Ministerial Instructions – Revoking, Suspending, and Refusing to Process Work Permits and Labour Market Opinions

On December 27, 2013, Citizenship and Immigration Canada (“CIC“) and the Ministry of Economic and Social Development (“Service Canada“) released Ministerial Instructions regarding the revocation of work permits and Labour Market Opinions (“LMOs“), now called Labour Market Impact Assessments (“LMIAs“).  The Ministerial Instructions will allow the Government of Canada to rapidly respond to economic developments by immediately reducing the intake of foreign workers, will increase program integrity, and create uncertainty for Canadian businesses.

These are the first Ministerial Instructions to be issued by Service Canada since the Government of Canada amended s. 30 of the Immigration and Refugee Protection Act (“IRPA“) in the first 2013 Budget Implementation Act.  Section 30 of IRPA now reads:

Work and study in Canada

30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.

Authorization

(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.

Instructions

(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.

Concurrence of second officer

(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.

Purpose

(1.4) The instructions referred to in subsection (1.2) shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

Revocation of work permit

(1.41) An officer may revoke a work permit if, in the officer’s opinion, public policy considerations that are specified in instructions given by the Minister justify the revocation.

For greater certainty

(1.42) For greater certainty, subsection (1.41) does not affect any other lawful authority to revoke a work permit.

Revocation or suspension of an opinion

(1.43) If, in the view of the Department of Human Resources and Skills Development, public policy considerations that are specified in instructions given by the Minister of Human Resources and Skills Development justify it, that Department may

(a) revoke an opinion provided by that Department with respect to an application for a work permit;

(b) suspend the effects of the opinion; or

(c) refuse to process a request for such an opinion.

For greater certainty

(1.44) For greater certainty, subsection (1.43) does not affect any other lawful authority to revoke an opinion referred to in that subsection.

Publication

(1.5) Instructions given under this section shall be published in the Canada Gazette.

Service Canada – Ministerial Instructions Respecting Labour Market Opinions

Service Canada’s Ministerial Instructions clarify that the public policy considerations which may justify the revocation of a LMIA pursuant to s. 30(1.43)(a) of IRPA with respect to a work permit application are:

  • if new information becomes available after the LMIA is provided indicating that the employment of the foreign national under the work permit is having or will have a significant negative effect on the labour market in Canada.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is;
  • that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  It is unclear how material the misleading or inaccurate information has to be in order to justify the revocation of a LMIA; and
  • that the employer’s name has been added to the employer blacklist referred to in the proposed subsection 209.91(3) of the Immigration and Refugee Protection Regulations.   These regulations are not yet in force yet, but these Minister Instructions suggest that they soon will be.  More information about them can be found in my blogpost here.

Service Canada’s Ministerial Instructions further clarify that the public policy considerations which may justify the suspension of a LMIApursuant to s. 30(1.43)(b) of IRPA with respect to a work permit application are that:

  • new information becomes available after the time that the opinion is provided that, if known at that time, would have led to a different opinion.  It is not clear what such information would be, whether such a determination can only be made by the officer who issued the original LMIA, and how a suspension in this context would be different from a revocation;
  • there are reasonable grounds to suspect that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  In addition to the above questions regarding misleading information in the context of revocation, it is not clear when revocation would be appropriate rather than suspension;
  • there are reasonable grounds to suspect that the employer is not complying with the conditions set out in subsection 209.3 or 209.4 of the proposed (soon to come into effect) Regulations in respect of that work permit or any other work permit and the failure to do so may not be justified under one or the other of those sections, as applicable; and

Finally, the Ministerial Instructions provide that the public policy considerations which may justify Service Canada to refuse to process a LMIAare that:

  • there is information to indicate that the employment of the foreign national under the work permit in any portion, sector, region or occupational group of the labour market in Canada may or will have a significant negative effect on that labour market; and
  • the request for an opinion relates to an application for a work permit the processing of which would be refused under the terms of instructions given by the Minister of Citizenship and Immigration under subsection 87.3(3) of the Act.

The potential implications of the above two points relating to Service Canada’s new ability to refuse to process certain LMIA applications is perhaps best understood when considering CIC’s 2013decision to abruptly announce that six occupations no longer qualified for the CEC.  It is not difficult to envision a future in which Service Canada announces that “effective immediately, Service Canada will no longer process LMIAs for cooks,” or “effective immediately, Service Canada will refuse to process all LMIAs in Sudbury.”  Indeed, on June 20, 2014, ESDC announced that it would refuse to process LMIAs in certain occupations in certain regions.  The need for employers to be made aware of this risk, especially since Service Canada may make such an announcement during the employer’s mandatory advertising period, is crucial.

The Ministerial Instructions took effect on December 31, 2013.  Several LMIAs have since been suspended, and the following is an example of a suspension letter.

CIC – Ministerial Instructions Regarding the Processing of Certain Work Permit Applications

CIC’s Ministerial Instructions provide instructions to officers with respect to the effects of a decision by Service Canada to suspend a LMIA.

Officers have been instructed to suspend the processing of LMIA-based work permit  applications where Service Canada has suspended the relevant LMIA.  CIC will inform such applicants that the processing of their application will not continue until such a time as the LMO suspension is no longer in effect.

The Ministerial Instructions took effect on December 31, 2013.  They apply to all applications received by CIC on or after December 31, 2013.  They also apply to applications that CIC has received butnot yet processed.

CIC – Ministerial Instructions Regarding the Revocation of Certain Work Permits

CIC has clarified that the public policy considerations which may justify the revocation of a work permit are that:

  • the LMO that work permit was based on has been revoked;
  • in the case of a work permit that was issued to a foreign national referred to in any of subparagraphs 200(1)(c)(i) to (ii.1) of the Regulations (which includes the Self-Support Class, the PR Applicants in Canada Class, the Humanitarian Reasons Class, the Significant Benefits Program, the Provincial / Territorial Agreements Program, and the International Agreements Program),  with respect to a specified employer, new information becomes available indicating that the employment of the foreign national under the work permit is having or will have a significantly greater negative effect than benefit with respect to the development of a strong Canadian economy, unless the revocation of that work permit would be inconsistent with any trade obligation of the Government of Canada under an international agreement.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is.  It is also unclear how provincial nominees will be affected;
  • the employer or group of employers provided false, misleading or inaccurate information in the context of the application for the work permit;
  • the employer’s name has been added to the employer black-list referred to in subsection 209.91(3) of the Regulations; and
  • the work permit was issued to a foreign national on the basis of their relationship to another foreign national and the work permit of that other foreign national has since been or is currently being revoked.

Conclusion

While these Ministerial Instructions as written are significant, it remains to be seen if the “bark is worse than the bite.”  It has been nearly three years since CIC first announced the creation of the employer blacklist.  To date not a single employer has been added to the list.  I still believe that the greatest way to promote compliance is to start publicizing the names of authorized representatives who employers have implicated in promoting fraud.  While Service Canada maintains an internal list of this, publicizing it would ensure that employers avoid the individuals most guilty of this.


Immigration Applications are not Processed in the Order that they are Received

[Editor’s Note: The following appeared in the September 2012 version of The Canadian Immigrant.  In drafting a blog post about a similar topic I realized that I had never posted the article below to my blog. I am therefore posting this today. The title in The Canadian Immigrant article was “What Applicants Should Look for In New Immigration Rules.“]

People who follow Canada’s immigration system have undoubtedly had trouble keeping up with the rapid changes that Citizenship and Immigration Canada has introduced in the past several months. From the termination of 300,000 federal skilled worker applications to the proposed “Start-up Visa,” the announcements have been fast and furious, and each one has been debated extensively.

In discussing each individual change, however, the public discourse has largely missed the shift in the forest by focusing on each tree. There is a fundamental transformation underway in Canada’s immigration system, and it is important that anyone submitting a visa application understand this before applying.

First in, first processed

Traditionally, Canada’s immigration system operated on a first-come first-processed basis. Our immigration legislation created programs under which eligible applicants could apply. People submitted applications under various programs with the understanding that while they would have to wait in the queue behind those who applied before them, they could be certain that the Canadian government would process their applications before anyone who applied after them. Importantly, they could also be certain that their application would actually be processed according to the criteria that existed when they applied.

Enter the ministerial instructions

In 2008, however, the Government of Canada began abandoning the first-come first-processed system by introducing what are now commonly referred to as ministerial instructions. Ministerial instructions are directives by the minister of Citizenship and Immigration Canada (CIC). They allow CIC to accelerate the processing of some applications, set quotas on how many applications in a program will actually be processed, and introduce additional program requirements not found in Canada’s immigration legislation.

It was through ministerial instructions that CIC reduced, capped, and in 2012 suspended the acceptance of most new applications in the skilled worker program. While the Government of Canada recently published legislation saying that the skilled worker program will reopen on Jan. 1, 2013, and published a new points system, no one knows what additional requirements and restrictions the minister will impose on the skilled worker program through ministerial instructions. Ministerial instructions also enabled CIC to prioritize processing of applications such that people who applied to the skilled worker program after 2010 can expect their applications to be processed faster than those who applied before. It was also through ministerial instructions that CIC capped the number of investor applications, suspended the entrepreneur program, and put a two-year moratorium on parent and grandparent applications. The minister was able to introduce all of these significant changes without having to consult Parliament, without having to amend Canada’s immigration legislation and without having to provide any notice of the changes.

The 2012 Budget Implementation Act introduced further changes to Canada’s immigration system that expand the scope of ministerial instructions. Ministerial instructions will soon allow the minister to unilaterally establish new immigration programs and to govern how they are processed. Importantly, changes to such programs can be made retroactively. As well, the 2012 Budget Implementation Act specifically provides that ministerial instructions can set the number of applications that will be processed in a given immigration program at zero.

Terminating the skilled worker backlog

Perhaps the biggest indicator of how far Canada has moved away from a first-come, first-processed immigration system was the government’s decision to terminate all skilled worker applications that were submitted prior to Feb. 27, 2008. Approximately 300,000 applications are being returned to people who applied to immigrate and patiently waited in the queue.

As of writing, there are several lawsuits underway that will determine whether the 300,000 skilled worker applications are ultimately terminated. However, it is important for the potential visa applicant to understand that their application can be terminated after it is submitted or that CIC will simply not process it.

Applicants beware

The Canadian government appears to want the ability to choose which visa applicants it will admit after the applicants have already applied to immigrate to programs under which they are eligible. It wants the ability to process applications in response to the immediate and ever-changing needs of Canadian society. It is simply not interested in processing applications under programs that it does not feel will address these needs.

Applicants accordingly need to beware that, contrary to their reasonable expectation, applying for a visa under a program in which they are eligible to immigrate does not mean that they will be admitted. Their eligible application could be pushed back in processing priority, subject to a cap of zero or, worst of all, terminated.


Federal Skilled Trades Class to be Capped at 3,000 Applicants

As previously discussed here, Citizenship and Immigration Canada (“CIC“) will be introducing a new Federal Skilled Trades Class (“FSTC”), which will facilitate the immigration of certain skilled tradespersons in Canada.  The Government of Canada originally “announced” the creation of the FSTC in August through the publication of regulatory changes, however, CIC today released new information which will be relevant to prospective applicants.

The FSTC will be open to individuals with experience in the following National Occupation Classification (“NOC“) B occupational areas:

  • Industrial, Electrical and Construction Trades;
  • Maintenance and Equipment Operation Trades;
  • Supervisors and Technical Occupations in Natural Resources, Agriculture and Related Production;
  • Processing, Manufacturing and Utilities Supervisors and Central Control Operators;
  • Chefs and Cooks; and
  • Bakers and Butchers.

Applicants to the FSTC will be required to meet the following four minimum requirements:

  1. Be working in Canada, or possess a LMO-supported offer of employment from up to two employers in Canada of at least one year duration, or possess a Certificate of Qualification from a provincial or territorial Apprenticeship Authority;
  2. Meet the same minimum language threshold as required by the concurrently to be introduced new Federal Skilled Worker Class, namely a 7.0 on every language ability;
  3. Have twenty-four months of work experience (after qualification/certification in the country where the work was performed, where applicable) in the same skilled trade as which they are applying under in the last five years; and
  4. Have qualifications that satisfy employment requirements as described by the NOC, except for certification and licensing requirements.

The FSTC will be capped at 3,000 applications in its first year.

Individuals who are keenly anticipating the launch of the new Federal Skilled Worker Program (“FSWP“) should note that when the Government of Canada in August announced the creation of the FSTC, they did not indicate that the program would be capped.  The capping of the FSTC will presumably be done through Ministerial Instructions.  I strongly believe that at the same time that these Ministerial Instructions will be published officially capping the FSTC, concurrent Ministerial Instructions will also be published capping and limiting who can apply to the new FSWP.  Prospective applicants should be aware of this possibility while they prepare their FSWP applications.

 


Ministerial Instructions will be Jason Kenney’s Greatest Legacy

There are numerous significant changes to Canada’s Immigration and Refugee Protection Act (“IRPA”) buried inside the 2012 Budget Implementation Act (the “BIA”).  The first change, the termination of approximately 300,000 Federal Skilled Worker Applications, was expected.  The other, the expansion of the role of Ministerial Instructions, was not.

Jason Kenney, the Minister of Citizenship and Immigration Canada (the “Minister”), has made several significant changes toCanada’s immigration system.  Many of these are substantive (who is eligible to immigrate), and will likely be changed by future ministers and governments.  His involvement in the creation and expansion of the use of Ministerial Instructions, a procedural change, however, may be his most enduring legacy.

In 2008, amendments to IRPA provided that the Minister could issue instructions to immigration officers (“Ministerial Instructions”) regarding which applications were eligible for processing.  This overturned the government’s long standing obligation to process all eligible applications in the order in which they were received. The Minister was further empowered to issue Ministerial Instructions to limit the number of applications processed, accelerate some applications or groups of applications, and return applications without processing them to a final decision.

It was through Ministerial Instructions that Citizenship and Immigration Canada (“CIC”) reduced and capped the number of occupations eligible for the Federal Skilled Worker Program, capped the number of Investor Applicants, suspended the Entrepreneur program, and put a moratorium on parental and grandparent applications.  The Minister was able to do all of this without consulting Parliament, or amending IRPA and its regulations.

Division 54 of Part 4 of the BIA expands the role of Ministerial Instructions by further providing that the Minister can give instructions establishing and governing classes of permanent residents as part of the economic class.  In other words, while the Canadian Experience Class was created after extensive consultation and notice by amending the Immigration and Refugee Protection Regulations, future economic programs will be established through the sole discretion and timing of the Minister.

The BIA also provides that the User Fees Act, which requires that the Government of Canada take certain consultative steps before establishing fees, does not apply in respect of fees set by Ministerial Instructions created economic streams.  Furthermore, the BIA changes will allow for the retrospective application of certain Ministerial Instructions, if those regulations and instructions so provide.

Finally, the BIA explicitly provides that a Ministerial Instruction may set the number of applications in an immigration category that will be processed in any year can be zero.

As the media becomes aware of some of the above changes in the BIA much will be written about whether Jason Kenney is centralizing power too much.  Others will write about whether people will still want to apply to immigrate toCanadaif they know that the government may at a future date decide to not process their applications.

Minister Kenney has likely amended IRPA because he has specific policy and program objectives that he believes necessitate the ability to act quickly and decisively.  He clearly believes that Ministerial Instructions, rather than regulatory changes, are the way to achieve this.

However, as noted above, there will be a time when Minister Kenney is not the Minister of Citizenship and Immigration Canada.  There will also be a time when the Conservative Party of Canada is notCanada’s governing party.  The introduction and the expansion of the power to issue Ministerial Instructions will ensure that in the future a New Democratic Party or Liberal Party immigration minister will be able to quickly introduce, change, and effectively cancel immigration streams without having to consult Parliament.  There is no way that any future immigration minister, regardless of political stripe, will give this up this power that Jason Kenney has given them. Canada’s immigration system is not going back.

And that is why I think that the Ministerial Instructions will be Jason Kenney’s most enduring legacy.