Labour Market Impact Assessments- Prevailing Wage

In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area.  The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada.  It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.

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Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations

Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

There has been developing jurisprudence on the disjunctive nature of IRPR r. 4(1), including a recent Federal Court certified question on whether IRPR 4(1)(a) is ultra vires the Immigration and Refugee Protection Act (“IRPA“), which provides that:

The objectives of this Act with respect to immigration are to see that families are reunited in Canada.

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Environmental Overview – Chandigarh – 2013

The following is a summary of the Environmental Overview of the immigration functions at the Canadian Consulate in Chandigarh (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2013-2014 planning exercise, and is current as of January 2013.

Areas in blockquote are direct passages from the Environmental Overview.

Environment

The Canadian Consulate in Chandigarh (“CIC Chandigarh”) provides temporary residence processing in northwest India.  It recorded a record number of decisions in 2012.

In partnership with Delhi and the VAC (VFS), prospective non-immigrant applications are created in GCMS overnight for all applications received by VFS in India, before the
applications are physically delivered to mission the following morning. File creation by QRC is not possible due to Indian law prohibiting the international transfer of personal data. As there is no more requirement to scan the 2D barcodes, file creation is completed much more quickly. Only consequence is that Chandigarh appears as the secondary office for all applications received in India (Delhi showing as the principal office); statistical reports and the monitoring of pending applications must take this into consideration.

The elimination of 20 barcode scanning and the overnight creation of prospective applications has freed up some time for the LE3 Registry Clerks, which has been directed to actioning incoming correspondence (no backlog) and also to the scanning of finalized applications into GCMS. Latter takes more time than traditional filing, but gains will be enjoyed downstream; eg. for actioning A TIP requests because the supporting 2013-2014 International Region Integrated Management Plan documents will already be in GCMS and will be accessible to the A TIP section at HQ.

A full-time resource is devoted to responding to the 75-100 e-mail communications that CIC-Dakar receives each day.

Temporary Resident Program

CHADG experienced an overall18% increase in the number of non-immigrant applications in 2012 compared to 2011:45617 vs 38603. TRVs up 19%; Students up 13% and Workers up 31%

Visitors

TRV applicants are rarely interviewed. The vast majority of applications are submitted via the VAC. Applicants are able to submit urgent applications (eg. funeral) in person outside of regular public hours.

PG1 applications account for approximately 15% of total TRV applications. These applications involve more processing as all applicants require medicals and many are furthered, which requires resources to action and monitor. For the first 4-6 months after the introduction of the PG1 category, applicants were given the opportunity to submit additional documents to satisfy PG1 criteria; this prolonged processing and increased the resources required to process such applications.

Religious workers (WX1) also require more processing compared to other TRV applications: involves confirming invitation with Canadian Gurdwara which is given 15 days to respond.

An analysis of CHADG’s TRV processing times as reported by OPMB revealed that it was often cases such as the Religious Worker which tipped CHADG’s processing times to 14 days, whereas 70-75% of cases had actually been processed within 5 days.

The Study Permit approval rate is 64%.  The increase is attributed to the mandatory IELTS requirement of the SPP.

Working closely with ACCC and Scotia bank, we began offering SPP students the ability to purchase a $10,000 GIC to show the ability to cover their first year’s living expenses. There was a strong uptake in this program and over 1 980 GICs were funded for the January 2013 cohort. We are currently working to make this a mandatory requirement for the SPP program and anticipate this will address the issue of fraudulent bank loans which continues to be a problem.

Study Permits

Student applications increased by 13%: 1145 more applications than in 2011. However, only 7 more SPs were issued. This is due to the large number of applicants who reapply after refusal. 21.8% of total student applications in 2012 were repeat applications. This also has the result of increasing CHADG’s refusal rate which increased from 52.7 in 2011 to 57.7 in 2012.

The reapplication rate is most likely driven by the consultants. Fraud continues to be encountered in SP applications, mainly misrepresentation of IEL TS and academic record. For integrity purposes, IELTS is verified 100%.

Work Permits

The number of applications increased by 31% in 2012. The refusal rate is very high: only 21.5% were approved in 2012, same as in 2011. And yet, the worker category has the highest rate of refugee claims, approximately 8% of visas issued.

WP applications are largely for long-haul truck drivers or low-skilled. Approved truck drivers usually have overseas (UAE) experience and have submitted reliable evidence of English language ability. Refused truck drivers have not submitted reliable evidence of English. The low skilled (agricultural workers, janitors, counter attendants) are usually refused for bona fides.

An analysis of refugee claims from TFWs revealed that the claims are often submitted 1-3 years after entry to Canada, are from low-skilled who showed no English. This suggests that they do not have the skills to qualify for PNP or any other avenue for PR.


Communicating by email with CIC

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

——

People wishing to immigrate to Canada have traditionally had to submit paper-based applications, and communicate with Citizenship and Immigration Canada (CIC) by regular mail. CIC, however, is modernizing its processes. An increasing number of applications can now be uploaded to CIC’s online portal, and visa offices regularly communicate with applicants by email.

Indeed, visa officers frequently send important emails to applicants that contain requirements for the applicants to provide specific documentation within strict deadlines. Unsurprisingly, many emails from CIC to applicants appear to go missing, and both CIC and the Federal Court have had to determine what procedures are fair when applicants miss deadlines contained in emails that they allege they never received.

You get to decide how to communicate

You, the applicant, has the ultimate choice of when to communicate by email with CIC. CIC will initiate email communication with you if you submit a completed application form, which includes an email address, if you provide a signed Use of Representative form that includes an email address, or if you initiate email communication with CIC. At any point, however, you may request that CIC communicate only with you by regular mail.

Missed emails

If you miss a deadline and claim that you never received CIC’s email, then you or your representative is responsible for emails that CIC can prove were sent even if they were not received.

When a communication is correctly sent by a visa officer to an address (including email) that has been provided by an applicant, and where there has been no indication that the communication may have failed (for example, if CIC receives a “message failed” bounce-back email), then the risk of non-delivery rests with the applicant.

In other words, if the visa officer can prove that the email was sent to the correct address, then it does not matter if the email was sent to spam, junk or mysteriously vanished in your server. You are responsible for the missed deadline.

Risk mitigation tactics

Generally speaking, email communication with CIC is preferable to regular mail as it is faster. However, as the risk of non-receipt lies with you, you should have systems in place to ensure that emails do not go astray.

There are various steps that you should take to try to prevent the loss of emails from CIC. First, carefully review your junk mail filters and any possible spam filters or firewalls that may contain emails from CIC. Once one email from CIC has been received, it is important if possible to mark CIC as being a preferred sender so that future emails do not wind up in spam or junk folders.

It is also important to constantly update CIC with any changes in contact information. For example, if you change your email address, then tell CIC immediately.

A note on reconsideration requests

It is inevitable that an individual can take extensive precautions, yet emails from CIC will still go missing. CIC is generally very flexible about sending follow-up reminders, however, this does vary from officer to officer. Hence, applicants whose applications are refused because of a deadline contained in an email that they never received should immediately contact CIC, provide the required documentation, and ask for reconsideration.

Indeed, the Federal Court has stated that it in such circumstances it would be highly unfair and unjust for CIC to simply close a file, require that an individual pay another processing fee, and suffer unnecessary delays simply because of a missed email.


The Super Visa

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.

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.

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Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention

On October 30, 2014, the Supreme Court of Canada (the “SCC“) rendered its decision in Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“).  This was the first time to my knowledge that the SCC has addressed Canada’s interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“), incorporated into s. 98 of the Immigration and Refugee Protection Act (“IRPA“) (other than in obiter).

Febles provides an opportune time to both summarize the principles articulated in it, as well as other significant Federal Court and Federal Court of Appeal (the “FCA“) cases involving Article 1F(b) of the 1951 Refugee Protection.

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Canada Lists Designated Countries of Origin (Updated October 24, 2014)

The Government of Canada has published a list of the first Designated Countries of Origin (“DCO“).

The initial list of DCOs covers 27 countries, 25 of which are in the European Union (edit: see below for a list of additional countries that have been added):

  • Austria
  • Belgium
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Ireland
  • Italy
  • Latvia
  • Lithuania
  • Luxembourg
  • Malta
  • Netherlands
  • Poland
  • Portugal
  • Slovak Republic
  • Slovenia
  • Spain
  • Sweden
  • United Kingdom
  • United States of America

In September, 2010, I predicted ten countries that I thought would likely be designated.  Nine of them are on the above list, I assume Hong Kong will be added in the near future.

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Service Canada Transition Plans

On June 23, 2014, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”).  One of the changes was:

Introduction of Transition Plans for High-Wage Positions

Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada.  An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately.

Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which:

  • require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer);
  • have a limited duration of between:
    • 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or
    • more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based business consultant, specialized construction engineer).

As part of the Transition Plan, employers are required to conduct the all of the following:

  • General Requirements – Employers must conduct at least 3 distinct activities that are designed to recruit, retain, and train Canadian citizens and permanent residents;
  • Underrepresented Groups requirement – Employers must conduct at least 1 distinct activity to work with an organization serving underrepresented groups (Aboriginal peoples, youth, immigrants and persons with disabilities) to identify potential candidates for recruitment or training. This activity is additional to that conducted for the minimum recruitment and advertisement requirement. If the underrepresented group is the same, the activities must be different. If the activities are for the same group, they must be substantially different.
  • Permanent Resident Requirement – Employers must conduct at least 1 distinct activity that supports a TFW’s permanent transition to Canada. This activity could include assisting with language training.

Employers will be required to report on the results of the commitments they have made in their Transition Plan if they are selected for an inspection, or choose to re-apply for a subsequent LMIA for the same occupation and work location.

In today’s post, I wish to elaborate on the above.

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