The Federal Skilled Workers Program (the “FSWP“) has traditionally been one of Canada’s most popular immigration programs. It is currently one of the three programs that is managed through Immigration, Refugees and Citizenship Canada’s (“IRCC“) Express Entry program.
To be eligible for the FSWP, applicants must meet minimum eligibility criteria, and also get a minimum of 67 out of 100 points in a selection grid.
Minimum Eligibility Criteria
The minimum eligibility criteria to the FSWP are that applicants must:
- Within the 10 years preceding the date of the application for a permanent resident visa, have at least one year of continuous full-time employment experience or the equivalent in continuous part-time employment in one or more occupations that are listed in National Occupational Classification (“NOC“) 0, A or B;
- During that period of employment performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC;
- During that period of employment performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties.
- have completed a language test from a designated testing agency and obtained a minimum of Canadian Language Benchmark 7 in all abilities;
- if they do not have Canadian education credentials, have submitted an “equivalency assessment” relevant to their occupation establishing that they have the equivalent of the minimum education credential required to practice this occupation in Canada.
Definition of “Continuous”
Many people have questions regarding what constitutes “continuous” full-time experience for the purpose of the FSWP. Essentially, the work experience must be:
- at least one year (1,560 hours total / 30 hours per week),
Canadian immigration law allows Canadian citizens and permanent residents to sponsor their common-law partners.
It requires that:
- people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship;
- that the cohabitation during that year be continuous rather than intermittent cohabitation adding up to one year;
- that the relationship be genuine; and
- that the relationship not be entered into to acquire an immigration benefit.
While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted.
After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship. In Chantladze v. Canada (Citizenship and Immigration), 2018 FC 771, Justice Fothergill stated that it was a reviewable error for an officer to consider the reasons why a couple had lived apart after they had previously lived together for one year continuously.
As the Immigration, Refugees and Citizenship Canada guidelines note:
“According to case law, the definition of a common-law partner should be read as “an individual who is (ordinarily) cohabiting.” After the one year period of cohabitation has been established, the partners may live apart for periods of time while still maintaining a common-law relationship. For example, a couple may have been separated due to illness or death of a family member, adverse country conditions (e.g. war, political unrest), or employment or education-related reasons, and therefore are not cohabiting at the time an application is submitted. Despite the break in cohabitation, a common-law relationship exists if the couple has cohabited continuously in a conjugal relationship in the past for at least one year and intend to do so again as soon as possible.Read more ›
Regulation 220.1(1) of the Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada (a) shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies and (b) shall actively pursue their course or program of study.
Non-compliance with this requirement can, subject to certain exceptions that are beyond the scope of this post, result in a person being barred from Canada for one year.
The Immigration, Refugees and Citizenship Canada (“IRCC“) website contains guidelines (the “Guidelines”) on interpreting these requirements.
The guidelines are divided into the following sections:
- Full-time and part-time studies
- Progress toward completion of courses
- Changing institutions or changing programs of study at the same institution
- D. Leave from studies
- E. Deferred enrollment
- F. School closures
- G. Change of status
- H. Spouses or common-law partners of full-time students (C42)
- I. Children of full-time students
- J. Working on or off campus not authorized during any leave from studies
- K. Co-op and internship placements not authorized during any leave from studies
I have reproduced or paraphrased much of the Guidelines below.
A. Full-time and part-time studies
The Guidelines state that at a minimum, students must have part-time status with their institution to be considered to be actively pursuing their studies.
The definition of full-time or part-time varies depending on the educational institution.
Furthermore, the province of Quebec requires students to maintain full-time status with their institution to be considered to be actively pursuing their studies.Read more ›
On December 30, 2018 the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the “CPTPP“) came into effect. The CPTPP will result in it being easier for citizens of countries that have ratified the CPTPP to work in Canada. As of writing, these countries include Australia, Japan, Mexico, New Zealand, Singapore and Vietnam.
The benefits are not the same, however, for all countries.
The categories are:
- Business Visitors;
- After – Sales Services;
- Intra-Corporate Transferees; and
The Business Visitors category applies to all countries that have ratified the CPTPP. As well, permanent residents of Australia and permanent residents of New Zealand may also qualify under this category.
Activities that Business Visitors may perform include:
- Meetings and consultations
- Research and design
- Manufacturing and production
- After-sales or after-lease services
- General services
The CPTPP’s After-Sales Service provisions apply to citizens of Australia, Mexico and New Zealand.
Personnel who possess specialized knowledge essential to a seller’s or lessor’s contractual obligation (such as installers, repairers and maintenance personnel, and supervisors) may enter Canada for the purpose of performing services and training workers to perform services pursuant to a warranty (during the life of the warranty) or other service contract incidentals (during the life of the service agreement)
These activities come from the sale or lease of commercial or industrial equipment or machinery (including computer software) that has been purchased or leased from an enterprise located in a party other than Canada.Read more ›
Given the frequency with which Immigration, Refugees and Citizenship Canada (“IRCC“) updates its checklists, forms and website
it is not surprising that people often find some of IRCC’s content to be
The Federal Court of Canada, citing rule of law principles, has stated that where IRCC content is objectively unclear that flexibility is required. In Lim v. Canada (Minister of Citizenship and Immigration), 2005 FC 657, Justice von Finkenstein stated that:
The actions of CIC in this instance lack common sense. As Muldoon J. so aptly put it in Taei v. Canada (Minister of Employment and Immigration),  F.C.J. No. 293 (dealing with a refugee claim rather than a live-in caregiver) “(t)he rule of law does not require that statutes be read and interpreted in a robotic mindless manner. Common sense has not been abolished either by the Charter or by statute”. It is also useful to recall the admonition of Jerome A.C.J. in Thakorlal Hajariwala v. M.E.I.  2 F.C. 79 that ” the purpose of the statute [then the Immigration Act which is now the Immigration and Refugee Protection Act] is to permit immigration, not to prevent it.”
In Jalota v. Canada (Citizenship and Immigration), 2013 FC 1176, Justice Phelan criticized IRCC for refusing a restoration of student status application because the applicant did not provide financial documents, even though the checklist did not mention such a requirement. Justice Phelan stated:
The Respondent’s own checklist does not ask for any financial information per se as part of a restoration application, although it is listed as a requirement for study permit applications. For restoration applications,Read more ›
Visa officers have the discretion to extend the time limits on visa that have been issued.
The 2018 decision in Austin v. Canada (Citizenship and Immigration) illustrates this point. There, a person was issued a permanent resident visa that expired 35 days after it was issued. The person booked an airline ticket, however, she was unable to depart as scheduled because her car broke down. She booked a new ticket but was not allowed to board a plane to Canada because her visa had expired. She then wrote to Canadian immigration officials asking that they extend the validity period of her visa.
Immigration, Refugees and Citizenship Canada refused, writing that:
An immigrant visa was issued to you with an expiry date of October 25, 2017. The onus was on you to travel prior to the expiry date of your visa or to notify this office if you were unable to travel prior to the date of expiry.
Your medicals have now expired and we are unable to re-open your file.
We regret to advise that your file is now closed and no further processing can be carried out.
The internal Global Case Management System notes further stated that:
FILE REVIEWED Rec’d the following email from applicant. PA was issued COPR valid to 25Oct2017. Satisfied PA rec’d landing docs in time for travel as she indicated she was booked to travel 19Oct2017 but did not travel. No reasonable explanation has been submitted as to why PA did not travel on 19Oct2017. In addition PA did not notify our office until today, two days after the expiry of her COPR that she was unable to travel. PA is not a landed immigrant to date and now 23yrs old so not eligible to be spr’d in the future.Read more ›
A permanent resident can lose their permanent resident status and be banned from Canada if they commit misrepresentation. However, they have a right of appeal to the Immigration Appeal Division (the “IAD“). At the IAD, the permanent resident can argue that the determination that they committed misrepresentation was based on a factual error or mistake in law. They can also argue that there are sufficient humanitarian & compassionate (“H&C“) to warrant relief.
In Wang v. Canada, the Federal Court of Canada set out the following factors (generally known as the “Wang” or the “modified Chieu” factors) to be the appropriate considerations in determining whether there are sufficient H&C considerations to justify not cancelling someone’s permanent resident status and banning them from Canada for five years:
- the seriousness of the misrepresentation leading to the removal order and the circumstances surrounding it;
- the remorsefulness of the permanent residence;
- the length of time spent in Canada and the degree to which the permanent resident is established in Canada;
- the permanent resident’s family in Canada and the impact on the family that removal would cause;
- the best interests of a child directly affected by the decision;
- the support available to the permanent resident in the family and the community; and
- the degree of hardship that would be caused by the permanent resident by removal from Canada, including the conditions in the likely country of removal.
As the IAD noted in Lin v Canada (Minister of Public Safety and Emergency Preparedness), 2017 26505 (CA IRB):
Remorse is defined as deep regret or guilt for a wrong committed,Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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