LMIA Cap on Low Wage Employees

21st Mar 2017 Comments Off on LMIA Cap on Low Wage Employees

Last updated on September 20th, 2018

Last Updated on September 20, 2018 by Steven Meurrens

Canada’s Temporary Foreign Worker Program (the “TFWP“) allows employers to bring foreign workers to Canada to temporarily fill jobs for which qualified Canadians are not available. After the program became increasingly controversial in 2012-13, the Department of Employment and Social Development Canada (“ESDC“) on June 20, 2014 imposed a cap limiting the proportion of low-wage foreign workers that businesses can employ.

How the Cap Works

Employers with a company-wide business size of 10 or more employees are subject to the cap.  The cap percentage is determined for each individual worksite location and is based on paid positions and total hours worked at that worksite.

Employers that are new to the TFWP or returning employers who did not have any foreign workers on staff on June 20, 2014 are capped at 10% low-wage foreign workers for each work location.

The cap, implemented on June 20, 2014, was phased in to provide employers time to transition to a Canadian workforce which means that they are limited to a:

  • 20 percent cap on the number of foreign workers in low-wage positions, or the employer’s established estimated cap (whichever is lower), if the employer hired a TFW in a low-wage position prior to June 20, 2014; or
  • 10 percent cap on the number of foreign workers in low-wage positions if the employers did not employ a TFW in a low-wage position prior to June 20, 2014.

Effectively, companies are limited to a 10% cap on the proportion of low-wage foreign workers that they can have.  The low-wage is based on a province’s median wage,

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Establishing that Someone is a Refugee

19th Mar 2017 Comments Off on Establishing that Someone is a Refugee

Last Updated on March 19, 2017 by Steven Meurrens

Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries.  A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country.

Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website.

In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96.

Past Persecution vs. A Future Fear

It is important to understand that refugees need to have a forward looking fear of returning to their country of origin.  The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution.

In Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, the Federal Court of Appeal explicitly held that a person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasons listed in section 96 of the IRPA and that proof of past persecution for one of the listed reasons may support a finding of fact that the claimant has a well-founded fear of persecution in the future,

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Work Experience Under the FSWP and the CEC

15th Mar 2017 Comments Off on Work Experience Under the FSWP and the CEC

Last updated on June 11th, 2020

Last Updated on June 11, 2020 by Steven Meurrens

In both the Federal Skilled Worker Program, the Canadian Experience Class, and indeed most economic immigration programs, the government of Canada relies on Service Canada’s National Occupational Classification (“NOC“) system to determine eligibility.

In the Canadian Experience Class, for example, subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations (the “IRPR“) set out the job duties that applicants to the Canadian Experience Class must perform in order to meet the requirements of having experience in an eligible NOC.

Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”

In the Federal Skilled Worker Program, meanwhile, s. 75(2)(a)-(c) of the IRPR states:

A foreign national is a skilled worker if

(a) within the 10 years before the date on which their application for a permanent resident visa is made, they have accumulated, over a continuous period, at least one year of full-time work experience, or the equivalent in part-time work, in the occupation identified by the foreign national in their application as their primary occupation, other than a restricted occupation, that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classificationmatrix;

(b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification;

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A44 Reports

15th Mar 2017 Comments Off on A44 Reports

Last updated on December 22nd, 2018

Last Updated on December 22, 2018 by Steven Meurrens

Section 44 of the Immigration and Refugee Protection Act states:

Preparation of report

44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Conditions

(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

Inadmissibility reports look like the following:

The Canada Border Services Agency typically issues statutory declarations explaining the circumstances which lead to the A44 report, which look like this.

These two documents typically form the reason for the A44 report, and should be obtained by those removed in order to determine next steps,

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Service Canada Officers Fettering Discretion

5th Mar 2017 Comments Off on Service Canada Officers Fettering Discretion

Last Updated on March 5, 2017 by Steven Meurrens

As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals.  There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment.  Those who have experience submitting LMIA applications will know that this is not surprising.

Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“)

In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website.  The Federal Court stated that:

While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion.

Justice O’Reilly went on to note that:

  • Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and
  • Because the employer had provided evidence that the Working in Canada website was inaccurate, it was unreasonable for the officer to nonetheless rely on it and to ignore the additional information.

Seven Valleys Transportation Inc. v. Canada (Employment and Social Development), 2017 FC 195 (“Seven Valleys“)

In Seven Valleysan ESDC officer refused an LMIA application solely because the employer advertised with a job requirement that an internal ESDC Wiki deemed excessive,

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The Minimum Necessary Income and Family Class Sponsorships

5th Mar 2017 Comments Off on The Minimum Necessary Income and Family Class Sponsorships

Last updated on March 3rd, 2019

Last Updated on March 3, 2019 by Steven Meurrens

One of the requirements to being a sponsor in both the Family Class and the Spouse or Common-Law Partner in Canada Class is that the sponsor must on the day that the application is submitted and until the application is assessed have a minimum necessary income.

For most types of family sponsorships, the income must be equal to the minimum necessary income, which is statutorily defined as being equal to Statistics Canada Low Income Cutoff (“LICO“). The current LICO requirements are as follows:

Size of Family Unit
Minimum necessary income

1 person (the sponsor)
$24,949

2 persons
$31,061

3 persons
$38,185

4 persons
$46,362

5 persons
$52,583

6 persons
$59,304

7 persons
$66,027

More than 7 persons, for each additional person, add
$6,628

For sponsors seeking to sponsor their parents and/or grandparents, the income must be equal to the minimum necessary income plus 30% for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application. The current requirements are as follows:

Total number of persons you would be responsible for
Minimum income required for the 3 taxation years right before the date of your application

2018
2017
2016

2 persons
$40,379
$39,813
$39,371

3 persons
$49,641
$48,945
$48,404

4 persons
$60,271
$59,426
$58,768

5 persons
$68,358
$67,400
$66,654

6 persons
$77,095
$76,015
$75,174

7 persons
$85,835
$84,631
$83,695

If more than 7 persons, for each additional person, add
$8,740
$8,616
$8,522

Canadians seeking to sponsor their spouses or common-law partners do not need to have a minimum necessary income.

Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act,

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Inconsistent Applications

1st Mar 2017 Comments Off on Inconsistent Applications

Last Updated on March 1, 2017 by Steven Meurrens

There is a slowly developing caselaw on the consequences of inconsistent applications.

In Singh v. Canada, Justice Barnes determined that an officer could not refuse a permanent resident visa because the officer thought that a study permit had been improperly issued.

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Inadmissibility for Violating Human Rights

1st Mar 2017 Comments Off on Inadmissibility for Violating Human Rights

Last updated on January 21st, 2020

Last Updated on January 21, 2020 by Steven Meurrens

Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:

Human or international rights violations

35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or

(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.

Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below.  More recent jurisprudence can be found throughout my blog, but the IRCC document is a very useful summary.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  

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