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