prior to June 20, 2014.

Effectively, companies are limited to a 10% cap on the proportion of low-wage foreign workers that they can have.  The low-wage is based on a province’s median wage, which as of writing is as follows:

Province/Territory Wages prior to

April 29, 2016

2014 Wage ($/hour)

Wages as of

April 29, 2016

2015 Wage ($/hour)

Alberta $25.00 $25.38
British Columbia $22.00 $22.60
Manitoba $19.50 $20.00
New Brunswick $18.00 $18.50
Newfoundland and Labrador $21.12 $20.91
Northwest Territories $30.00 $31.25
Nova Scotia $18.85 $19.00
Nunavut $29.00 $28.92
Ontario $21.15 $22.00
Prince Edward Island $17.49 $18.00
Quebec $20.00 $20.60
Saskatchewan $22.00 $22.80
Yukon $27.50 $28.51

The calculation of the cap can be complicated, and is perhaps best summarized by this portion of ESDC’s Schedule E – Cap for Low-Wage Positions.
schedulee

The Schedule E also contains sections on how the addition of foreign workers would impact the cap.

The cap does not apply to:

  • Employers with a company-wide business size of fewer than 10 employees;
  • Employers hiring foreign workers for positions related to on-farm primary agriculture, including the Seasonal Agricultural Worker Program;
  • Positions that are truly temporary (e.g. emergency and warranty positions);
  • Positions that are highly mobile or truly temporary and no more than 120 calendar days. This duration
    can be extended if an employer can demonstrate that their peak season, project or event operates
    beyond 120 days;
  • Applications supporting permanent residence under any Express Entry programs (e.g. Federal Skilled
    Worker Program, Federal Skilled Trades Program); and
  • Certain seasonal positions.

It is also important to note that employers who are subject to the cap do not have to include the following types of low-wage foreign workers when calculating the cap:

  • LMIA-exempt foreign nationals working under Immigration, Refugees and Citizenship Canada’s International Mobility Program;
  • Foreign nationals who have received a nomination certificate from a Provincial Nomination Program; and
  • Foreign workers working in low-wage positions that are exempt from the cap.

 

Frequently Asked Questions

The following are samples of frequently asked questions that were reproduced from the TFWP Wiki below.  Please note that the information below was obtained through an Access to Information Act request, and may not be up to date.

Question – When considering the impact cap percentage, should an officer ’round’ to the nearest decimal point? Example, established cap is 10% and the impact cap is percentage is 10.1 to 10.5. Does ESDC round down to 10% and accept it, or does it just determine it exceeds the 10% cap?

Answer -When calculating the Cap or the Impact on Cap comparison calculations, the percentage should be recorded up to two decimal points, rounding accordingly.

 

Question – What should be done with LMIA applications where the employer has identified more than one location on the application – i.e. Employer A has applied for 15 workers for 3 different locations on 1 LMIA form? How will the cap be noted to ensure a cap rate is captured for each location on the LMIA form?

Answer – The employer must complete a separate application for each location of work in order for a cap to be established for each location; and each location will also have an individual cap comparison calculation to determine the effect of hiring requested TFWs based on the employer’s current staffing complement at the time of the submission of the application.

 

Question – How does previously confirmed but unfilled LMIAs (i.e. hired but who have not started work) affect the determination of business size and cap calculation?

Answer – Previously confirmed but unfilled LMIAs (that are not expired) are to be included as employees for determining the business size. Pending applications should not be included in these numbers.

 

Question – Should owners count themselves when determining their business size?

Answer – When determining if a business has 10 or more employees company-wide, the count should include all employees on payroll and the vacant position. If the owner has a paid position, they should be included.

 

 

Question – When calculating “Determining the Effect on the Cap”, does the 4 consecutive weeks prior to LMIA submission have to be the 4 weeks prior to the application date or can there be a gap?

Answer – Ideally there should be as small a gap as practically possible for the purposes of this calculation. According to the CAP Directive the employer should provide data from the 4-week period “immediately prior” to the date the application was signed. W-T is interpreting “immediately prior” as allowing up to a 2 week gap between when the application is signed and the four consecutive weeks used by the employer for determining the effect of the CAP. In addition, two weeks may also be allowed between when the application is signed and when the application is received.

 

Question – If the staffing complement listed on Schedule E changes between the date of signature and the date of assessment, how does the officer proceed with assessing the cap?

Answer – The effect calculation will be assessed based on the four-week period used prior to the date of signature, and NOT the date of assessment.


The Return of Incomplete Applications

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.”

Continue reading “The Return of Incomplete Applications”