Impacts of Budget 2013 on Immigration

21st Mar 2013 Comments Off on Impacts of Budget 2013 on Immigration

The Government of Canada has released its budget for 2013 (“Budget 2013″).  Budget 2013 contains several announcements of changes to immigration programs which the Government of Canada will introduce this year, including (my editorial comments in maroon):

  • Providing $42-million in funding to support enhanced program capacity within the Temporary Resident program, and giving the Minister of Citizenship and Immigration Canada (the “Minister“) the ability to set fees in a timely and efficient manner.  (Budget 2013 actually refers to the Minister of Citizenship and Immigration Canada as the Minister of Citizenship, Immigration and Multiculturalism.  I’m not sure if this means that the Department is about to change its name or if it is a typo.)
  • Providing $44-million in funding over two years to improve the processing of Citizenship applications, and allowing the Minister to set fees in a timely and efficient manner. (This is fantastic.  Processing times have ballooned to more than four years in many cases.)
  • Amend the Immigration and Refugee Protection Regulations to restrict the identification of non-official languages as job requirements when hiring through the Temporary Foreign Worker process.  (Not sure about this.. in a global economy some positions require fluency in languages other than English or French.) 
  • Introduce processing fees for Labour Market Opinion applications. (I’ve never understood why this was free.  In 2012 Service Canada processed 112,897 LMO applications for free.  An application fee of say $100 would have saved taxpayers over $10-million.) 
  • Increase the recruitment efforts that employers must make to hire Canadians before they will be eligible to apply for temporary foreign workers (presumably this means Labour Market Opinions), including increasing the length and reach of advertising requirements.
  • Assist employers who employ foreign workers to find ways to ensure that they have a plan to transition to a Canadian workforce over time. 

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Service Canada Regional Reference #6 – Lodge Owners

19th Mar 2013 Comments Off on Service Canada Regional Reference #6 – Lodge Owners

The document below is Service Canada Regional Reference Material – Reference #6 – Lodge Owners, released on November 14, 2012 (“Reference #6“).

Reference #6 provides guidance to Service Canada officers regarding the processing of Labour Market Opinions for partial Owner/Operator Labour Market Opinions where the business is a hunting, fishing, or leisure lodge, camp, or resort.

It recommends that officers approve applications where the employment of the partial Owner / Operator results in job creation for Canadians and permanent residents.  However, where the employment of the partial Owner / Operator does not result in job creation for Canadians and permanent residents, it recommends refusal.

Please note that Reference #6 is a copy of an official work by the Government of Canada which was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  While I believe that Regional Reference #6  is still current, I cannot be assured of this.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada


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Who Should Consider the Federal Skilled Trades Class?

18th Mar 2013 Comments Off on Who Should Consider the Federal Skilled Trades Class?

(The following is an article that I wrote for the March 2013 edition of Canadian Immigrant Magazine)

On January 2, 2013, Citizenship and Immigration Canada (“CIC”) opened the Federal Skilled Trades Program (“FSTP”).  CIC will process up to 3,000 FSTP applications in 2013.  For certain people, the FSTP will be an attractive alternative to those who fall through the cracks of the Federal Skilled Worker Program (the “Skilled Worker Program”) and the Canadian Experience Class (“CEC”).

To be eligible for the FSTP, applicants must meet five requirements.

First, they must have twenty-four months of work experience in an eligible skilled trade during the five year period preceding their application.  CIC has designated forty-three trades as being eligible for the program.  Of these, seventeen occupations are capped at 100 applications.  Applicants will accordingly need to check the CIC website to see whether the quota has been reached for their occupation prior to applying.

Second, applicants must have an offer of continuous full-time employment in Canada from up to two employers for a total period of at least one year in their skilled trade.  As “full-time” means at least thirty hours of week, applicants could be eligible if they obtain offers from two employers who provide fifteen hours each per week.  The effect of this requirement is that most FSTP applicants will have to obtain job offers from employers who have been issued positive Labour Market Opinions from Human Resources and Skills Development Canada (“Service Canada”).  Alternatively, applicants do not need a job offer if they possess a Certificate of Qualification from a provincial or territorial Apprenticeship Authority.

Third, applicants will have to satisfy the employment requirements of their skilled trade as described by Service Canada’s National Occupational Classification system.

Fourth,

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CIC Operational Bulletin 503 – Volunteering on a Farm

6th Mar 2013 Comments Off on CIC Operational Bulletin 503 – Volunteering on a Farm

 

Citizenship and Immigration Canada (“CIC“) has released Operational Bulletin 503 – Clarification of Volunteering in Relation to Farm Work (“OB-503“).  The Temporary Foreign Worker Manual provides that if a tourist wishes to stay on a family farm and work part time just for room and board for a short period then this is not considered work, and a work permit is not required.  Work on a farm that is expected to last beyond four weeks, however, requires a work permit.

OB-503 elaborates on this.  It specifies that the volunteering on the farm must be incidental to the reason the individual seeks to enter Canada.  Farm work cannot be the main reason for entering Canada.  An individual must have other plans for the majority of their time in Canada (such as tourism, visiting family, visiting friends, etc.)

It also specifies that if the foreign national seeks to volunteer at a commercial farm, than a work permit is required.  A commercial farm is a commercial venture undertaken with the expectation of profit.  A non-commercial farm generally means a farm where the farm family provides much of the capital and labour for the farm, and where the production of agricultural products is to provide for the basic needs of the family, with little extra to sell for the profit of the family. It is commonly known as “subsistence” or “family” farming.

OB-503 then lists the following factors which are relevant to determining whether a work permit supported by a Labour Market Opinion is required.

  • Is the destination a farm (produces an agricultural product – plant or animal) or is it another form of business such as an ecotourism centre, bed and breakfast (B & B), etc.  The latter are considered ‘commercial enterprises,’ and volunteering at them will require a work permit supported by a Labour Market Opinion.

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Can People Working Without Status Enforce Contracts?

10th Aug 2012 Comments Off on Can People Working Without Status Enforce Contracts?

The Ontario Labour Relations Board (the “OLRB“) has just released a fascinating decision which involves the interplay between immigration and employment law.  The case involved a German foreign national who entered into an employment agreement with Essar Steel Algoma (the “Employer“) prior to Citizenship and Immigration Canada (“CIC“) issuing him a work permit to work for the company.  Things did not work out between the Employer and the foreign national, and the Employer terminated the relationship.  The United Steelworks of America (the “Union“) filed a grievance, and the issue of when the foreign national became an employee of the Employer arose.

The OLRB decision involved numerous factual determinations involving contested issues of when the foreign national alerted the Employer that he was a foreign national who required a work permit, whether the Employer promised the foreign national that obtaining a Labour Market Opinion (“LMO“) would be easy, and whether the Employer rescinded the foreign worker’s job offer upon the LMO being rejected.

Lurking in the background of these factual disputes was the legal issue of “when does a foreign national become an employee of an employer?”

The Union argued that as a matter of contract law a person becomes an employee of an employer at the instant when he accepts an unconditional offer of employment, even if the offer contemplates that he will not actually commence work for a period of time.  The Union further argued that there was no necessity for the person hired to have actually started work in order to be considered an employee.

The Employer argued that its employment agreement with the foreign national was illegal and unenforceable by reason of the foreign worker’s lack of a valid work permit. It further argued that the foreign national could not have accepted the offer because he did not have a work permit.

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