Restoration of Status

30th Jun 2014 Comments Off on Restoration of Status

Last updated on October 25th, 2019

If a visitor, worker, or student loses their status in Canada they may apply to restore their status.  Such applications are referred to as “restoration applications.”  Section 182 of the Immigration and Refugee Protection Regulations provides that:

182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

Immigration, Refugees and Citizenship Canada Guidelines (the “Guidelines“) provide that if an applicant applies to extend their temporary resident status after their temporary resident status expires, but within the 90-day restoration period, then the Case Processing Centre – Edmonton will inform them that they must also apply for restoration of status.  The applicant will be given 90 days from the date of notification to submit their restoration application.  This is an important point to note, as many people mistakenly assume that the 90-day restoration period only starts when a person’s work permit, visitor record, or study permit expires.  Rather, it is when their temporary resident status expires, which includes implied status.  Pursuant to the Federal Court of Canada decision in Shekhtman v. Canada (Citizenship and Immigration), IRCC must show that it must actually sent the decision.

The Guidelines also provides that restoration cannot be granted at Canadian ports of entry.

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Government of Canada Overhauls the Temporary Foreign Worker Program

23rd Jun 2014 Comments Off on Government of Canada Overhauls the Temporary Foreign Worker Program

On June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”).  The changes will affect all employers of Temporary Foreign Workers (“TFWs”) in Canada.  Many of the changes take effect immediately, with the remainder being phased in over the next year in a half.
 
The reforms are comprehensive, and include the following:

  • Labour Market Impact Assessment Program
    • New Labour Market Information Assessment (“LMIA”) Replaces the Labour Market Opinion (“LMO”)
    • LMIA Application Fee of $1,000
    • Guaranteed 10-Day Processing For Certain Occupations
    • Dividing LMIAs into High-Wage and Low-Wage Positions
    • Cap on Low-Wage TFWs for Individual Companies
    • Refusing Low-Skilled LMIA Applications in Areas of High Unemployment in Some Occupations
    • Reducing the Duration of Low-Wage Work Permits
    • Introduction of Transition Plans for High-Wage Positions
  • Stronger Enforcement and Tougher Penalties
    • Increasing the Number and Scope of Inspections
    • Monetary Fines for Employers Who Break the Rules
  • International Mobility Programs (“IMP”)
    • IMP Replacing LMO-Exempt Work Permit Program
    • New Fee and Employer Compliance System
    • New Privilege Fee for Open Work Permit Applicants
    • Amending Provincial Annexes
    • International Experience Canada Program Being Restructured
    • Intra-Company Transfer Program – New Rules for Specialized Knowledge Applicants

As noted above, the Labour Market Opinion (“LMO”) program is being renamed the Labour Market Impact Assessment (“LMIA”).  As well, the International Mobility Program (“IMP”) is replacing work permit applications which were previously classified as LMO-exempt.   
 
Please note that what follows below provides only a summary of the changes. 

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ETA Regulations Announced

22nd Jun 2014 Comments Off on ETA Regulations Announced

Last updated on September 15th, 2018

On August 1, 2015, Canada will adopt an Electronic Travel Authorization (“eTA“) program that is similar to the Electronic System for Travel Authorization (“ESTA“) that the United States currently has, and the Electronic Travel Authority that Australia has.  In order to minimize impacts on the travelling public and Canadian travel and tourism industries, eTA-required travellers will be exempted from this new entry requirement until March 15, 2016.

The eTA will impact nearly all travellers to Canada who do not have to apply for Temporary Resident Visas (“TRV“) to visit Canada.  According to the Gazette, TRV-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada. Citizenship and Immigration Canada (“CIC“) does not currently screen these individuals for admissibility until they arrive at a Canadian port of entry (“POE“). Rather, TRV-exempt nationals are examined by the Canada Border Services Agency (“CBSA“) only upon arrival at a POE .  As noted in the The Canadian Immigrant excerpt above, the eTA will change this. 

However, on June 21, 2014, the Government of Canada (“GoC“) in the Canada Gazette (the “Gazette“) published proposed amendments to the Immigration and Refugee Protection Regulations (“IRPR“) pertaining to the eTA. On April 22, 2015, the final version of the IRPR amendments were published

The proposed amendments to IRPR:

  • create the regulatory requirement for the eTA;
  • establish the eTA application procedures;
  • specify when an eTA expires and when it can be cancelled;
  • set the fee that is payable for the processing of an eTA application; and
  • create exemptions from the requirement to obtain an eTA.

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World Citizenship by Descent

11th Jun 2014 Comments Off on World Citizenship by Descent

The authors of Free People Search have posted the following graphic on their website which provides a useful overview of numerous countries’ “citizenship by descent” law.

Second Passport

A previous post of mine which discusses the limitations on citizenship by descent in Canada can be found here.

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Intra-Company Transfers – Specialized Knowledge

10th Jun 2014 Comments Off on Intra-Company Transfers – Specialized Knowledge

Last updated on September 5th, 2019

On June 9, 2014, Immigration, Refugees and Citizenship Canada published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“).  OB-575 introduced more stringent requirements to the Intra-Company Transferee  – Specialized Knowledge program.  Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage.

Specialized Knowledge

In order to qualify as an Intracompany Transeferee (“ICT“) – Specialized Knowledge applicantsmust  demonstrate a high degree of both proprietary knowledge and advanced expertise.  Specialized knowledge is unique and uncommon, and according to the Immigration, Refugees and Citizenship Canada (“IRCC“) website “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.”  The onus is on applicants to provide evidence that they meet these requirements.

Proprietary knowledge is company-specific expertise related to a company’s product or service.  It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although IRCC does not mandate that “advanced proprietary knowledge” is required, it states that:

Advanced proprietary knowledge would require an applicant to demonstrate:

    • uncommon knowledge of the host firm’s products or services and its application in international markets; or
    • an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.

An advanced level of expertise requires specialized knowledge gained through significant and recent (defined as within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.

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Service Canada Ends the International Graduate LMO

5th Jun 2014 Comments Off on Service Canada Ends the International Graduate LMO

More to follow..

http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/students/index.shtml

Effective immediately, the Department is ending the Recruitment and Advertisement Exemption for employers wishing to hire international students who have graduated from recognized Canadian post-secondary institutions and whose Post-Graduate Work Permit (PGWP) is expiring. Employers submitting a labour market opinion (LMO) to hire an individual transitioning from the PGWP must now ensure that they meet all of the Program requirements for the applicable stream:

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