The Department of Employment and Social Development’s (“ESDC“) Primary Agricultural Stream allows employers to hire temporary foreign workers (“TFWs“) for a maximum period of 24 months when Canadians and permanent residents are not available. The program was created to reduce differences between the Seasonal Agricultural Workers Program (“SAWP“) and the regular Labour Market Impact Assessment (“LMIA“) stream. Overview of LMIAs Under the Temporary Foreign Worker Program ESDC reviews LMIA applications to assess the likely impact that foreign workers will have on the Canadian labour market. Immigration, Refugees and Citizenship Canada then generally processes work permit applicaitons submitted by foreign nationals who want to work in Canada. IRCC ensures that program requirements are met, and assesses the admissibility of applicants. The Canada Border Services Agency (“CBSA”) examines foreign nationals at the time of entry and determines whether they may enter Canada. Agricultural LMIAs The Primary Agricultural Stream applies to TFWs entering Canada from any country. Information can be found on the ESDC website here: http://www.esdc.gc.ca/en/foreign_workers/hire/agricultural/overview.page In brief, Primary Agriculture is defined as work duties that must: be performed within the boundaries of a farm, nursery or greenhouse involve at least one activity, such as: operation of agricultural machinery, boarding, care, breeding, sanitation or … Read More
LMIAs for Concession Booth Owner Operators
The Department of Employment and Social Development Canada has special Labour Market Impact Assessment rules for concession booth operators. As per the Guidelines, concession both operators, within the specific context of major touring productions / shows (eg. Disney on ICe, Monster Jam, Ringling Brothers) are classified as National Occupational Classification 0621 – Retail Trade Managers. Concession booth operators are responsible for planning, organizing, directing, controlling and evaluating the operations of establishments selling merchandise. For concession booth owners / operators / managers working in conjunction with major touring productions / shows, the foreign workers own and operate concession booths as sub-contractors of the production company. They: are trained in specific contractual standards on a range of topics, e.g. product knowledge, sales techniques, security; and may be required to purchase minimum quotas of licensed products. At these events, concession sales represent a signficant revenue stream which supports the viability of the main production / show. LMIAs The ESDC guidelines state that officers must base their assessment on whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents. LMIA applications for concession both owners / operators associated with major touring productions such … Read More
LMIAs – The Skills Transfer Factor
Regulation 203(3)(b) of the Immigration and Refugee Protection Regulations (the “IRPR“) states: (3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors: (b) whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents; The Temporary Foreign Worker Manual states that the following principles should guide the assessment of whether the employment of a foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents. First, an officer conducting an analyis of a Labour Market Impact Assessment (an “LMIA”) application should reflect a reasonable and balanced approach ensuring that officers do not base their decision solely on the outcome of one of the seven labour market factors. An employer can receive a positive LMIA even if this factor is assessed to … Read More
Open Spousal Work Permits and Marriage Genuineness
While the assessment of the bona fides of a marriage has long been a requirement in Canada’s family reunification programs, it has traditionally not been a significant factor in temporary residence applications. This has recently changed, especially for those submitting applications to Canadian visa posts in India, and at the start of 2020 there were numerous Federal Court of Canada decisions involving refusals of open spousal work permit applications because of concerns over the genuineness of marriages. Many applicants were also barred from entering Canada for five years due to misrepresentation. Eligibility for Open Spousal Work Permits According to the Temporary Foreign Worker Guidelines, a dependent spouse or common-law partner is eligible to apply for an open work permit if the principal applicant: holds a work permit that is valid for a period of at least 6 months, or, if working in a work permit exempt position presents evidence that they will be working for a minimum of 6 months; is employed in an occupation that falls within National Occupational Classification (NOC) skill type 0 (management occupations) or skill level A or B; and physically resides or plans to physically reside in Canada while working. The principal foreign worker may be employed … Read More
Low Salaries and the Canadian Experience Class
Many applicants often ask whether low salaries can result in Canadian Experience Class refusals. Qin v. Canada The leading case on the issue of whether low salaries can result in Canadian Experience Class (“CEC“) refusals is Qin v. Canada (Citizenship and Immigration Canada), 2013 FCA 263. There, the Federal Court 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 CEC. Neither the Immigration and Refugee Protection Regulations (the “Regulations“) nor the Immigration, Refugees and Citizenship 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 … Read More
COVID-19 and Canadian Immigration
In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada. These include: Prohibiting Symptomatic Individuals from Entering Canada Restricting who can Travel to Canada from the United States of America Restricting who can Travel to Canada Internationally Masks During Travel and Self-Isolation Upon Arrival into Canada Suspending the Processing of Certain Temporary Residence Applications Providing Flexibility for Students Introducing new Rules for Employers of Foreign Workers Introducing a new Ground of Inadmissibility for Failure to Self-Isolate Not Returning Incomplete Permanent Residence Applications Suspending the Collection of Biometrics Suspending Immigration and Refugee Board Hearings Suspending Federal Court Timelines Please note that the Canadian government is expected to amend its policies as needed in the coming weeks and months and as such we ask that you contact us for advice before relying on the information provided in this memo. Note also that validity of these orders may be extended or cancelled at any time. PROHIBITING SYMPTOMATIC INDIVIDUALS FROM ENTERING CANADA On April 17, 2020 Transport Canada enacted Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 6. It provides that any persons exhibiting … Read More
Visiting Professors and Work Permits
Regulation 205(b) of the Immigration and Refugee Protection Regulations provides that a work permit may be issued under section 200 to a foreign national who intends to perform work that would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries. The Immigration, Refugees and Citizenship Canada Guidelines (the “Guidelines”) state that visiting professors may be issued work permits pursuant to R205(b). Eligibility To be eligible, an applicant must: be applying for a work permit of not more than two academic years; to take a position with a post-secondary institution; and retain their position abroad. Visiting professors may also include those on sabbatical who are doing collaborative research with a Canadian post-secondary institution. The term “retain their position abroad” means that the professor must maintaing their employment abroad as a professor. Extensions Work permits for visiting professors are authorized for a maximum period of two academic years. Visiting professors are not eligible to extend their work permits under this category, and their employers must apply for a Labour Market Impact Assessment to extend their stay.
Remorse
Whether an individual is remorseful is a factor in assessing humanitarian & compassionate considerations. In Pu v Canada (Citizenship and Immigration), 2018 FC 600 Justice Diner held that: With respect to remorse, the IAD concluded that the Applicant’s remorse was not genuine principally because (a) she had continued to misrepresent her position in 2009, and (b) at the IAD hearing she had attempted to deflect responsibility for her earlier actions. The IAD acknowledged the Applicant’s expressions of remorse at the appeal, but found that she had had since 2009 to take responsibility for her actions, and that the Applicant was ultimately remorseful only for having been caught at the hearing — several years after her initial interview with CBSA, during which she again misrepresented the circumstances of the marriage. Although the Applicant disagrees that she deflected responsibility at the IAD appeal, I am of the view that the IAD’s findings were reasonably open to it based on the evidence before it. I also note that the IAD’s reasoning is consistent with other areas of law where late-stage accountability can weigh significantly against a party who seeks discretionary relief. To conclude on this issue, I will cite from the IAD’s comments … Read More
Applying to Immigrate During COVID19
During the last two weeks of March, 2020, the Government of Canada implemented many measures in response to the COVID19 pandemic. In the immigration context, these measures included travel bans, the suspension of biometrics and the transition of most Immigration, Refugees and Citizenship Canada (“IRCC”) officers to remote work. The changes were frequent, dramatic and difficult to keep up with. They have left a lot of prospective immigrants wondering what exactly is open with regards to Canada’s immigration programs. Please note that this article was written on April 1, 2020. Travel Bans Canada is currently denying boarding to most foreign nationals on flights to Canada. There are, however, numerous exemptions to this. First, individuals who are travelling from the United States who have been in the United States for at least 14 days before they try to travel to Canada by land, sea or air, can travel to Canada if they are asymptomatic. Such individuals must show that they are coming to Canada for essential reasons and not for reasons that are optional or discretionary, such as tourism, recreation or entertainment. Second, all temporary foreign workers, as well as international students who have a valid … Read More
H&C – Past Mistreatment
A quick post today as there is alot going on due to the corona virus, but Justice Annis just released an interesting decision in Pryce v. Canada where he certified the following question: In the context of a request for humanitarian and compassionate considerations under subsection 25 (1) of IRPA, must an officer consider evidence of past hardship of unconscionable mistreatment of an applicant and her children, not recurring or arising on removal, and not cited as a factor in the Guidelines, but that may accord with the principles in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338 adopted in Kanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61, even if the issue has not been explicitly raised by the applicant as a relevant factor for consideration? If not, may the applications judge raise the question as a new issue in accordance with the principles of R. v Mian, 2014 SCC 54?