Last updated on April 2nd, 2019
Much of Canada’s immigration system is based on Human Resources and Skills Development Canada (“Service Canada’s“) National Occupational Classification (“NOC“) system. Economic class applicants generally need to understand the NOC system because the success of their applications will depend on them demonstrating that they have qualifying experience or pre-arranged employment in certain NOCs. Employers submitting Labour Market Impact Assessment applications to the Ministry of Economic and Social Development Canada (“ESDC“) need to know which NOCs their vacant positions fall under because this will determine the respective prevailing wage and recruitment requirements. Indeed, it is arguable that international graduates should pay attention to the NOC of their first jobs out of post-secondary school because only experience in certain NOCs will count towards immigration.Read more ›
My decision to publish e-mail exchanges between immigration representatives and Citizenship and Immigration Canada which I received through Access to Information Act requests has been met very favourably by blog readers.
I am now expanding this to internal correspondence between Temporary Foreign Worker Program officers at Service Canada and Business Expertise Consultants.
The following is an exchange between a Service Canada officer and a Business Expertise Consultant regarding who can be the employer contact in a LMO application. My thoughts on the exchange are at the bottom of the reproduction.
Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.
███████ has a 3’d party ███████ and his mailing address is ███████. This ID has 26 pages of activity in FWS, the last of which is a confirmation on 2011-10-12.
This 3’d party ID has a note dated, 2008/11/21, which states, “November 20, 08 Phone call to ███████ Employer states that the signature on the application, third party representative form and employment contract was not hers.” The SF note for the file in question, SF ███████ states, “Spoke to ER Nov 20, 08. After attempting to verify application details the employer, ███████ stated that she was unaware of the employment contract and any of her responsibilities,Read more ›
The Federal Court has ruled that a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development (“Service Canada“) that an arranged offer of employment is genuine.
In Ghazeleh v. Canada (Citizenship and Immigration), the Court had to determine whether a visa officer erred in awarding a Federal Skilled Worker Class applicant zero points for Arranged Employment because the officer was not satisfied by Service Canada’s Arranged Employment Opinion (“AEO“). Specifically, the officer had concerns with the employer’s ability to employ the applicant as the company was losing money. The applicant was unable to alleviate the officer of his concerns.
At Federal Court, the applicant’s lawyer argued that the visa officer erred in overriding the AEO.
The Court, however, disagreed, and stated that Service Canada’s opinion is only the first step in the validation of an employment offer, and does not end the inquiry. Citing Bellido v. Canada (Minister of Citizenship and Immigration), the Court also noted:
HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.
In this case, the visa officer was not satisfied that the applicant could perform the work sought because the officer concluded that the employer’s financial circumstances meant that it could not even pay the applicant to do work.
The Court described the division of responsibilities between Citizenship and Immigration Canada and Service Canada as being:
It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa. To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister’s statutory obligations under the IRPA or a fettering of the Minister’s discretion.Read more ›