Accelerated Labour Market Opinions

30th Apr 2012 Comments Off on Accelerated Labour Market Opinions

Last Updated on April 30, 2012 by Steven Meurrens

On April 25, 2012, Human Resources and Skills Development Canada (“Service Canada”) launched two initiatives that will significantly change the process by which Canadian employers interested in hiring foreign workers apply for Labour Market Opinions (“LMO”).   These are the Accelerated Labour Market Opinion Initiative (“A-LMO”) and the introduction of online applications.

The A-LMO

The purpose of the A-LMO is to reduce LMO processing times.  Service Canada has indicated that their objective is that A-LMO applications will be processed in 10 business days, a significant reduction from the current average LMO processing time of 2-4 months.

In addition to reduced processing times, the A-LMO will also feature:

  • A reduction in the amount of documentation that employers have to submit to Service Canada when they apply for their A-LMO.  Significantly, employers will no longer have to submit proof of recruitment.
  • Flexibility on the prevailing wage.  A wage of up to 15% less than the prevailing wage for an occupation will be accepted provided that the employer pays similar wages to Canadians and permanent residents employed in the same occupation.
  • A waiver of the mandatory in-depth interview.

Eligibility

To be eligible to participate in the A-LMO, an employer must:

  • Have been issued at least 1 positive LMO within the last 2 years;
  • Have a clean record of compliance with the Temporary Foreign Worker Program within the last 2 years;
  • Not have been the subject of an investigation, infraction, or a serious complaint; and
  • Not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.

Eligible employers can only apply under the A-LMO if they are trying to fill a high-skilled position classified under the National Occupational Classification skill type 0,

 » Read more about: Accelerated Labour Market Opinions  »

Read more ›

Ministerial Instructions will be Jason Kenney’s Greatest Legacy

28th Apr 2012 Comments Off on Ministerial Instructions will be Jason Kenney’s Greatest Legacy

Last Updated on April 28, 2012 by Steven Meurrens

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. 

 » Read more about: Ministerial Instructions will be Jason Kenney’s Greatest Legacy  »

Read more ›

Changes to Language Requirements

20th Apr 2012 Comments Off on Changes to Language Requirements

Last Updated on April 20, 2012 by Steven Meurrens

New Language Requirements for Citizenship and PNP Applications

Citizenship and Immigration Canada (“CIC”) has introduced new language requirements for citizenship applications and certain provincial nominee applications.  For citizenship applications, the changes will introduce objective language requirements for most applicantions.  For certain provincial nominee program (“PNP”) applications, the changes will introduce mandatory language testing.

The Citizenship Langugage Requirements  

Applicants for Canadian citizenship are required to demonstrate that they have an adequate knowledge of either English or French.  Currently, this is done through a multiple choice written test known as the Citizenship Exam, which also tests knowledge of Canada and the responsibilities of citizenship.

On April 21, 2012, the Government of Canada introduced regulatory changes that when they take affect will require that citizenship applicants enclose proof that they meet the language requirement with their citizenship application.  Acceptable means of proof will include:

  • A language test result from an authorized testing agency;
  • Evidence of completion of secondary or post-secondary education in English or French; or
  • Evidence of completion and achievement of a certain level in a government-funded language training program.

Applicants submitting test results from an authorized testing agency will have to achieve a minimum standard of Canadian Language Benchmark (“CLB”) 4 in English or Niveaux de comeptence linguistique canadiens (“NCLC”) level 4 in French.  The areas that will be tested are speaking and listening.  For those familiar with the International English Language Testing System (“IELTS”), currently required for many permanent residence applications, this translates into a 4 in each category.

Applicants who provided mandatory language testing results as part of their permanence residence applications can submit those test results with their citizenship application,

 » Read more about: Changes to Language Requirements  »

Read more ›
Skilled Worker Non-Processing Letters Going Out

Skilled Worker Non-Processing Letters Going Out

18th Apr 2012 Comments Off on Skilled Worker Non-Processing Letters Going Out

Last Updated on April 18, 2012 by Steven Meurrens

And so it begins.  Citizenship and Immigration Canada has begun sending letters to Federal Skilled Worker Applicants who applied prior to February 27, 2008, that their applications will not be processed, and that they will soon be contacted regarding a refund.

Regardless of what one thinks of the merits of cancelling the backlog (I am sympathetic to both sides’ arguments), the way in which the Government of Canada is executing its decision to cancel the applications is problematic.  Indeed, I believe that the government is acting in a way that will lead to court intervention.

In brief, the government is cancelling these applications without having yet passed any legislative changes permitting them to do.  The Immigration and Refugee Protection Act and its Regulations still state that the affected applicants are eligible to immigrate to Canada.

From what I can tell, the Minister is currently governing through press release.  Ironically, the press release notes that the cancellation and refund of the above applications will occur as a result of “proposed legislation”.

http://www.cic.gc.ca/english/department/media/releases/2012/2012-03-30a.asp

The proposed legislation has not yet been introduced either in the House of Commons or in the Canada Gazette. Despite that, Citizenship and Immigration Canada is already cancelling applications.

Press releases cannot trump statute, and I predict an upcoming wave of successful litigation.

 » Read more about: Skilled Worker Non-Processing Letters Going Out  »

Read more ›

Wilfred Laurier on Immigration [Updated – Correction]

14th Apr 2012 Comments Off on Wilfred Laurier on Immigration [Updated – Correction]

Last Updated on April 14, 2012 by Steven Meurrens

The above picture of Wilfred Laurier, a former Prime Minister of Canada and member of the Liberal Party of Canada, is currently making the rounds on the internet accompanied by his famous passage:

In the first place, we should insist that if the immigrant who comes here in good faith becomes a Canadian and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet a Canadian, and nothing but a Canadian… There can be no divided allegiance here. Any man who says he is a Canadian, but something else also, isn’t a Canadian at all. We have room for but one flag, the Canadian flag… And we have room for but one sole loyalty and that is a loyalty to the Canadian people.

People that are spreading this and citing this passage about undivided loyalty with fervour are I’m sure thinking of immigrants from certain countries with value systems very different to ours.  However, I wonder if they have actually considered the policy implication of the above passage – which is obviously whether Canada should ban its citizens from being dual (or triple) citizens?

What do you think?  Should Brett Hull, Kaya Jones, John Aimers, Peter Jennings, Megan Follows, Brian Burke, Jim Carrey, etc. have to choose?

And, if you believe in what Mr. Laurier said, do we not have room in Canada for the above individuals?

[UPDATE]

As was recently pointed out to me, in attributing the above quote and picture to Wilfred Laurier I fell for a popular myth circulating in certain circles.

 » Read more about: Wilfred Laurier on Immigration [Updated – Correction]  »

Read more ›

SCC Replaces the Oakes Test with the Reasonableness Standard

1st Apr 2012 Comments Off on SCC Replaces the Oakes Test with the Reasonableness Standard

Last Updated on April 1, 2012 by Steven Meurrens

Over the last several years, the Supreme Court of Canada has released numerous administrative law decisions where it found that the reasonableness standard of review should replace other standards.  On March 22nd 2012, in Dore v. Burraeu du Quebec, 2012 SCC 12, the Court extended this trend to proclaiming that the reasonableness standard should replace the Oakes test when determining whether an administrative tribunal’s action which limited a right under Canada’s Charter of Rights and Freedoms could nonetheless withstand s. 1 analysis.

Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society.  The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective.  If it is, then the government must demonstrate that the means to achieve its objective are proportional.  Proportionality requires that:

  1. The means be rationally connected to the government’s pressing and substantial objective;
  2. That the means to achieve the objective involve a minimal impairment of Charter rights; and
  3. There must be proportionality between the infringement and the objective.

 » Read more about: SCC Replaces the Oakes Test with the Reasonableness Standard  »

Read more ›