Question & Answer – Canadian Experience Class (IR-02)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding the Canadian Experience Class.  The Canadian Experience Class allows individuals with one-year skilled work experience in Canada to apply to immigrate.  As with any program, questions emerged regarding specific requirements, including whether work in Canada for a foreign employer count towards the one-year requirement.

Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 28, 2013

Dear Sir / Madam,

I was wondering if you might be able to provide some guidance regarding a CEC application.  I have a client (foreign worker) who has a valid work permit (initially under C10 and then with supporting LMO) where the employer is a foreign company but does not have any operations in Canada.  The foreign employer is hoping to open up an office in ____ but in the meantime, has the foreign worker attending various client business meetings pitching for potential engagements of the foreign company and providing some consulting services.  The foreign worker is working full time hours in Canada and holds a functional manager position (NOC 0) and would (in my opinion) otherwise qualify for CEC but it is not clear whether his Canadian work experience over the past year would qualify as he has been working for a foreign company. 

I cannot find anything in the guide, operational manual, website or checklist that would exclude him, however, the situation did strike me as unusual and I wanted to confirm this issue before preparing the CEC application. 

Thank you for your guidance.

Warm regards, 

Answer – May 29, 2013

As long as the foreign national demonstrates that they acquired their qualifying period of skilled work experience in Canada with the proper authorization, they are eligible to apply under the Canadian Experience Class.  There is no regulatory requirement that remuneration be provided from within Canada or that work experience be obtained with a Canadian employer.

You note that the foreign worker has been providing “some consulting services.”  Note that pursuant to R87.2(3)(b), any period of self-employment will not be included in calculating a period of work experience.  All applicants are required to provide satisfactory evidence of their work experience in Canada, including the fact that they were in an employer-employee relationship during their period of qualifying work experience.  

From a policy standpoint it makes complete sense that skilled work in Canada for a foreign employer should count towards meeting the work experience criteria of the Canadian Experience Class.  From a practicality and program integrity standpoint, issues do arise where the employer is not a well known company, and applicants should take this into consideration when preparing their applications.


Certified Question on Salaries and the CEC

The Federal Court has certified a question regarding whether immigration officers can consider a position’s prevailing wage rate when determining whether an applicant meets the requirements of the Canadian Experience Class (“CEC“).  Although the Court in Qin v. Canada (Citizenship and Immigration), 2013 FC 147 stated that it can, the issue is now on its way to the Federal Court of Appeal.

In a previous blog post, I noted that one of the advantages of the CEC over the British Columbia Provincial Nomination Program – Skilled Workers (“BC PNP – Skilled Workers“) was that the CEC did not analyze how much applicants made during their work experience, while the BC PNP – Skilled Workers required that they be paid market rates for their ongoing employment.  The Qin decision may accordingly change the attractiveness of the BC PNP – Skilled Workers compared to the CEC for some applicants.

Neither the Immigration and Refugee Protection Regulations (the “Regulations“) nor the Citizenship and Immigration Canada Processing Manuals state that officers should consider salary when assessing whether an applicant has the requisite experience in a skilled position for the CEC.  Section 87.1 of the Regulations simply require an officer to evaluate whether a candidate has experience in an eligible occupation.  On this point, Madam Justice Gleason wrote that:

In evaluating whether or not an applicant’s experience falls within a permissible [occupation], an officer is required to understand the nature of the work performed and the degree of complexity of the tasks undertaken, to determine whether or not they fall within the duties listed in the relevant [occupation]. The requisite analysis necessitates much more than a rote comparison of the duties listed in the [occupation] with those described in a letter of reference or job description. Rather, what is required is a qualitative assessment of the nature of the work done and comparison of it with the [National Occupational Classification Code  (“NOC“)] descriptor. Indeed, there is a line of authority which indicates that, in the context of Federal Skilled Workers (where an officer is similarly required to assess duties performed against the NOC Code descriptors), the officer may legitimately question whether the applicant possesses the relevant experience if all that he or she does is repeat the duties from the NOC descriptor in a letter of reference. In such cases, this Court has sometimes held that an officer is required to hold an interview or pose additional questions in writing to an applicant, in order to obtain more detail about the actual nature of the work performed (see e.g. Talpur and Patel v Canada (Minister of Citizenship & Immigration), 2011 FC 571). Thus, it is beyond debate that the officer must undertake a substantive analysis of the work actually done by an applicant.

The Court then went on to note that the salary paid to an employee is typically one indicator of the complexity of the work performed.  The more complex the task,  the higher the wages paid for it.  As such, the average wage for a position in general is relevant to the assessment of the nature of a CEC applicant’s experience.  Madam Justice Gleason also noted, however, that while it is reasonable for immigration officers to consider salary as one factor of the analysis, it would be unreasonable to “weed out” or disqualify applicants who did not earn a position’s minimum salary.

The Court did certify the following question on the issue, which means that the Federal Court of Appeal will soon provide a definite answer.

Is it permissible or reasonable for a visa officer to consider HRSDC comparator salary data when assessing the nature of the work experience of an applicant who wishes to qualify as a member of the Canadian Experience Class, as described in section 87.1 ofImmigration and Refugee Protection Regulations, SOR/2002-227?

 

 

 


Canadian Experience Class Applicants Must Take the IELTS

Photo by nathan17

The final of today’s series of changes to Canadian immigration law is the introduction of a requirement that Canadian Experience Class applications must be accompanied by the results of the principal applicant’s English or French language proficiency assessment. The same is true for Federal Skilled Workers.

Only test results from a third-party language testing agency designated by the Minister of Citizenship, Immigration and Multiculturalism will be accepted.

No word yet if any of these institutes have been designated: