Judicial Reviews of BC PNP Decisions

As of writing, there have now been two published judicial reviews of British Columbia Provincial Nomination Program (“BC PNP“) refusals.  In each case the judicial review was dismissed.

While both cases were very fact specific, some of the key passages were as follows.

Chaudan v. British Columbia (Ministry of Jobs, Tourism and Skills Training), 2016 BCSC 2142

 

This case essentially stands for the proposition that officers can look beyond an offer of employment to determine whether a proposed job offer meets BC PNP program requirements. Justice Bowden wrote:

In determining whether an applicant met the criterion of PNP, if a decision maker relied only upon a future offer of employment, that might well be unreasonable. Not only would that ignore the factor of past employment over a nine month period but also an offer of employment in the future is not an assurance that the criterion will be met.

Raturi v. British Columbia, 2017 BCSC 9

 

In this case Madam Justice E.A. Arnold-Bailey provided a useful summary of existing jurisprudence on provincial nomination judicial reviews. She wrote:

Moving from more general statements of principle to specific cases more closely aligned to the present case, I note that among the cases referred to by the Respondent are Jiang and Baba. Both these cases deal with provincial nominee programs in other provinces, Manitoba and New Brunswick respectively. In neither case was the denied applicant successful.

Jiang was an appeal from an order of the application judge refusing to quash a decision of the Manitoba Provincial Nominee Program for Business (the “Program”). The appellant, who applied under the economic class pursuant to the business stream, argued that the application judge erred in her analysis of the requirements of procedural fairness and in her conclusion that the Program’s decision was reasonable.

The appellant raised three issues respecting procedural fairness: i) the reconsideration process should have followed the same steps as required for the application process, ii) the lack of appeal in the application process, and iii) the reasons for refusal were inadequate. With respect to the first ground, the Court of Appeal found that there was no provision in the Program for the specific request of reconsideration but rather only a process for re-applying and this did not raise a legitimate expectation that the reconsideration process would be the same as the initial application process. While a decision-maker who affords an exceptional procedural step must still act fairly in regard to that step, the reconsideration process here did not require the very same process as the initial application. By providing the appellant an opportunity to submit additional documentation and for a second interview, the Program conducted the reconsideration in a manner that was fair.

On the second ground, the Court of Appeal found that the Program did not breach the requirements of procedural fairness because it does not provide for an appeal. The Program has the discretion to determine its own procedures, and the fact that the similar skilled workers’ stream provided for an appeal did not mean that the business stream had breached procedural fairness.

Finally, the Court of Appeal found that the reasons were adequate in the circumstances. The initial reasons set out concerns relating to credibility as well as retention (whether the appellant would remain in Manitoba); and while some of these were addressed by the new information provided by the appellant, not all of them were. The reasons for the second decision provided an adequate basis for the application judge to engage in a meaningful judicial review.

The appellant also argued it was unreasonable to refuse the application on reconsideration, and that the application judge did not correctly determine that the Program’s decision was reasonable. While the appellant may have addressed the identified concerns upon reconsideration, the application judge found that this did not automatically entitle her to nomination. The fact that the Program was not satisfied that the appellant was likely to continue to reside in Manitoba was one of the possible, reasonable outcomes in the case. The Court of Appeal found that given the inconsistency in her application and retention concerns, the decision made under the Program to deny her application was within the ambit of possible reasonable outcomes. Consequently, the Court of Appeal found that the application judge was correct in her decision in finding the decision was reasonable.

In Baba, the applicant sought judicial review of a decision of the respondent, asking the Court to quash the decision refusing his application for a provincial nominee certificate as a business applicant under the New Brunswick Provincial Nominee Program.

The applicant argued that the respondent failed in its duty of fairness by relying on the applicant’s source of funds as a criterion for assessing his application. The chambers judge also undertook a review of the duty to give reasons and the reasonableness of the respondent’s decision.

The judge found that while the decision was important to the applicant in pursuing residency, even if the applicant satisfied all the criteria there was no guarantee that he would be issued a nominee certificate. The decision-making process was governed by a clear set of criteria and procedure, including a form stating an applicant’s source of funds was a relevant consideration, which was communicated to the applicant. The judge found that despite being given several opportunities to provide required documentation the applicant failed to do so. The judge rejected the applicant’s argument that the respondent acted unfairly by relying on the applicant’s failure to identify his source of funds as a reason for rejecting his application.

With respect to the duty to give reasons, the judge found the applicant was well aware of the criteria and the process and the deficiency in his supporting documentation. While the notification letter merely stated that the applicant did not meet the eligibility criteria, in the totality of the circumstances, the judge found that the applicant understood the reason for refusal of his application.

The judge also found that the respondent’s discretionary decision to deny the nomination was within the realm of reasonable, possible outcomes. As the core of the Program was the verification of the applicant’s ability to contribute to the economic development of the province, it was reasonable for the respondent to probe and verify the applicant’s financial integrity. Both the amount and source of the applicant’s funds were critical to the respondent’s decision-making process. The applicant failed to satisfy the respondent’s requests for further information, and as a result the respondent was not satisfied as to the applicant’s financial integrity.

In addition, there is now the BC decision of Chaudan from November 2016, which was a judicial review of a decision of a program advisor refusing the petitioner’s application for nomination under the BC PNP. The program advisor found the applicant’s income was below the threshold amount for a single person living in Metropolitan Vancouver. The petitioner requested reconsideration and the program manager upheld the program advisor’s reason for refusal. The petitioner applied to the Court for an order setting aside the program’s advisor decision. The petitioner argued that the program advisor’s decision was unreasonable because it treated the petitioner’s past wages as determinative. The respondent argued that past work experience falls within a range of reasonable and logical considerations in determining whether to grant a nomination. The judge found that while the ultimate criterion of the PNP is forward looking, the factors to be considered by the decision-makers include past and future employment and the program advisor considered both of those factors. The decision was found to be one that could reasonably have been made.

Madam Justice E.A. Arnold-Bailey in Raturi made several statements which will guide and impact future judicial reviews, including that:

  • A decision-maker is not obliged “to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” as long as the reviewing court may understand from the reasons why the decision was made and the reasons permit the court to determine whether its conclusion is within the range of acceptable outcomes.
  • It is not for the courts to provide direction as to the extent of independent labour market research that the BC PNP ought to carry out in a particular case.
  • The BC PNP websites can trump policy manuals.


BC PNP September 1 Changes

On September 1, 2016, the British Columbia Provincial Nomination Program (“BC PNP“) published changes to its program guide.

Here is a summary of the changes.

Topic

Original

Change

Representatives If you are invited to apply and your employer is using a representative, your employer must also complete their own use of representative form, even if your employer is appointing the same representative. If you are invited to apply and you are using a representative, your employer must also complete their own use of representative form, even if your employer is appointing the same representative.
Refunds If invited to apply, you must submit the $550 application fee with your online application before your application will be processed. Incomplete applications will not be processed and fees may not be refunded. If invited to apply, you must submit the $550 application fee with your online application before your application will be processed. Incomplete applications will not be approved, and application fees will only be refunded if you withdraw your application before the BC PNP begins to assess it. You may contact the BC PNP at PNPinfo@gov.bc.ca to withdraw your application and find out if you are eligible for a refund. Please provide your full name, your date of birth, and your BC PNP application file number in your email.
Minimum Incomes Threshold 2014 Data 2015 Data

All thresholds have an average increase of $100-600

Paid Co-Op Counting as Experience No mention. Experience obtained in paid co-op work terms is eligible if it meets the following criteria:

  • paid co-op work term must be full-time (minimum 30 hours per week)
  • paid co-op experience must be at a NOC skill level equal to or greater than the NOC code of the B.C. job offer. At the time of application, you must be able to satisfactorily demonstrate how this work experience is directly related.

Experience in a lower skill level NOC will not be considered as directly related.

 

Unpaid co-op work terms are not eligible.

Deductions Your employer cannot make any deductions from your pay (or require you to pay any fees) for recruitment or retention, including fees related to immigration. Your employer cannot make any deductions from your pay (or require you to pay any fees) for recruitment or retention, or any fee that is normally paid by the employer. For more information, please visit Employment Standards Branch’s website.
Health Care Professionals Specialist physician not on the list of eligible occupations. Specialist physician on the list of occupations.
Midwives Must be registered with the College of Midwives of British Columbia. Must be registered, or eligible to be registered, with the College of Midwives of British Columbia.
CIP Codes Not mentioned. Added to the list of eligible degrees.

 

The BC PNP has the sole authority to determine the appropriate CIP for your program of study.

North East Pilot Project Not included in guide. You may be eligible for this category if you are currently working in the Northeast Development Region of the province in any entry level or semi-skilled occupation, other than live-in caregivers, listed as skill level C or D in the National Occupational Classification. For more information about the NOC and how it works, please visit this section.
Gaps in ELSS Employment You must maintain full-time employment with your employer in B.C. throughout both the BC PNP and the permanent residence processes. You must maintain full-time employment with your employer in B.C. throughout both the BC PNP and the permanent residence processes. Registrants who are no longer authorized to work for the supporting B.C. employer at the time they receive an invitation to apply, and who maintain legal status in Canada (e.g. as a visitor) or leave Canada, may submit an application provided they meet the following:

1. the requirement for 9 months of full-time employment on a valid work permit in B.C. was met at the time of current registration

AND

2. the job offer remains valid throughout the current registration and application process.

Recruitment (Working in Position) Met if you have a valid work permit from IRCC and are currently working for the supporting B.C. employer in the occupation identified in the job offer.

 

Met if you have a valid work permit from IRCC and are currently working full-time (30 hours per week) for the supporting B.C. employer in the occupation identified in the job offer.
Recruitment (Not Working in Position) NOC B position advertisements must include

company operating name

 job title and duties

 rate of pay

 location of work (local area, city or town)

 contact information

 skills requirements for the job including:

 education and/or qualifications

 work experience

 

NOC A and B position advertisements must include:

company operating name

 job title and duties

 rate of pay

 location of work (local area, city or town)

 contact information

 skills requirements for the job including:

 education and/or qualifications

 work experience

 

How Registration Works Once you submit your registration, you will receive your registration score and will be entered into a selection pool for the category in which you have registered. You will a receive confirmation of registration email once you successfully submit your registration. Your registration will remain in the selection pool for a maximum of twelve months from the date of submission. After you complete your registration, you will receive your registration score and will be entered into a selection pool for the category in which you have registered. Your registration is considered successfully submitted once you receive a confirmation of registration email that includes your BC PNP registration number. Your registration will remain in the selection pool for a maximum of twelve months from the date of submission.
Confirmation E-mails   After you complete your registration, please ensure that you have received a confirmation email that includes your BC PNP registration number. If you do not receive this email within 24 hours, please refer to the BC PNP Skills Immigration and Express Entry BC Technical Guide for further instructions.
Changes Post Registration  

if you need to make changes to the information that you have entered in your registration, you will need to withdraw your registration and submit a new registration with the updated information. This will be done using your existing profile

 

 it is important to make sure your registration information is up-to-date, as differences between the information in your registration and your application may lead to refusal of your BC PNP application

 

if you need to make changes to the information that you have entered in your registration other than the information captured in your profile, you will need to withdraw your registration and submit a new registration with the updated information. This will be done using your existing profile. Please carefully review the program and category requirements before completing your registration · it is important to make sure your profile and registration information is up-to-date, as differences between the information in your registration and your application may lead to refusal of your BC PNP application. Please note that if, at the time your application is assessed, your points total is determined to be lower than the minimum draw score at the time you were invited to apply, your application will be refused. For more information, please see the ‘Invitations to Apply’ section of this guide
Refusals The BC PNP may refuse your application if:

 the information in your registration is different from what you submitted in your application

 you were not eligible to receive the points assigned to you at the time of registration

 your application does not meet applicable category requirements in effect at the time of your application

 

The BC PNP may refuse your application if: · you do not meet the relevant program or category requirements outlined in this guide · your registration information has changed such that your total registration score has decreased below the minimum draw score at the time you were invited to apply
Bonus Eligibility for Working for Current Employer Current employment for the B.C. employer in the occupation identified in the BC PNP registration. You can receive this bonus only if you are currently employed in the same occupation that you have been offered. You are not eligible for this bonus if your job offer is a promotion from your current occupation with the employer.

 

Current employment for the B.C. employer in the occupation identified in the BC PNP registration. You can receive this bonus only if you are currently employed full-time (30 hours per week or more) in the same occupation (ie: same NOC code) that you have been offered in the BC PNP registration. You are not eligible for this bonus if the occupation identified in the job offer is a promotion from your current occupation with the employer.
Directly Related Work Experience You will receive points based on your years of full time (minimum of 30 hours per week) work experience, as it directly relates to the job you have been offered in B.C. This experience may be from work performed within Canada or abroad.

 

For the registration process, the BC PNP defines directly related work experience as full time paid employment that is classified under the same National Occupation Classification (NOC) code as the B.C. job offer that you have accepted. Experience in a related occupation at a NOC skill level equal to or greater than the NOC code of the B.C. job offer may also be included if, at the time of application, you can satisfactorily demonstrate how this work experience is directly related. Experience if a lower skill level NOC will not be considered as directly related.

You will receive points based on your years of full-time (minimum of 30 hours per week) work experience, as it directly relates to the job you have been offered in B.C. This experience may be from work performed within Canada or abroad. This directly related work experience must have been obtained within the last 10 years.

 

For the registration process, the BC PNP defines directly related work experience as full-time paid employment that is classified under the same NOC code as the B.C. job offer that you have accepted. Experience in a related occupation at a NOC skill level equal to or greater than the NOC code of the B.C. job offer may also be included if you can satisfactorily demonstrate how this work experience is directly related to the job duties outlined in the B.C. job offer. This information will be required at the time of application. Experience in a lower skill level NOC will not be considered as directly related.

 

• you have completed 8 years of full-time employment within the last 10 years in your home country as a registered nurse (NOC 3012). Your current B.C. job offer is for a licensed practical nurse (NOC 3233). Because the previous work experience is directly related and at an equal NOC level, it can be included. • you have 3.5 years of full-time employment within the last 10 years in your home country as a senior manager in the financial service field (NOC 0013). Your current B.C. job offer is for financial sales representative (NOC 6235). You can enter this experience because it is directly related and at a higher NOC level. • you have over 10 years of full-time employment within the last 10 years in your home country as a civil engineer (NOC 2131). Your current B.C. job offer is for a food service supervisor (NOC 6311). In this scenario your previous work experience would not be eligible because it is not directly related even though it was at a higher NOC.

Education Points for education will only be awarded for your highest level of education indicated in the registration. For example, if you have a bachelor’s and a master’s degree, you will only be awarded points for your master’s degree. You must have successfully completed your education in order to claim these points. Partial completion will not be recognized. Duration of study must exceed 6 months. This six month requirement is separate from category specific requirements. Points for education will only be awarded for your highest level of education indicated in the registration. For example, if you have a bachelor’s and a master’s degree, you will only be awarded points for your master’s degree. You must have successfully completed your education in order to claim these points. Partial completion will not be recognized.

 

And more changes.

IRCC Refusals   Once IRCC has concluded your application for permanent residence and you have become a permanent resident, or once your application for permanent residence has been refused by IRCC, your BC PNP file will be considered closed and no additional BC PNP support will be provided.
Request to Review The BC PNP will only review a decision where the applicant demonstrates that the decision was unreasonable or procedurally unfair on the basis of the program criteria and the evidence before the program advisor. If you have questions about the reasons for a refusal decision or wish to request a review of the decision, you may contact the BC PNP through the inbox: pnpinfo@gov.bc.ca. The purpose of a review is to determine whether the original decision was based on a fair process, and was within the range of decisions that could be reasonably supported by the evidence before the decision maker on the basis of the program criteria at the time of the decision. A review is not a chance to submit new evidence or re-argue the evidence submitted in your application. Being unsatisfied with the final decision or a component of the decision is not sufficient grounds to vary or reverse a decision.

A complete request for review package must be submitted within 30 calendar days of the date provided on the decision notice if the person is a resident in Canada, or 60 calendar days of the date of the decision notice if the person is not a resident in Canada. For the purposes of a review, residence in Canada is determined by the applicant’s residential address indicated on the request for review form.


The BC PNP Has Re-Opened with all New Programs

On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP“) re-launched with new program requirements and processes.  The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream.

The most significant changes to the BC PNP include:

  • Introducing an online application process with an electronic payment system;
  • Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program;
  • Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap);  and
  • Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test.

Skills Immigration and Express Entry BC

The Skills Immigration is divided into the following substreams:

  • Skilled Worker
  • Health Care Professionals
  • International Graduates
  • International Post-Graduates
  • Entry Level and Semi-Skilled
  • North East Pilot Project

As well, the Express Entry BC stream is divided into the following substreams:

  • Skilled Worker
  • Health Care Professional
  • International Graduate
  • International Post-Graduate

Most of the requirements to the Skills Immigration streams and sub-streams remain largely unchanged. However, in addition to requiring that applicants apply online, the following are new program requirements:

  • In the Skilled Worker substream the BC PNP has clarified that “several years of directly related work experience” means two or more years;
  • The “Market Rate” for a position is based on an applicant’s employment and educational experience.  It is unclear whether this mean that the Low Rate on the Working in Canada website remains the threshold; and
  • Applicants with job offers in NOC B occupations must demonstrate English language proficiency at Canadian Language Benchmark (“CLB”) level 4.

The BC PNP will only be accepting 200 new Skills immigrant applications in 2015.  This limit does not apply to Express Entry BC, the Health Care Professional stream, or the Northeast Pilot Project.   New applications from individuals residing in Metro Vancouver are restricted to employment offers above the British Columbia median wage of $22.00 per hour.

Entrepreneur Immigration Stream

While the Skills Immigration Stream remains largely unchanged, the Entrepreneur Immigration Stream has been completely overhauled.

The Entrepreneur Immigration Stream is an expression of interest program similar to CIC’s Express Entry.  Applicants must register with the Entrepreneur Immigration Registration (“EIR”), and registrations will be ranked using a points system.  The highest scoring individuals in the EIR will be invited to apply to the Entrepreneur Immigration stream.  The BC PNP anticipates processing Entrepreneur Immigration Stream applications within 3 months.   Successful individuals will be required to enter into a Performance Agreement with the BC PNP stipulating time-frames for the completion of their business commitments.  Once the entrepreneur satisfies the terms of the Performance Agreement, the BC PNP will issue the individual a nomination certificate which can be used to apply for permanent residency.

It is important to note that the BC PNP will only accept a maximum of 200 registrations per month.

To submit an EIR, a prospective individual must meet the following requirements:

  • Be lawfully admitted in the country that they reside;
  • Not be inadmissible to Canada or have an unresolved refugee claim in Canada;
  • Have a personal net worth of $600,000.00;
  • Have either:
    • a minimum of more than three years experience as an active business owner-manager;
    • more than four years of experience as a senior manager; or
    • a combination of at least one year of experience as an active business owner-manager and at least two years of experience as a senior manager;
  • Have a minimum of two-years of post-secondary education or experience as an active business owner-manager with 100% ownership of the business for at least three of the past five years;

When registering for the BC PNP Entrepreneur Immigrant stream applicants will also need to submit short business concepts that will have to demonstrate that their proposed business meets several requirements, including:

  • that the business be an eligible business established either through starting a new business, purchasing an existing business, partnering with an existing business, or partnering with a local or foreign entrepreneur to establish a new business;
  • that the individual make an eligible personal investment of at least $200,000 in the proposed business (or $400,000 if a Key Staff member is proposed); and
  • that the business will create at least one permanent new full-time equivalent job for a Canadian citizen or permanent resident in the proposed business.

The BC PNP has introduced very stringent and complicated requirements regarding what constitutes an eligible personal investment that are extremely circumstance specific and beyond the scope of this update.

Scoring in the Entrepreneur Immigration pool is as follows:

Scoring Sections Points
    1. Experience 24
    2. Net Worth 12
    3. Personal Investment 30
    4. Jobs 36
    5. Adaptability 18
    6. Business Concept 80
Total Points Available 200

Experience points are calculated as follows:

Experience Total Duration Points
Business Owner-Manager Experience Less than 12 months 0
12 to 24 months 4
25 to 36 months 6
37 to 48 months 12
49 to 60 months 15
61 months or more 20
Senior Manager Work Experience Less than 24 months 0
24 to 48 months 4
49 to 60 months 8
61 months or more 12
The maximum score available for this section is 24.
The minimum points requirement is 8.
Individuals cannot get points for both Business Owner-Manager Experience and Senior Manager Work Experience, but rather have to choose.

Net worth points are scored as follows:

Personal Net Worth Points
Total Current Assets (cash and liquid funds) Less than $50,000 0
$50,000 to $199,999 1
$200,000 to $399,999 3
More than $400,000 6
Total Personal Net Worth Less than $600,000 0
$600,000 to $799,999 1
$800,000 to $1,999,999 3
$200,000,000 to $4,999,999 5
$5,000,000 or more 6
The maximum score available for this section is 12
The minimum points requirement for personal net worth is 1.

Eligible personal investment will be scored as follows:

Eligible Personal Investment Points
Less than $200,000 0
$200,000 to $399,999 6
$400,000 to $999,999 20
$1,000,000 or more 30
Applicants must score at least 6 points, or 20 points if they are proposing key staff, to meet the minimum requirement for this section.
The BC PNP will not consider as eligible any investment made prior to the date that an individual is invited to apply for nomination.

Jobs will be scored as follows:

Number of Full-time Equivalent  Job Positions Created and Maintained Points
Less than 1 0
1 2
2 6
3-4 12
5-6 20
7-8 28
9-10 32
11 or more 36
The maximum score available for this section is 36.
The applicant must score at least 2 points, or 12 if there is key staff.
The jobs created and maintained must pay wages that are consistent with the skill level of the position created

Adaptability will be scored as follows:

Factor Points
English language proficiency None or minimal, similar to CLB 3 and below 0
Basic understanding, similar to CLB  4 2
Intermediate and advanced, similar to CLB 5 and above 4
Education level Less than two years of post-secondary education 0
Two years or more of post-secondary education 3
Age Less than 20 0
21-39 3
40-60 4
61-64 2
65 or older 0
Business Exploratory Visits to British Columbia No 0
Yes, 1 or more years ago 1
Yes, less than 1 year ago 2
Canadian work experience, business experience, or studies from within Canada for at least 12 months No 0
Yes 5

The scoring for Business Concepts remains unclear.  12 points out of a possible 80 are based on the location of the proposed business as follows:

Population of BC Regional District Points
More than 500,000 people 0
200,000 to 500,000 1 point
100,00 to 200,000 3 points
70,000 to 100,000 6 points
60,000 to 70,000 8 points
35,000 to 60,000 10 points
Less than 35,000 people 12 points

The remaining 68 points are based on a variety of factors whose exact point allocation has not been released, and will be based on a 1,000 – 1,500 word business concept that EIR registrants must submit.  The points will be based on commercial viability, transferability of skills, and economic benefits.  Applicants must score a minimum of 32 points, based on what at this point appears to be an unpublished checklist.

As noted above, the highest ranking applicants in the EIR will be invited to apply for nomination. Those applicants that are invited to apply will need to engage a qualified supplier to review their personal net worth and accumulation funds as part of the nomination process.  Once the nomination is approved, the applicant and the BC PNP will enter into a Performance Agreement, and the entrepreneur can start their business.  The BC PNP will support the entrepreneur in a work permit application to facilitate this.

Once the entrepreneur completes the terms of the Performance Agreement, he/she can submit a Final Report to the BC PNP to be issued a nomination certificate.  The entrepreneur must demonstrate to the BC PNP that they:

  • are actively managing a business (i.e., be accountable for the day-to-day operations of the business) in British Columbia;
  • reside within 100 kilometers of the business;
  • have been physically present in British Columbia for at least 75% of the time that the individual was on a work permit; and
  • have complied with any other terms of their Performance Agreement.

The nomination certificate can then be used to support a permanent residency application.

[UPDATE – MARCH 21, 2016]

The BC PNP has published useful statistics on application intake in the new BC PNP Entrepreneur stream.  The results can be found here:

 


The BC PNP Skills Immigration Programs in 2016

On January 27, 2016, the British Columbia Provincial Nomination Program (“BC PNP“) re-opened its Skills Immigration and Express Entry BC programs, and introduced the Skills Immigration Registration System.

The Skills Immigration Registration System is an expression of interest system to manage BC PNP Skills Immigration application intake.  It is similar to Immigration, Refugees and Citizenship Canada’s (“IRCC”, previously “CIC”) Express Entry system, as only registrants who are invited by the BC PNP to submit full nomination applications can actually apply for nomination certificates.  Simply meeting program requirements does not guarantee an Invitation to Apply for nomination.

The BC PNP determined that an application intake management system would be necessary in 2016 as the BC PNP had to frequently suspend intake to its programs in 2015.  On March 31, 2015, the BC PNP announced a 90-day pause on intake to its Skills Immigration programs. On July 2, 2015, the BC PNP re-opened its Skills Immigration program to limited intake, and the programs were full within 36 hours.  On September 1, 2015, the BC PNP suspended intake to its Express Entry BC programs, and, with the limited exception of a 50 spot opening in November, the BC PNP has not accepted applications to its programs since.

While the Skills Immigration Registration System is designed to prevent similar program closures in 2016, it does mean that many individuals who qualify for BC PNP Skills Immigration and Express Entry BC programs will be unable to apply this year.

The Skills Immigration Registration System is open, and is now accepting registrants. Potential applicants must qualify for a BC PNP Skills Immigration program, or an Express Entry BC program, at both the time of registration and application.

Skills Immigration and Express Entry BC

The BC PNP Skills Immigration stream contains the following programs:

  • Skilled Workers
  • Health Care Professionals
  • International Graduates
  • International Post-Graduates
  • Entry Level and Semi-Skilled
  • North East Pilot Project

While the detailed requirements of each program are beyond the scope of this newsletter, a brief summary of each program, including any significant changes from 2015, are as follows.

The Skilled Workers program is for individuals who have an offer of indeterminate, full-time employment with an eligible employer in British Columbia.  The position must be in an occupation classified under National Occupational Classification (“NOC”) Skill Level 0, A, or B. Applicants must have a minimum of two years of directly related full-time (or full-time equivalent) work experience in the occupation for which they are offered a job.

The BC PNP is now defining “directly related work experience” as paid employment that is classified under the same NOC code as the British Columbia job offer.  Experience in a related occupation at a NOC Skill Level equal to or greater than the NOC code of the B.C. job offer may be considered “directly related” where there is a reasonable explanation, however, experience in a lower skill level NOC occupation will not be. It is important to note that this new definition of “directly related work experience” may negatively impact people who have been recently promoted.

The Health Care Professionals program is for individuals have an offer of indeterminate, full-time employment with a public health authority in an occupation that is an a prescribed list of occupations related to health care, including physicians, nurses, allied health professionals, and, in certain circumstances, midwives. Applicants must have a minimum of two years of directly related full-time (or full-time equivalent) work experience.

The International Graduates program is for recent graduates who have an offer of indeterminate, full-time employment with an eligible employer in British Columbia.  The position must be in an occupation classified under NOC Skill Level 0, A, or B.  Alternatively, if the position is in a NOC Skill Level C or D occupation, then the applicant’s employer must demonstrate that there is a structured career plan in place that will lead to a NOC Skill Level 0, A, or B position.  No previous employment experience is required; however, applicants must have a degree, diploma or certificate from an eligible post-secondary institution in Canada, and must apply to the BC PNP within two years of graduating.

The International Post-Graduates program is for recent graduates who have a masters or doctoral degree from an eligible program at a post-secondary institution in British Columbia.  The program must be in agriculture, biological and biomedical sciences, computer and information sciences and support services, engineering, engineering technology, health professions and related clinical sciences, mathematics and statistics, natural resources conversation and research, or physical sciences. No job offer is required; however, applicants must apply within two years of graduating.

The Entry Level and Semi-Skilled (“ELSS“) program is for individuals who been employed full-time by a B.C. employer in an eligible occupation for at least nine consecutive months immediately prior to applying to the BC PNP, and who have a full-time and indeterminate job offer in that occupation from the same employer who employed them during those 9 months. Eligible occupations are prescribed, and include those in tourism and hospitality, long-haul trucking, and food processing. In addition to the nine months experience requirement, long-haul trucker drivers must also have at least two years of employment experience as a long-haul truck driver in the three year period before registering Skills Immigration Registration System.

The current occupations that are eligible for the ELSS program in the tourism and hospitality sector are::

NOC Occupation
6525 Hotel Front Desk Clerks
6531 Tour and Travel Guides
6532 Outdoor Sport and Recreation Guides
6533 Casino Operators
6511 Maîtres d’hotel and Hosts/Hostesses
6512 Bartenders
6513 Food and Beverage Servers
6711 Food Counter Attendants, Kitchen Helpers
6731 Light Duty Cleaners at Hotels / Resorts
6732 Specialized Cleaners at Hotels / Resorts
6733 Janitors, Caretakers, and Building Superintendents employed by Hotels / Resorts
6721 Support Occupations in Accommodation, Travel, and Facilities Setup Services at Hotels / Resorts
6741 Dry Cleaning, Laundry, and Other Service Support Occupations at Hotels and Resorts

The Northeast Pilot Project is for individuals who have any full-time job offer in an NOC Skill Level C or D occupation, where that job is located in Northeast British Columbia. This pilot project program will run until March 31, 2016, and may be extended.

The following are additional requirements that apply to all programs above that are based on a job offer:

  • The job offer must contain a wage that is competitive with B.C. wage rates for that occupation.
  • The job offer must establish an employee/employer relationship with the employer. Independent contractor relationships are not accepted.
  • If the job offer is in a NOC Skill Level B, C, or D, position, then the applicant will have to complete a language test, and demonstrate English or French language proficiency at a Canadian Language Benchmark 4 level in listening, speaking, reading, and writing. As well, the BC PNP may, at its discretion, require an applicant with a job offer in a NOC Skill Level 0 or A position to complete a language test where the BC PNP has concerns about an applicant’s language ability.
  • The BC PNP will not approve applications where there are reasonable grounds to believe that an employer offered increased an employee’s wage for the purpose of meeting minimum income requirements, or for the purpose of obtaining a higher registration score.
  • The applicant cannot own more than 10% of the company that has offered the applicant employment.
  • Where the applicant is not already working for the employer, then the employer will have to conduct two weeks of bona fide and reasonable recruitment.
  • The employer must have operated in B.C. for at least one year prior to the registration being submitted, and two years for applicants in the ELSS program or the Northeast Pilot Project.
  • If located in Metro Vancouver, the employer must have five or more full-time (or full-time equivalent) and indeterminate employees. If the employer is located outside of Metro Vancouver, it must have at least three.
  • Applicants must demonstrate that they meet the BC PNP’s minimum income requirements. This minimum necessary income will depend on an applicant’s family size and area of residence in British Columbia. Applicants who are already working in British Columbia must demonstrate a history of having met the minimum necessary income requirement prior to registering. ELSS applicants must have met the minimum income requirement for the full duration of their 9 qualifying months of employment. A spouse’s income will only be considered towards the minimum necessary income where the spouse has a valid work permit and is currently employed in British Columbia.
  • The BC PNP will not approve applications where there are reasonable grounds to believe that an employer increased an employee’s wage for the purpose of meeting minimum income requirements, or for the purpose of obtaining a higher registration score.

The minimum income cutoff is.

Family Income Threshold by area of Residence
Size of Family Metro Vancouver Rest of B.C.
1 $21,895 $18,248
2 $27,257 $22,716
3 $33,510 $27,927
4 $40,685 $33,908
5 $46,145 $38,457
6 $52,043 $43,374
7 $57,943 $48,290

Finally, in all programs, applicants who are out of status and who have not applied for restoration of status will not be able to apply to the BC PNP.

Applicants who are in IRCC’s Express Entry pool should know that the BC PNP also has the following categories.

  • Express Entry BC – Skilled Workers
  • Express Entry BC – Health Care Professionals
  • Express Entry BC  – International Graduates
  • Express Entry BC  – International Post-Graduates

The Express Entry BC program requirements are similar to their corresponding non-Express Entry program requirements, with the exception that applicants must be in IRCC’s Express Entry pool at the time of registration, and Express Entry BC – International Graduates program participants require a job offer in a NOC Skill Level 0, A, or B position.   In 2015 the advantage of applying to an Express Entry BC program rather than its corresponding non-Express Entry BC program was that the Express Entry BC programs had faster processing times.  The same will presumably be true in 2016.

The Skills Immigration Registration System

Individuals who meet the minimum requirements for a BC PNP program described above can create an online profile and register in the SIRS. Registration is free of charge. Individuals may only have one active registration at a time, and they must indicate which stream they wish to be considered under.

It is important that information inputted during SIRS registration be accurate, as differences between the information in a registration and an application may lead to the BC PNP refusing an application.

Scoring in the Skills Immigration Registration System pool is as follows:

Scoring Sections Maximum Points
Skill Level of the B.C. Job Offer 60
Wage of the B.C. Job Offer 50
Regional District of Employment 10
Directly Related Work Experience 25
Highest Level of Education 25
Language 30
Maximum Total Points Available 200

Skill Level of the B.C. Job Offer points are calculated as follows:

Skill Level Points
NOC Skill Level A (including Skill Type 0) 25
NOC Skill Level B 10
NOC Skill Level C 5
NOC Skill Level D 5
Bonus Points
Occupation is a “00” NOC 15
Occupation identified in the Top 100 occupations in the BC Labour Market Outlook 2014-2024 10
Currently working in B.C. for the employer in occupation identified in the BC PNP registration 10
Maximum Score Available 60

Wage of the B.C. Job Offer points are calculated as follows:

Wage Points
$100,000 and above 50
$97,500 to $99,999 38
$95,000 to $97,499 37
$92,500 to $94,999 36
$90,000 to $92,499 35
$87,500 to $89,999 34
$85,000 to $87,499 33
$82,500 to $84,999 32
$80,000 to $82,499 31
$77,500 to $79,999 30
$75,000 to $77,499 29
$72,500 to $74,999 28
$70,000 to $72,499 27
$67,500 to $69,999 26
$65,000 to $67,499 25
$62,500 to $64,999 24
$60,000 to $62,499 23
$57,500 to $59,999 22
$55,000 to $57,499 21
$52,500 to $54,999 20
$50,000 to $52,499 19
$47,500 to $49,999 18
$45,000 to $47,499 17

Regional District of Employment points are as follows:

Regional District of Employment Points
Stikine, Central Coast, Northern Rockies, Mount Waddington, Skeena-Queen Charlotte, Powell River, Sunshine Coast, Kootenay-Boundary, AlberniClayoquot 10
Kitimat-Stikine, Bulkley-Nechako, Squamish-Lillooet, Strathcona, ColumbiaShushwap, East Kootenay 8
Peace River, Comox Valley, Cariboo, Central Kootenay 6
Okanagan-Similkameen, Cowichan Valley, North Okanagan, Fraser-Fort George 4
Thompson-Nicola, Nanaimo, Central Okanagan 2
Capital, Fraser Valley 2
Greater Vancouver 0
Maximum Score Available 10

Directly Related Work Experience points are calculated as follows.

Directly related work experience is work experience in the same NOC code, or work experience in an equal or higher NOC Skill Level where justification is provided.

Directly Related Work Experience in the Occupation of B.C. Job Offer Points
5+ years 15
4 to 5 years 12
3 to 4 years 9
2 to 3 years 6
1 to 2 years 3
Less than 1 year 1
None 0
Bonus Points
At least 1 year of directly related experience in Canada 10

Highest Level of Education points will be scored as follows.  The duration of the program must have been at least six months. It is important to note that language training programs do not qualify for bonus points.

Education Points
Doctoral of Master’s Degree 17
Post Graduate Certificate or Diploma 11
Bachelor’s Degree 11
Trades Certification 11
Associate Degree 4
Non-trades certification or diploma 2
High School 0
Bonus Points
Post-secondary education completed in B.C. 8
Post-secondary education completed in Canada (outside of B.C.) 6
Educational Credential Assessment from a qualified supplier 4
Trades certification assessment from the Industry Training Authority 4
Maximum Score Available 25

Language points will be based on testing from designated testing agencies as follows.  It is important to note that language ability will be scored on an applicant’s lowest score for reading, writing, speaking, or listening.

Language Points
10+ 30
9 26
8 22
7 18
6 14
5 10
4 6
Below 4 or no test 0
Maximum Score Available 30

The BC PNP will be periodically issuing Invitations to Apply (“ITAs“).  Only the highest scoring registrants will be issued ITAs.  Individuals who achieve or exceed the following registration scores will be guaranteed to receive an ITA.

Category Registration Score
Skills Immigration – Skilled Worker 135
Skills Immigration – International Graduate 105
Skills Immigration – Entry Level Semi Skilled 95
Skills Immigration – Northeast Pilot Project 95
Express Entry BC – Skilled Worker 135
Express Entry BC – International Graduate 105

At its discretion, the BC PNP will issue ITAs for scores lower than the above. The number and frequency of draws will be based on nomination allocation and program processing capacity. The BC PNP plans on managing application intake so that 25% of applications will be BC PNP Express Entry applications, 35-45% of applications will be Skilled Workers applications, 15-20% of applications will be International Graduates applications, and 10-15% of applications will be ELSS and Northeast Pilot Project applications.

More information about the Skills Immigration and Express Entry BC programs can be found here: http://www.welcomebc.ca/welcome_bc/media/Media-Gallery/docs/pnp/BC-PNP-Skills-Immigration-and-Express-Entry-BC-Technical-Guide.pdf

Please contact us if you have any questions or concerns about his upcoming change.


Western Canada PNP’s Reach Intake Threshold

With four months remaining in the year, both British Columbia’s and Alberta’s provincial nomination programs have announced that they are full.

 

BCPNPfull

AINP processing and inventory   Alberta Canada   Alberta  Canada

The ability of both provinces to meet the demands of their employers to retain foreign national employees on a permanent basis is clearly being cut off at the knees by federal quotas that appear to bare no resemblance to what is needed.


Evaluating the BC PNP Business Program

On February 17, 2015, the Province of British Columbia published the results of the following FOI request:

Specific fields of data, tabulated by year for the past four years, within the Performance Agreements for Business Immigration including: the number of agreements signed, investment amount committed and number of jobs committed as well as the agreements fulfilled, the actual investment amounts and actual number of jobs. Timeframe is 1 January 2011 to 31 December 2014.

The FOI results are embedded below.  There are many things that one can conclude from the data.  What is clear is that except for 2012, the “performance agreement success rate” is around 50%.


Should I Do BC PNP or CEC?

After the work experience requirement for the Canadian Experience Class went from two-years to one, many people have been asking whether they should apply for the BC PNP – Strategic Occupations – Skilled Workers program or the Canadian Experience Class.

The following table shows some of the issues that applicants should be aware with each application.  It was part of a larger table comparing the BC PNP to many federal economic immigration programs which I wrote in a paper for the 2013 Canadian Bar Association – British Columbia Branch Annual Immigration Conference.

Issue

BC PNP – Skilled Workers

CEC

Is a job offer required as part of the application? Yes, and the employer must have at least 3-5 employees depending on its location. No. In fact, there is no requirement that the applicant be employed during the processing of the application.
If a job offer is required, can the applicant change employers? Not until after nomination, and the BC PNP may withdraw nomination if the new position does not meet program requirements. N/A
If a job offer is required, does the employer have to do recruitment? Yes, although if the employee is a TFW the original recruitment is sufficient. N/A
How much work experience is required? Several years of directly related work experience.

 

1 year of work experience in a NOC 0/A/B occupation in Canada in the 3 years preceding the application. 
Does self-employment count to experience? Yes. No.
Can currently self-employed people apply? No, an applicant cannot own more than 10% of the employer. Yes.  However, they must have one year experience as an employee.
Processing times 8-12 weeks at BC PNP, and then varies at CIC 11 months
Is language testing required? No.

 

Yes.

If the 1 year experience was in NOC 0/A then CLB 7

If the position was NOC B, then CLB 5

Is there a minimum necessary income? Applicants must earn market rate.

Applicant + spouse must earn more than minimum necessary income.

No.
Do applicants need their credentials assessed? No. No.
Can an applicant maintain status  during permanent residence application processing? Yes, once they are nominated.

Eligible for bridging open work permit when CIO sends acknowledgement of receipt and work permit expiring in 4 months.

Eligible for bridging open work permit when CIO sends acknowledgement of receipt and work permit expiring in 4 months.
Is age a factor? No. No.
Policy on reconsideration Contact the Program Advisor, then Manager, then Director Reconsideration unlikely, judicial review generally needed.
Is it possible to speak with an officer on the phone? Yes. Rarely.
What if credit card bounces? Will send an e-mail asking for new details. Will bounce application.