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. Continue reading →
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.
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.
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 orhold 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.
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:
becomes the subject of a declaration that they were part of an irregular arrival to Canada;
is issued a Temporary Resident Permit to overcome an inadmissibility to Canada;
becomes the subject of an admissibility report;
becomes the subject of a removal order;
withdraws an application to enter Canada at a port of entry;
is refused a temporary resident visa becomes it is determined that they are unlikely to leave Canada by the end of their authorized stay;
is refused a work permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
is refused a study permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
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.
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:
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.
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.”
Parents and grandparents of Canadian citizens and permanent residents can apply for two types of Temporary Resident Visas to visit their relatives in Canada. The first is a standard, multiple-entry visa. The second is what is known as a Super Visa.
A normal Temporary Resident Visa generally is a multiple entry-visa valid for the duration of an applicant’s passport, or 10 years, whichever is shorter. Unless the Canada Border Services Agency authorizes indicates, it allows applicants to stay in Canada for up to six months without having to apply to extend their temporary resident status.
A Super Visa is also valid for up to 10 years, or the duration of the applicant’s passport, whichever is shorter. It allows parents and grandparents to stay in Canada for up to two years without having to renew their status. Parents and grandparents who are from visa-exempt countries can also apply for Super Visas in order to receive Letters of Introduction that will allow them to stay in Canada for up to two years without having to renew their status. It is important to note that the two year entry only applies to the initial stay.
A parents or grandparent is eligible for a Super Visa if the parent or grandparent has:
provided proof of the parent or grandparent relationship to the Canadian citizen or permanent resident;
undergone a medical examination and is admissible to Canada on health grounds;
provided satisfactory evidence of private medical insurance from a Canadian insurance company, valid for a minimum period of one year from the date of entry which:
covers the applicant for health care, hospitalization and repatriation;
provides a minimum of $100,000 coverage; and
is valid for each entry to Canada and available for review by the examining officer upon request; and
provided a written and signed promise of financial support, e.g. a letter of invitation, from the host child or grandchild for the entire duration the parent or grandparent intends to stay in Canada. The letter must be accompanied by evidence of their means of providing such support.
The Super Visa is meant to be a facilitate program, and if an applicant meets the Super Visa eligibility criteria, and is not otherwise inadmissible to Canada, Citizenship and Immigration Canada will normally issue the visa.
Please note that on December 13, 2016, the Government of Canada abolished the 4 year cap on foreign workers.
On April 1, 2011, Citizenship and Immigration Canada introduced a four-year cap on the maximum allowable cumulative duration that a Temporary Foreign Worker (“TFW”) can work in Canada. Generally, once a foreign national has accumulated four years of work, he or she will be ineligible to work in Canada again until a period of four years has elapsed.
What Do Employers Need to Know
Before hiring a foreign worker, an employer should know the total time that the foreign worker has worked in Canada. It would be unfortunate and costly to offer someone a job only to then discover that the person can either only work for a limited period, or not at all.
Since April 1, 2011, a TFW has accumulated three years of work in Canada, and is now applying for a two-year work permit in an occupation that is not listed in the ‘exceptions’. The work permit would only be issued for one year.
All work performed in Canada since April 1, 2011 — regardless of whether or not it was authorized by a work permit or exempt under Regulation 186 — counts towards a foreign worker’s four-year total. This includes work done as a volunteer, as a self-employed individual, work in all occupations falling under all categories in the National Occupation Code (“NOC”) list, work done while under implied status, and work done while on an open work permit, including post-graduate work permits. The only exception is that any work performed during a period in which the foreign national was authorized to study on a full-time basis in Canada is not included in cumulative duration totals.
The cap does not only apply to people looking to start a new job or change employers. It also appliesto people who are looking to extend their contracts.
Although their time in Canada will still count towards the four-year cap, numerous types of foreign workers will be able to work beyond four years.
The four-year cumulative duration will not apply to TFWs entering under one of the following occupations:
Workers seeking to work in NOC 0 or A occupations (important: NOC B is not exempted;
Workers who have applied for permanent residence and have received provisional approval;
Workers who are employed in Canada under an international agreement, such as NAFTA, the Seasonal Agricultural Worker Program, humanitarian and self-support based work permits, and work permits under Regulation 205; and
Workers who are exempt from holding a work permit under Regulation 186.
Periods not worked which occurred after April 1, 2011, and during the validity period of any work authorizations issued after April 1, 2011, may be factored into the calculation of the accumulated total. However, only gaps in employment of one consecutive month or more will be considered.
When the Clock ReStarts
The cap will start once four years are reached. It does not matter if there is a significant gap during the foreign worker’s four years as a TFW. As well, the foreign national has to wait for four consecutive years before he or she is allowed to become a foreign worker again.
Foreign national works for three years, leaves Canada for three years, and applies for a two year work permit. CIC will issue a one year work permit, and the foreign national will have to wait another four years before the clocks resets and he or she can apply again. If the foreign national had waited another year outside Canada, then he could have worked another full four years in Canada.
A foreign national works for three years and 11 months on a work permit. She then stays outside of Canada for three years, and then enters Canada to work for one months. The foreign national leaves Canada and is now not eligible for a work permit for another four years.
Citizenship and Immigration Canada has published the following chart which may be useful to individuals trying to decide if the cap applies to them.
On December 1, 2016, the Government of Canada lifted the requirement that Mexican nationals obtain a temporary resident visa (a “TRV”) prior to travelling to Canada.
As with all TRV exempt travellers, excluding Americans, Mexican nationals are still required to obtain an Electronic Travel Authorisation (an “ETA”) prior to boarding aircraft to travel to Canada. The Government of Canada has also committed to gradually expanding eTA eligibility in 2017 to citizens of Bulgaria, Romania, and Brazil.
Electronic Travel Authorisation The eTA is a new electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers apply online for an eTA by providing basic biographical, passport and personal information, and includes questions about their health, criminal history, and travel history.
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. Typical reasons for a further review include a previous denial of admission to Canada, a criminal record, or a pending permanent residence application.
The cost to apply for an eTA is $7.00. Applicants must have a valid passport, credit card, and e-mail address.
An eTA is only required for travel to Canada by air. It is not required for travel to Canada by land or sea.
Mexican citizens who already have a valid TRV do not need to apply for an eTA while their TRV is valid.
Future Visa Lifting for Brazil, Romania, and Bulgaria
The Government of Canada has also committed to expanding eTA eligibility to travellers from Brazil, Bulgaria and Romania.
Starting on May 1, 2017, Brazillian, Romanian, and Bulgarian citizens who have held a Canadian temporary resident visa at any time during the last 10 years, or who, at the time of application, hold a valid nonimmigrant visa from the United States, will no longer need a TRV to visit Canada, and can instead apply for an eTA.
Starting December 1, 2017, the eTA eligibility will be expanded to include all Romanian and Bulgarian citizens.
More information about the lifting of the visa requirement for Mexican citizens, including the specific regulatory changes and the Government of Canada’s cost-benefit analysis, can be found here.
More information about the future lifting of the visa requirement for Brazilian, Bulgarian, and Romanian citizens, including the specific regulatory changes and the Government of Canada’s cost-benefit analysis, can be found here.
More information about how to apply for an eTA can be found here.
Please contact us if you have any questions or concerns about these changes.