Bridging Open Work Permits

Citizenship and Immigration Canada’s (“CIC“) International Mobility Program containing an bridging open work permit program for temporary foreign workers currently working in Canada who have submitted permanent residence applications under the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Provincial Nominee Program (“PNP“), or the Federal Skilled Trades Program (“FSTP“).

Bridging open work permits are a huge and positive development for Canadian employers with employees who have filed permanent residence applications under one of Canada’s economic programs.  CIC’s introduction of bridging work permits removes a significant issue which many temporary foreign workers previously encountered, namely that they were unable to extend their work permits during CIC’s processing of their permanent resident applications without their employers first having to obtain positive Labour Market Impact Assessments, an uncertain process which often takes months.

Eligibility

Temporary foreign workers currently working in Canada are eligible to apply for a bridging work permit if they:

  • are a foreign national in Canada;
  • have valid status on a work permit that is due to expire within 4 months;
  • received a positive eligibility decision on their permanent residence application under either the FSWP, the CEC, the PNP, or the FSTP; and
  • they have applied for an open work permit.

The following individuals are not eligible for open bridging work permits:

  • foreign nationals in Canada working in Canada who are work permit exempt;
  • foreign nationals who have let their status expire and must apply for restoration in order to return to temporary resident status;
  • foreign nationals whose work permits are valid for longer than four months and/or who already have a new Labour Market Impact Assessment that can be used as the basis for a new work permit application;
  • foreign nationals applying for a bridging work permit at the port of entry;
  • spouse and dependants of the principal permanent resident applicant; and
  • provincial nominees who have not submitted a copy of their nomination letter with the application for a bridging work permit, or whose nomination letter specifically indicates employment restrictions.

That last point is an important one for provincial nominees.  Provincial nominees whose nomination certificates stipulate conditions or restrictions indicating that they must work for a specific employer, or work under a specific NOC code, will not be eligible for bridging open work permits.

For the purpose of determining whether a positive eligibility decision has been made, the following must have occurred:

  • For FSWP applicants,  CIC must have sent a positive Final Determination of Eligibility Letter, or set the “Ministerial Instructions” status to “Met.”
  • For PNP applicants, the Central Intake Office must have sent the applicant an Acknowledgement of Receipt Letter, or changed the “Eligibility EC-QC/PNP” status to “Passed.”
  • For CEC applicants, the Central Intake Office must have sent the applicant an Acknowledgement of Receipt Letter, or changed the “Eligibility CEC” decision to “Passed.”
  • For FSTP applicants, the Central Intake Office must have sent the applicant an Acknowledgement of Receipt Letter.

Although no guidelines have been posted regarding Express Entry, CIC has indicated on numerous occasions that the Express Entry “Acknowledgement of Receipt” which says that CIC is performing a completeness check does not make an individual eligible for an open bridging work permit.  Rather, it is when CIC’s Global Case Management System is updated to indicate that the Express Entry application is complete.

Applicants will be issued open work permits valid for a duration of one year.  They can be renewed on a case-by-case basis if the permanent residence application has not been processed within that time.

FSWP, CEC, and FSTP applicants’ work permits will be valid for work in any province.  PNP applicants’ bridging work permits will be limited to the applicant’s nominating province.

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Express Entry

On January 1 2015, Citizenship and Immigration Canada (“CIC“) is expected to overhaul its economic immigration programs with the launch of Express Entry.  On December 1, 2014, the Government of Canada released detailed Ministerial Instructions regarding Express Entry.  In this post I hope to provide an easy to read overview of the new program.

Express Entry will significantly alter every economic immigration program, including the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Federal Skilled Trades Program (“FSTP“), and the Provincial Nominee Program (“PNP“).

Rather than first in, first processed for permanent residence applications Express Entry will feature a “selection” of candidates who the Government of Canada believes is most likely to succeed in Canada.

Express Entry will consist of two steps for potential applicants:

  1. Completing an Online Express Entry Profile
  2. Receiving a Letter of Invitation

CIC is touting that Express Entry is not a new immigration per se, but rather a way for CIC to manage economic immigration applications online.  However, a quick review of Express Entry suggests that who will be eligible to immigrate to Canada under Express Entry will fundamentally change.

Continue reading “Express Entry”


The National Occupational Classification System

Much of Canada’s immigration system is based on Human Resources and Skills Development Canada (“Service Canada’s“) National Occupational Classification (“NOC“) system.  Economic class applicants generally need to understand the NOC system because the success of their applications will depend on them demonstrating that they have qualifying experience or pre-arranged employment in certain NOCs.  Employers submitting Labour Market Impact Assessment applications to the Ministry of Economic and Social Development Canada (“ESDC“) need to know which NOCs their vacant positions fall under because this will determine the respective prevailing wage and recruitment requirements.  Indeed, it is arguable that international graduates should pay attention to the NOC of their first jobs out of post-secondary school because only experience in certain NOCs will count towards immigration.

Continue reading “The National Occupational Classification System”


Language Requirements for Immigration (IR-11)

During the time that I have been writing this blog the most frequently asked question that readers have asked me is whether their IELTS band scores are sufficient for certain immigration programs.  Some people have even offered to book initial consultations with me just so that I would review their IELTS scores.  This has always been somewhat surprising to me given that the Citizenship and Immigration Canada (“CIC”) website publishes each of its program’s respective language requirements in a clear and concise manner.

Indeed, it is not just members of the general public that seem to be confused.  As shown in the exchange below, which I obtained through an Access to Information Act request, some immigration lawyers are unclear of the requirements.  (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 21, 2013

Dear Sir/ Madam,

I have been referred to your office, by Karen Flynn, of NHQ-Immigration in Ottawa, her phone number is _______.

I practice immigration law in Toronto, and I have the following question, regarding the Federal Skilled Worker Class, in light of the recent changes, in effect, as of May 4, 2013:

  • the IETLS benchmark is CLB 7, i.e. 6 points, for each ability. If the results of a foreign national are, for example, in 1, or 2, or 3 abilities in the CLB 8 or higher, but 1 ability, or 2, or 3, are at CLB 7level, can I give 5 or more points per ability, for the CLB 8, or higher, and 4 points, for the CLB 7 result, or once one of the results is in the CLB 7 area, all abilities can only receive 6 points, i.e. 16 points.

Basically, can I give points for each ability depending on where the ability is in the CLB range, e.g. 2 abilities are 6.0, and 2 abilities are 6.5, is the assessment 18 points or 16 points?

I look forward to your response.

Best regards,

Answer – May 22, 2013

Thank you for your inquiry.

As of May 4, 2013, all applicants under the Federal Skilled Worker Class must demonstrate that they meet the minimum language proficiency threshold of CLB 7 in all four language abilities.

As outlined in section 11.2 of the OP 6C operational manual, officers will award points for first official language proficiency based on the applicant’s demonstrated CLB level per language ability. For example, an applicant who had obtained CLB 7 in two language abilities and CLB 8 in the other two language abilities would be awarded a total of 18 points for first official language proficiency (4 points for each language ability in which their proficiency meets the minimum threshold+ 5 points for each language ability in which their proficiency exceeds the minimum threshold by one benchmark level).

There are three aspects of CIC’s response to the question above that I wish to elaborate on.  The first is where individuals can locate information about a program’s language requirements on the CIC website.  The second is the distinction between the Canadian Language Benchmark (“CLB”) and the IELTS bandscores, and how to calculate equivalence.  Finally, I will also address whether there are language requirements to becoming a temporary foreign worker.

The Languages Manual

The CIC website publishes all of its publicly available program manuals on its website here.  While there are some private manuals that can only be accessed through Access to Information Act requests, they probably only significantly impact to 5 – 10% of people interact with CIC. 

Operational bulletins and manuals - language

As shown in the image above, in order to simply its language requirements, CIC has consolidated its language requirements into a single, online manual on its website.  The languages manual is divided into the following sections:

Except for the language requirements for the Temporary Foreign Worker Program (“TFWP”), which is discussed below, the manuals above comprehensively describe most of the language requirements for CIC’s various programs.

CLB vs. IELTS

It is important that prospective applicants distinguish between their IELTS scores and the CLB.  This can be especially confusing to people considering that the scoring system looks similar.

The CLB is the national standard used in Canada for describing, measuring, and recognizing the English language proficiency of adult immigrants and prospective immigrants for living and working in Canada. It classifies English language ability according to 13 language benchmarks.

The IELTS are one of the language tests that the Respondent has designated as being an acceptable test to asses an applicant’s CLB.  There are nine IELTS band levels, and CIC has produced numerous charts on its website showing equivalencies of the 9 IELTS bands to the 13 CLB levels.

Language test equivalency charts

The distinction is important.  I occasionally meet individuals who did not apply for the Canadian Experience Class (“CEC”) because they were told that they needed a 5.0 in all language abilities.  While this is technically true, the “5.0 requirement” refers to CLB, not IELTS.  As shown above, an IELTS Listening Score of 4.0 is equal to a CLB score of 5.0.  Hence, these individuals erred in assuming that they were not eligible.  As the CEC has application caps, delaying applying to unnecessarily re-write the IELTS can have significant detrimental consequences.

The Temporary Foreign Worker Program

Many people mistakenly assume that the TFWP does not have language requirements.  Work Permit applicants accordingly often question CIC’s authority to request proof of language ability during the Work Permit application process, which is becoming increasingly common.

Section 8.3 of the CIC’s Temporary Foreign Worker Manual states:

 R 200 (3) (a) states that:

“An officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.”

Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job.

Additionally, the officer can consider:

  • the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
  • terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”

An officer should NOT consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance. Such a consideration is beyond the scope of the current legislation.

The same principles respecting official language capability and the applicant’s ability to perform the work sought apply irrespective of the skill level of the intended occupation. There is no separate standard or criteria for applicants at NOC skill levels C or D.

An applicant’s language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMO requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that h/she would be able to perform the work sought.

 

 


The CEC Has Changed, What to do Now

[Editor’s note: The following appeared in the December edition of The Canadian Immigrant Magazine]

On Nov. 8, 2013, Citizenship and Immigration Canada (CIC) introduced significant changes to the Canadian experience class (CEC), which limited eligibility to the popular program. The changes took effect the next day. Hundreds (if not thousands) of foreign workers in Canada who were gaining work experience that previously qualified for the CEC suddenly learned that it did not.

For some of these individuals, many of whom are post-graduate work permit holders, career changes will be necessary if they wish to immigrate to Canada.

However, in the month following CIC’s announcement, many people researched their options and discovered to their surprise that they qualified for other Canadian immigration programs. Indeed, some even learned that they could have submitted permanent residence applications many months prior to Nov. 8.

The CEC changes

The changes that CIC introduced to the CEC are significant. First, the program now features annual application caps. From Nov. 9, 2013, to Oct. 31, 2014, CIC will accept 12,000 completed applications to the program. Within the overall 12,000 application cap, CIC will process a maximum of 200 new CEC applications each year per each National Occupational Classification (NOC) Skill Level B occupation. While NOC Skill Type 0 and NOC Skill Level A occupations are not individually sub-capped, applicants with such work experience are subject to the overall 12,000 application cap.

The second change — and for many people the much more devastating one — was CIC’s decision that work experience gained in six proscribed NOC Skill Level B occupations would no longer count toward the CEC work experience requirement. The six occupations are administrative officers, administrative assistants, accounting technicians and bookkeepers, retail sales supervisors, food service supervisors and cooks.

Alternative programs

Before abruptly changing careers, foreign workers whose work experience no longer qualifies for the CEC should determine whether they qualify for other similar economic immigration programs. Indeed, the abrupt CIC change is a useful reminder to all foreign workers that they need to be up to date on all possible immigration options.

All of the now disqualified NOC Skill Level B occupations mentioned are still eligible for the federal skilled worker program (FSWP) if applicants have arranged employment, and also meet a minimum number of points based on their education, language ability, adaptability, age and work experience. The key is that the arranged employment generally must be confirmed by a positive Labour Market Opinion. However, this should normally not be a barrier, especially for positions where recruitment requirements are waived, as is the case with LMOs for post-graduate work permit holders.

As well, most provincial nomination programs still welcome foreign workers employed in any NOC Skill Level B occupation. In British Columbia, for example, anyone with several years of directly related work experience currently employed by a qualifying British Columbia employer can apply for nomination. For B.C. international graduates applying within two years of graduation, applicants do not even need previous work experience.

The biggest issue most skilled foreign workers face when immigrating to Canada is timing. For understandable reasons, many people wait until a few months before their work permits expire to explore permanent resident options. However, given that processing times are often lengthy, they simply often do not have sufficient time before their work permits expire.

Understand all your options

Canada’s immigration system features a myriad of often seemingly competing programs. All have their own unique requirements. In an immigration system that increasingly features abrupt changes in the rules, application caps and ever-fluctuating processing times, it is imperative that prospective immigrants understand all of their potential avenues to immigrate, and start the processes as soon as possible.


CIC Caps CEC, Eliminates Eligible Occupations

On November 8, 2013, Citizenship and Immigration Canada (“CIC”) announced significant changes to the Canadian Experience Class (“CEC”).

The CEC is a very popular program for immigrating to Canada.  Subject to narrow exceptions, individuals qualify for the CEC if:

  1. they plan to live outside of Quebec;
  2. they have at least 12 months of full-time skilled work experience in Canada during the three-year period before they apply;
  3. they gained their skilled work experience in Canada with the proper authorization;
  4. they were not self employed when they gained their skilled work experience; and
  5. they meet required language levels (which vary according to occupation).

Qualifying skilled work experience is work experience in one or more National Occupational Classification (“NOC”) Skill Type 0, or Skill Level A or B, occupations.  The NOC is a Ministry of Economic and Social Development initiative which categorizes all occupations in Canada.  It can be found here.

The November 8 changes introduce an annual cap on the number of CEC applications that CIC will accept each year, introduce a further sub-cap for NOC Skill Level B occupations, and eliminate certain NOC Skill Level B occupations from being eligible for the CEC.

The above changes took affect on November 9, 2013.  They only apply to applications which CIC receives after that date.

Caps

CIC will consider a maximum of 12,000 completed CEC applications each year. Within the overall 12,000 application cap, CIC will process a maximum of 200 new CEC applications per NOC Skill Level B occupation each year.

While there is no sub-cap on CEC applications in NOC Skill Type 0 or NOC Skill Level A occupations, these occupations are subject to the overall cap of 12,000 new applications.

The cap period began on November 9, 2013, and will end on October 31, 2014.

Ineligible Occupations

Effective November 9, 2013 work experience in the following six occupations no longer qualifies for the CEC:

  1. NOC 1221 – Administrative Officer
  2. NOC 1241 – Administrative Assistants
  3. NOC 1311 – Accounting Technicians and Bookkeepers
  4. NOC 6211 – Retail Sales Supervisors
  5. NOC 6311 – Food Service Supervisors
  6. NOC 6322 – Cooks

It is important to note that the above NOCs are very broad.  NOC 1221, for example, includes administration analyst, admissions officers, budget analysts, financial aid officers, management planning officers, office managers, and similar positions).  NOC 1241 includes almost all secretarial positions (except legal and medical).  Individuals who are unsure what NOC their position falls under should consult the 2011 National Occupational Classification website.

The elimination of these six occupations from being eligible for the CEC is having a significant affect on many individuals.  In the two weeks since the November 8 announcement, Larlee Rosenberg has provided consultations (and explored alternative programs) to several individuals who had several months experience (in one case 11.5 months) in an occupation which is now no longer eligible under the CEC. It is imperative that foreign workers and recent international graduates working in these occupations be made aware of the change.

Procedural Fairness

On the same day that CIC announced the above changes, it issued an Operational Bulletin to its immigration officers stating that “[i]f, after considering all other skilled NOC occupations specified in the application, the officer determines that the applicant does not have the qualifying work experience, they must return to the occupation and claimed work experience about which they have concerns and that was subject to the final determination of eligibility at the [office doing the preliminary review of the application].  In accordance with the principles of procedural fairness, the officer must afford the applicant the opportunity to respond to any concerns related to the occupation and work experience in question.”

This new, explicit requirement for immigration officers to provide visa applicants with the opportunity to address visa officers’ concerns about their work experience is a very welcome development.  It introduces a strong measure of certainty and confidence in applying to the CEC.

Wages and the CEC

We are often asked whether there is a minimum wage (or prevailing wage) requirement for CEC applicants.

On November 19, 2013, the Federal Court of Appeal has released its decision in Qin v. Canada (Citizenship and Immigration Canada), 2013 FCA 263.  There, the Court confirmed that it is not a statutory criterion that an applicant for permanent residence as a member of the CEC be paid wages that are consistent with the Ministry of Economic and Social Development’s prevailing wage rates for a position.  While immigration officers may consider wages as a factor in determining what duties applicants performed, if there is satisfactory evidence from an employer that a CEC applicant has the required Canadian work experience, the applicant may be granted a permanent resident visa even though her wages are below prevailing wage rates.

More information about the changes to the CEC can be found here:

Please contact us if you have any questions or concerns about these changes.


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?

 

 

 


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.