Archive for the ‘Canadian Immigration’ Category

Canadian Electronic Travel Authorization (eTA) Regulations Effective as of August 1, 2015

Henry Chang | May 12, 2015 in Canadian Immigration | Comments (0)

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On January 12, 2014, I previously reported that Citizenship and Immigration Canada (“CIC”) had published a Notice of Intent in the Canada Gazette. This Notice of Intent indicated CIC’s intention to introduce an Electronic Travel Authorization (“eTA”) Program in Canada.

The eTA program is a result of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan (the “Action Plan”).  The Action Plan requires Canada and the United States to establish a common approach to screening visa-exempt foreign nationals, in order to identify threats before they arrive in the North American perimeter.  The eTA Program will be similar to the Electronic System for Travel Authorization (“ESTA”) Program, which currently applies to foreign nationals who enter the United States under the Visa Waiver Program.

On April 1, 2015, CIC published regulations (the “eTA Regulations”) in the Canada Gazette.  These eTA Regulations will come into force at 12:00 p.m. Eastern time, on August 1, 2015.

At that time, the online application will be available and eTA processing will begin.  However, in order to minimize impacts on the travelling public, travelers will be exempted from the eTA requirement until March 15, 2016.  In other words, CIC will begin accepting online eTA applications on August 1, 2015, but travelers will not actually be barred from entering Canada until March 15, 2016.

The normal procedure to apply for an eTA will be through the online application form.  However, persons with physical or mental disabilities will be allowed to submit an application by another means that is made available for that purpose, such as a paper application form.

As the eTA Program is only intended to apply to visa-exempt applicants, a foreign national who holds a temporary resident visa is not required to also obtain an eTA.  Further, in order to reduce the duplication of information to be provided by visa-exempt foreign nationals, the eTA Regulations consider a visa-exempt foreign national’s application for a work permit or a study permit to constitute an application for an eTA.   As a result, visa-exempt applicants who apply for a work permit or study permit will not need to obtain an eTA.

Applicants will pay a $7.00 CAD processing fee electronically in connection with their online eTA application.  In circumstances where another application process is used, the fee will be paid when they submit their application.  Visa-exempt foreign national who are applying for a work permit or study permit will be exempted from this fee.

An eTA will be valid for five years from the day on which it is issued or until the applicant’s passport or travel document expires, whichever comes first.  The eTA Regulations also provide an officer with the ability to cancel an eTA that was issued to a foreign national if the officer determines that the foreign national is inadmissible or if the foreign national became subject to a declaration made by the Minister under the Immigration and Refugee Protection Act.

According to the new R7.1(3), the following individuals will be exempt from the requirement to obtain an eTA before applying for admission to Canada:

  • Her Majesty in right of Canada and any member of the Royal Family
  • A national of the United States;
  • A foreign national referred to in R190(2)(a) [a foreign national who holds hold a passport that contains a diplomatic acceptance, a consular acceptance or an official acceptance issued by the Chief of Protocol for the Department of Foreign Affairs and International Trade on behalf of the Government of Canada and are a properly accredited diplomat, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies, or of any international organization of which Canada is a member];
  • A foreign national seeking to enter and remain in Canada solely: (i) as a member of a crew of a means of transportation that may be used for transportation by air or to become a member of such a crew, or (ii) to transit through Canada after working, or to work, as a member of a crew of a means of transportation that may be used for transportation by air, if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
  • A citizen of France who is a resident of St. Pierre and Miquelon who seeks to enter Canada directly from St. Pierre and Miquelon; and
  • A foreign national referred to in R190(3)(b) [a foreign national who seeks to transit through Canada as a passenger on a flight stopping in Canada for the sole purpose of refuelling and: (i) they are in possession of the documents required in order to enter the United States and their flight is bound for that country, or (ii) they were lawfully admitted to the United States and their flight originated in that country], R190(3)(b.1) [a foreign national who seeks to transit through Canada as a passenger on a flight that, owing to an emergency or other unforeseen circumstances, makes an unscheduled stop in Canada], R190(3)(c) [a foreign national who seeks to transit through Canada as a passenger on a flight if the foreign national: (i) is transported by a commercial transporter and there is a memorandum of understanding in effect between the Minister and the commercial transporter concerning the transit of passengers through Canada without a Canadian visa, (ii) holds a passport or travel document that was issued by the country of which the foreign national is a citizen or national and that country is listed in the memorandum of understanding, and (iii) is in possession of any visa required to enter the country of destination], R190(3)(d) [a foreign national who seeks to carry out official duties as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, unless they have been designated under that Act as a civilian component of those armed forces], R190(3)(f) [a foreign national who seeks to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they: (i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and; (ii) return to Canada by the end of the period initially authorized for their stay or any extension to it], R190(3)(g) [a foreign national who seeks to conduct inspections of the flight operation procedures or cabin safety of a commercial air carrier operating international flights, if they are a civil aviation inspector of a national aeronautical authority and possess valid documentation to that effect], or 190(3)(h) [a foreign national who seeks to participate as an accredited representative or as an adviser to an aviation accident or incident investigation conducted under the Canadian Transportation Accident Investigation and Safety Board Act, if they possess valid documentation to that effect].

This final list of eTA exemptions differs from the proposed list initially contained in the Notice of Intent as follows:

  • A new temporary resident visa exemption [R190(3)(b.1)] and corresponding eTA exemption has been added for foreign nationals who arrive on-board flights that stop in Canada unexpectedly owing to an emergency or other unforeseen circumstances.
  • A new eTA exemption has been added for foreign nationals transiting through Canada under Government of Canada transit programs (i.e. the Transit Without Visa Program and the China Transit Program) and who are currently visa-exempt under R190(3)(c).

In response to stakeholder requests to leverage the eTA to liberalize visa requirements, the eTA Regulations also eliminate the requirement that nationals from Lithuania or Poland obtain a temporary resident visa if they do not hold a machine-readable passport that contains a contactless integrated circuit chip.  As a result, Lithuania and Poland have now been added to the list of visa-exempt countries that appear in R190(1)(a); they will instead be subject to eTA requirements.

The eTA Regulations also eliminate R190(3)(e), which provided a visa-exemption to foreign nationals seeking to enter Canada from the United States for a U.S. immigrant visa interview, if they could establish that they would be re-admitted to the United States.


Update in Express Entry

Henry Chang | April 13, 2015 in Canadian Immigration | Comments (0)

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I previously reported that, since Express Entry began on January 1, 2015, Citizenship and Immigration Canada (“CIC”) had issued four rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

  • The Federal Skilled Worker (“FSW”) Class;
  • The Canadian Experience Class (“CEC”);
  • The Federal Skilled Trades (“FST”) Class; or
  • Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants were selected to receive an ITA based on how many points they were assigned under the Comprehensive Ranking System (“CRS”).

CIC has now issued two additional rounds of ITAs, bringing the total to six since Express Entry commenced.  A summary of all six Express Entry rounds to date appears below:

  • In Round #1 (January 31, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 886 CRS points.
  • In Round #2 (February 7, 2015), CIC issued 779 ITAs.  Applicants in this round were required to receive at least 818 CRS points.
  • In Round #3 (February 20, 2015), CIC issued 849 ITAs.  Applicants in this round were required to receive at least 808 CRS points.
  • In Round #4 (February 27, 2015), CIC issued 1187 ITAs.  Applicants in this round were required to receive at least 735 CRS points.
  • In Round #5 (March 20, 2015), CIC issued 1620 ITAs.  Applicants in this round were required to receive at least 481 CRS points.
  • In Round #6 (March 27, 2015), CIC issued 1637 ITAs.  Applicants in this round were required to receive at least 453 CRS points.

CIC is clearly increasing the number of ITAs that it issues in each round and is also lowering the minimum CRS score that applies in each round.  In fact, during the last two rounds, the lowest eligible CRS score dropped below 600.  This means that at least some of the ITAs issued during the last two rounds were sent to applicants who did not have arranged employment or a nomination certificate issued under an express entry stream.  This is a welcome trend, which I hope will continue for the balance of the year.


Update on Express Entry

Henry Chang | March 10, 2015 in Canadian Immigration | Comments (0)

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previously reported that, since Express Entry began on January 1, 2015, Citizenship and Immigration Canada (“CIC”) had issued two rounds of Invitations to Apply (“ITAs”).  An ITA allows a foreign national to submit their application for permanent residence under one of the following categories:

  • The Federal Skilled Worker (“FSW”) Class;
  • The Canadian Experience Class (“CEC”);
  • The Federal Skilled Trades (“FST”) Class; or
  • Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

Express Entry applicants were selected to receive an ITA based on how many points they were assigned under the Comprehensive Ranking System (“CRS”).

Since my previous report, CIC has now issued two additional rounds of ITAs, bringing the total to four since Express Entry commenced.  A summary of all four Express Entry rounds to date appears below:

  • In Round #1 (January 31, 2015), CIC issued 779 ITAs. Applicants in this round were required to receive at least 886 CRS points.
  • In Round #2 (February 7, 2015), CIC issued 779 ITAs. Applicants in this round were required to receive at least 818 CRS points.
  • In Round #3 (February 20, 2015), CIC issued 849 ITAs. Applicants in this round were required to receive at least 808 CRS points.
  • In Round #4 (February 27, 2015), CIC issued 1187 ITAs. Applicants in this round were required to receive at least 735 CRS points.

It would appear as though CIC is slowing increasing the number of ITAs that it issues in each round.  It is also lowering the minimum CRS score that applies in each round.

This is definitely a step in the right direction.  However, the total number of ITAs being issued is still relatively small, given the fact that Express Entry applies to all cases filed under the FSW, CEC, FST, and Express Entry Stream.  Also, even with a minimum score of 735 CRS points, an applicant cannot receive an ITA unless he or she either: (1) has arranged employment, or (2) has a nomination certificate issued under the Express Entry stream of a PNP.

Hopefully, future rounds will allow for a greater number of ITAs and a minimum score below 600 CRS points.


CIC Begins Issuing Work Permits to Applicants under the Spouse or Common Law Partner in Canada Class

Henry Chang | in Canadian Immigration | Comments (0)

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On December 22, 2014, Citizenship and Immigration Canada (“CIC”) announced a one-year pilot program to issue open work permits to applicants under the Spouse or Common-Law Partner in Canada (“SCLPC”) class before they have received approval in principle.  The SCLPC category applies to spouses and common law partners of Canadian citizens or permanent residents, who are already in Canada and seeking permanent residence within the country.

Prior to this date, applicants under the SCLPC would not be able to seek an open work permit until they had received approval in principle for their permanent residence application.  As it is taking approximately seventeen months for SCLPC applicants to receive approval in principle, the ability to seek an open work permit immediately represents a significant benefit for such applicants.

Applicants who have already submitted an application for permanent residence under the SCLPC but have not yet applied for an open work permit are instructed to apply for their open work permits by mail through the Case Processing Centre in Vegreville, Alberta.  However, if the applicant has already received approval in principle, he or she can also apply online.  New SCLPC applicants should complete their permanent residence and open work permit applications and submit both to the Case Processing Centre in Mississauga, Ontario.

CIC began issuing open work permits to eligible SCLPC applicants who had already filed prior to December 22, 2014.  It also mentioned that applicants who filed on or after that date would have their open work permit applications processed within four months of receipt.

After one year, CIC will to re-assess the pilot program and determine whether it should be continued.


Why was Singer Chris Brown Denied Entry to Canada?

Henry Chang | February 25, 2015 in Canadian Immigration | Comments (0)

Introduction

On February 24, 2015, the media reported that singer Chris Brown had abruptly cancelled his Tuesday-night concert in Montreal and another show in Toronto, after being denied entry to Canada.  He tweeted that he had been refused entry just hours before he was to take to the stage in Montreal.  Live Nation, the promoter, confirmed in a statement that, due to immigration issues, the shows had been cancelled and ticket refunds would be available.

According to media reports, Mr. Brown pled guilty to felony assault in 2009, arising from his assault of his then-girlfriend Rihanna shortly before the Grammy Awards. The plea deal included five years of supervised probation and six months of community service.  The media further reported that Mr. Brown was later charged with a misdemeanor (presumably also assault) in 2013 when he and his bodyguard were involved in a brawl outside the W Hotel in Washington D.C.  His trial for the 2013 incident apparently has not occurred yet but he did admit to violating the terms of his earlier period of probation.

So why exactly was Chris Brown turned away?  Although I don’t have to his full criminal record, I can still offer a basic analysis of his case, based on what has been reported in the media.

Applicable Law

In Canada, there are two thresholds of criminal inadmissibility under the Immigration and Refugee Protection Act (S.C. 2001, c. 27) (“IRPA”).  The lower threshold is referred to as “criminality” and the higher threshold is referred to as “serious criminality.”

Criminality

According to IRPA  36(2), a foreign national is inadmissible on grounds of criminality for (among other things):

  • Having been convicted outside Canada of an offence that, if committed in Canada, would be considered an indictable offence,  or of two offences not arising out of a single occurrence that, if committed in Canada, would be considered summary conviction offences; or
  • Having committed an offence outside Canada (i.e. it is an offence where it occurred) that, if committed in Canada, would be considered an indictable offence.

Serious Criminality

According to IRPA 36(1), a  permanent resident or a foreign national is inadmissible on grounds of serious criminality for (among other things):

  • Having been convicted of an offence outside Canada that, if committed in Canada, would be considered an offence punishable by a maximum term of imprisonment of at least 10 years; or
  • Having committed an offence outside Canada (i.e. it is an offence where it occurred) that, if committed in Canada, would be considered an offence punishable by a maximum term of imprisonment of at least 10 years.

We will need to determine the Canadian equivalent of Mr. Brown’s offence(s) under the Canadian Criminal Code (R.S.C. 1985, c. C-46) (the “CCC”) and determine what the maximum penalty would be if it occurred in Canada.  The reference to someone who has “committed an offence” reflects the fact that the Canada Border Services Agency (“CBSA”) can also deny admission to an individual who they believe has committed the offense even if that person was never convicted of the charge.

Mr. Brown’s Offences

We don’t have all of the relevant facts but it looks like Mr. Brown probably has at least one conviction for assault arising from the 2009 incident involving Rihanna.  Based on the photos of Rihanna after the incident, we can probably assume that it was for assault causing bodily harm.

Even a simple assault would render Mr. Brown inadmissible to Canada due to criminality. However, a conviction for assault causing bodily would definitely render Mr. Brown inadmissible due to serious criminality.  This is because both types of assaults are considered indictable offenses; the maximum penalty for simple assault under CCC 266 would be 5 years of imprisonment while the maximum penalty for assault causing bodily harm would be 10 years.

The pending 2013 charge, which was likely for assault, is also a potential ground of inadmissibility. As mentioned above, simple assault is considered criminality and CBSA can find him inadmissible if they believe that he committed the offence, even if no conviction has occurred yet.

The conviction for violating his probation would also be a ground of inadmissibility. This is because under CCC 733.1(1), an offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order will be guilty of an indictable offence and subject to up to two years of imprisonment. It would therefore constitute criminality, but not serious criminality.

Conclusion

Based on the information available, it looks like Mr. Brown was probably found inadmissible for the 2009 assault against Rihanna, the probation violation, and possibly the 2013 pending assault charge as well.  In such cases, relief is available in the form of a Temporary Resident Permit (“TRP”), which is essentially a temporary waiver of inadmissibility.  However, it is a discretionary remedy and is much harder to obtain where serious criminality is involved. For the sake of his fans in Canada, I wish Mr. Brown the best of luck in seeking a TRP in the near future.


CIC Begins Sending Invitations to Apply under Express Entry

Henry Chang | February 8, 2015 in Canadian Immigration | Comments (0)

As previously discussed, Citizenship and Immigration Canada (“CIC”) implemented its Express Entry system on January 1, 2015.  Since that date, CIC has issued two rounds of Invitations to Apply (“ITAs”), which invite selected Express Entry applicants to submit applications for permanent residence under one of the following categories:

  • The Federal Skilled Worker (“FSW”) Class;
  • The Canadian Experience Class (“CEC”);
  • The Federal Skilled Trades (“FST”) Class; or
  • Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

On January 31, 2015, Minister of Citizenship and Immigration Chris Alexander (the “Immigration Minister”) issued Ministerial Instructions (“MIs”) regarding the first round of ITAs.  The MIs stated that the total number of ITAs issued during the period between January 31, 2015 and February 1, 2015 would be 779.  They also stated that only Express Entry applicants who had been assigned at least 886 points under the Comprehensive Ranking System (“CRS”) would receive an ITA during the first round.

On February 7, 2015, Minister of Citizenship and Immigration Chris Alexander issued additional MIs regarding its second round of ITAs.  These MIs stated that the total number of ITAs issued during the period between February 7, 2015 and February 8, 2015 would again be 779.  They also stated that only Express Entry applicants who had been assigned at least 818 points would receive an ITA during the second round.

By setting the minimum CRS ranking above 600, CIC ensured that only those applicants who received an additional 600 points, either for arranged employment or for a nomination under the PNP Express Entry stream, were considered for selection in these first two rounds.  This is a disappointment for many Express Entry applicants who believed that they might receive an ITA even without these additional 600 points.

The total number of applicants who received an ITA during each round was also disappointingly low.  Assuming that only 779 applicants receive an ITA under Express Entry each month during 2015, this means that CIC will only process 9,348 new applications under the FSW, CEC, FST, and PNP Express Entry Stream during the entire year.  This clearly cannot be CIC’s intention.

Despite these two disappointing rounds, it is still possible that applicants who have neither arranged employment nor a nomination under a PNP Express Entry Stream will still have an opportunity to receive an ITA sometime year.  The decision to issue ITAs only to applicants having more than 600 points during the first two rounds might have been a political decision, so that the Immigration Minister could initially claim that the Express Entry system was selecting only the best and brightest applicants.  In addition, the decision to issue only 779 ITAs during each round may have been made so that CIC could initially process these cases within the six-month time frame that it has been promising.

Hopefully, future rounds will involve a larger number of ITAs and a minimum CRS ranking that is low enough to include applicants who do not have arranged employment or a nomination under a PNP Express Entry Stream.


Government of Canada Announces Immigrant Investor Venture Capital Pilot Program

Henry Chang | January 11, 2015 in Canadian Immigration | Comments (0)

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Introduction

On December 16, 2014, Citizenship and Immigration Minister Chris Alexander (the “Minister”) announced that Canada will unveil its Immigrant Investor Venture Capital Pilot Program (the “IIVC”) at the end of January 2015.  The IIVC is designed to attract experienced business immigrants who will actively invest in the Canadian economy and will be available to approximately 50 investors and their families (presumably each year).  Although full details of the IIVC have not been announced yet, what is known so far is summarized below.

Eligibility

The eligibility criteria under the IIVC are designed to attract investors with skills and abilities that will help them integrate into the Canadian economy and society.  These criteria will include the following:

  • Proven language proficiency in English or French;
  • Either: (1) a Canadian post-secondary degree, diploma or certificate; or (2) a foreign educational credential plus an Canadian educational equivalency assessment from a designated organization;
  • A legally obtained net worth of at least $10 million CAD derived from lawful, profit-making business activities, which will be verified by a designated due diligence service provider (only applicants selected for processing under the IIVC will be required to obtain a due diligence report); and
  • A non-guaranteed investment in the amount of $2 million CAD, paid into the IIVC fund for a period of 15 years (the funds will be invested in Canadian-based start-ups having high growth potential).

Overview of the Application Process

Citizenship and Immigration Canada (“CIC”) will accept up to a maximum of 500 applications within a specified period.  Applications will be selected randomly for processing until approximately 50 approved applications are finalized.  Applications that are not selected will be returned once the cap has been reached.

CIC claims that selected applicants should receive a decision on their applications within approximately six months of submitting all required documentation.  A similar time frame has also been suggested for applicants who are selected under the new Express Entry system.  However, it remains to be seen whether CIC will actually meet this processing standard once it begins processing IIVC and Express Entry applications.

Analysis of the IIVC

The opening of a new program for immigrant investors is good news, especially since the Canadian Government stopped accepting applications under the previous Immigrant Investor Program on July 1, 2012 (it later terminated the entire program).  However, the IIVC is a pilot program (such programs have a maximum duration of 5 years) and it will be limited to 50 applicants (presumably each year).

In addition, the IIVC must be considered in light of investor programs offered by other countries.  Unless a particular investor is predisposed to choosing Canada, he or she is unlikely to apply under the IIVC unless its eligibility criteria are more generous than those applied by the investor programs of those other countries.

For example, the EB-5 Immigrant Investor Program (the “EB-5 Program”) currently offered by the United States requires only an investment of only $1 million USD in a qualifying business, with no specific net worth requirement.  In addition, applicants who choose to invest in an approved EB-5 Regional Center can invest as little as $500,000 USD (although they will also need to fall within the definition of “accredited investor” in order to comply with U.S. securities laws.

The EB-5 Program does impose additional restrictions that will probably not apply under the IIVC.  For example:

  • In most cases the EB-5 Program requires the direct creation of 10 full-time jobs for U.S. citizens, permanent residents, or other lawfully permitted immigrants.  However, in Targeted Employment Areas (most EB-5 Regional Centers are established in such areas), it is possible to demonstrate the indirect creation of these jobs resulting from the investment itself.
  • EB-5 Program applicants are given conditional permanent resident status for 2 years and must apply to remove their condition after that date.  However, once the condition has been removed, EB-5 immigrants are permitted to sell their interest in the EB-5 investment (the IIVC will impose a 15-year investment obligation).

Conclusion

Although the IIVC certainly has potential, it remains to be seen whether the program will be popular with foreign investors, in light of the investor options currently offered by other countries.


CIC Issues Ministerial Instructions Relating to Express Entry

Henry Chang | December 18, 2014 in Canadian Immigration | Comments (0)

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Introduction

On December 1, 2014, Citizenship and Immigration Canada (“CIC”) published Ministerial Instructions relating to its proposed Express Entry System (“Express Entry”).  Express Entry will come into effect on January 1, 2015, at 12:00 noon EST, and will apply to the following categories:

  1. The Federal Skilled Worker (“FSW”) Class;
  2. The Canadian Experience Class (“CEC”);
  3. The Federal Skilled Trades (“FST”) Class; and
  4. Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

In summary, Express Entry will apply to all FSW, CEC, and FST applications filed on or after January 1, 2015.  However, it will not apply to any existing PNP streams.  Instead, each province will have the option of establishing a new Express Entry Stream under its existing PNP.

Overview

Potential candidates will be permitted to submit an online Express Entry profile (i.e. an “Expression of Interest”).  At this time, they will be asked to provide information about their: (a) skills, (b) work experience, (c) language ability, (d) education, and (e) other relevant factors.  However, if a candidate is unable to submit an Expression of Interest online, due to a physical or mental disability, it may be submitted by another means made available by CIC for that purpose.

Candidates who meet the applicable eligibility requirements of at least one of the classes described above (i.e. FSW, CEC, FST, or PNP Express Entry stream) will be accepted into a special pool of candidates (the “Express Entry Pool”).  However, acceptance into the Express Entry Pool does not guarantee that a particular candidate will be issued an Invitation to Apply (“ITA”) for permanent residence.  Instead, candidates in the Express Entry Pool will be ranked against each other using a point-based system called the Comprehensive Ranking System; these points will be awarded using the information contained in each candidate’s Expression of Interest.  The candidates with the highest ranking will be periodically selected from the Express Entry Pool.

Candidates may not receive an ITA unless they satisfy the following requirements:

  1. They must satisfy the eligibility requirements of at least one of the classes described above (i.e. FSW, CEC, FST, or PNP Express Entry stream).
  2. They must have a positive Labour Market Impact Assessment (“LMIA”), if they are working in Canada under a work permit issued pursuant to: (1) an international agreement between Canada and one or more foreign countries (such as a work permit based on the NAFTA or similar free trade agreements), or (2) a federal-provincial agreement (such as a work permit based on a PNP Nomination Certificate).  This language was particularly troubling because appeared to preclude the issuance of an ITA to certain foreign workers who would not otherwise require an LMIA, unless their Canadian employer obtained one on their behalf.  However, CIC later confirmed that it only intended to clarify that a temporary foreign worker in Canada under an LMIA-exempt work permit would not earn any Express Entry ranking points for arranged employment.
  3. Within 30 days from the date that they submit their Expression of Interest, they must register with the Job Bank maintained by Employment and Social Development Canada (“ESDC”), if they do not have a qualifying offer of arranged employment or are not named in a Nomination Certificate issued under a PNP Express Entry stream at the end of that period.

If someone receives an ITA, they will have sixty days to submit an online application for permanent residence.  CIC expects to process the majority of complete applications (meaning those with all the necessary supporting documents) in six months or less.

Candidates accepted into the Express Entry Pool may remain in the pool for up to twelve months, starting on the date that their Expression of Interest was submitted.  If they do not receive an ITA during this period, they will be removed from the pool.  However, they may submit a new Expression of Interest; if they still satisfy the criteria, they can re-enter the Express Entry Pool.

If a candidate declines the invitation within the sixty-day period, the remaining portion of the original one-year period of their inclusion in the Express Entry Pool will continue.  However, if the candidate does not decline the invitation within the sixty-day period and does not make an application for permanent residence within that period, the Expression of Interest will end, regardless of the portion of the one-year period that remains.

Mandatory Submission of Educational Credential Assessments and Language Proficiency Results

Candidates will be required to provide the results of an assessment of their proficiency in English or French (issued by a designated language testing organization or institution) at the time that they submit their Expression of Interest.  Language proficiency assessments are valid for a period of two years from the date that they are issued.

In addition, candidates who are relying on foreign education will be required to provide the results of a valid educational credential equivalency assessment (issued by a designated credential evaluation organization or institution) at the time that they submit their Expression of Interest.  Educational credential assessments are valid for a period of five years from the date that they are issued.

The Comprehensive Ranking System

The ranking of candidates who are included in the Express Entry Pool will be based on the total number of points assigned to each candidate, using the information provided in their Expression of Interest and in accordance with the Comprehensive Ranking System, which considers the following factors:

  1. Core human capital factors;
  2. Accompanying spouse or common-law partner factors;
  3. Skill transferability factors; and
  4. Factors relating to a provincial nomination or a qualifying offer of arranged employment.

Maximum Points Allocations

The total number of points that may be assigned under the Comprehensive Ranking System is 1200 points.  These points will be allocated as follows:

  1. Where a candidate has no accompanying spouse or common-law partner: (i) a maximum of 500 points for core human capital factors, (ii) a maximum of 100 points for skill transferrability factors, and (iii) a maximum of 600 points for either a provincial nomination or a qualifying offer of arranged employment; and
  2. Where a candidate has an accompanying spouse or common-law partner: (i) a maximum of 460 points for the core human capital factors, (ii) a maximum of 40 points for accompanying spouse or common-law partner factors, (iii) a maximum of 100 points for skill transferability factors, and (iv) a maximum of 600 points for either a provincial nomination or a qualifying offer of arranged employment.

Core Human Capital Factors

Age

For a candidate who has no accompanying spouse or common-law partner, points for age are assigned as follows:

  1. 0 points, if the candidate is 17 years of age or less;
  2. 99 points, if the candidate is 18 years of age;
  3. 105 points, if the candidate is 19 years of age;
  4. 110 points, if the candidate is 20 to 29 years of age;
  5. 105 points, if the candidate is 30 years of age;
  6. 99 points, if the candidate is 31 years of age;
  7. 94 points, if the candidate is 32 years of age;
  8. 88 points, if the candidate is 33 years of age;
  9. 83 points, if the candidate is 34 years of age;
  10. 77 points, if the candidate is 35 years of age;
  11. 72 points, if the candidate is 36 years of age;
  12. 66 points, if the candidate is 37 years of age;
  13. 61 points, if the candidate is 38 years of age;
  14. 55 points, if the candidate is 39 years of age;
  15. 50 points, if the candidate is 40 years of age;
  16. 39 points, if the candidate is 41 years of age;
  17. 28 points, if the candidate is 42 years of age;
  18. 17 points, if the candidate is 43 years of age;
  19. 6 points, if the candidate is 44 years of age; and
  20. 0 points, if the candidate is 45 years of age or more.

For a candidate who has an accompanying spouse or common-law partner, points for age are assigned as follows:

  1. 0 points, if the candidate is 17 years of age or less;
  2. 90 points, if the candidate is 18 years of age;
  3. 95 points, if the candidate is 19 years of age;
  4. 100 points, if the candidate is 20 to 29 years of age;
  5. 95 points, if the candidate is 30 years of age;
  6. 90 points, if the candidate is 31 years of age;
  7. 85 points, if the candidate is 32 years of age;
  8. 80 points, if the candidate is 33 years of age;
  9. 75 points, if the candidate is 34 years of age;
  10. 70 points, if the candidate is 35 years of age;
  11. 65 points, if the candidate is 36 years of age;
  12. 60 points, if the candidate is 37 years of age;
  13. 55 points, if the candidate is 38 years of age;
  14. 50 points, if the candidate is 39 years of age;
  15. 45 points, if the candidate is 40 years of age;
  16. 35 points, if the candidate is 41 years of age;
  17. 25 points, if the candidate is 42 years of age;
  18. 15 points, if the candidate is 43 years of age;
  19. 5 points, if the candidate is 44 years of age; and
  20. 0 points, if the candidate is 45 years of age or more.

Level of Education

For a candidate who has no accompanying spouse or common-law partner, points for level of education are assigned as follows:

  1. 0 points, if the candidate has less than a secondary school credential,
  2. 30 points, if the candidate has a secondary school credential,
  3. 90 points, if the candidate has a one-year post-secondary program credential,
  4. 98 points, if the candidate has a two-year post-secondary program credential,
  5. 120 points, if the candidate has a post-secondary program credential of three years or more,
  6. 128 points, if the candidate has two or more post-secondary program credentials and at least one of them was issued at the completion of a post-secondary program of three years or more,
  7. 135 points, if the candidate has a university-level credential at the master’s level or at the level of an entry-to-practice professional degree for an occupation listed in the National Occupational Classification (“NOC”) matrix at Skill level A for which licensing by a provincial regulatory body is required, and
  8. 150 points, if the candidate has a university-level credential at the doctoral level.

For a candidate who has an accompanying spouse or common-law partner, points for level of education are assigned as follows:

  1. 0 points, if the candidate has less than a secondary school credential;
  2. 28 points, if the candidate has a secondary school credential;
  3. 84 points, if the candidate has a one-year post-secondary program credential;
  4. 91 points, if the candidate has a two-year post-secondary program credential;
  5. 112 points, if the candidate has a post-secondary program credential of three years or more;
  6. 119 points, if the candidate has two or more post-secondary program credentials and at least one of them was issued at the completion of a post-secondary program of three years or more;
  7. 126 points, if the candidate has a university-level credential at the master’s level or an entry-to-practice professional degree for an occupation listed in the NOC matrix at Skill level A for which licensing by a provincial regulatory body is required; and
  8. 140 points, if the candidate has a university-level credential at the doctoral level.

Education points will be assigned based on the highest level of education obtained.  However, in order for a candidate to be assigned points for education, the following must apply:

  1. Their educational credentials must be Canadian educational credentials; or
  2. They must have a valid educational credential equivalency assessment issued by a designated credential evaluation organization or institution.

Official Language Proficiency

Overview

Points will be assigned to candidates for proficiency in their first official language and for proficiency in their second official language.  As a result, they must indicate which of Canada’s two official languages (English or French) is their primary language and which is their secondary language.  In order to receive points for language, candidates must also have their proficiency assessed by a designated language testing organization or institution.

First Official Language

Points will be assigned for each language skill area (reading, writing, listening, and speaking) of the candidate’s first official language.  The calculation of points will be based on their benchmark level, as assessed under the Canadian Language Benchmarks or the Niveaux de compétence linguistique canadiens.

For a candidate who has no accompanying spouse or common-law partner, points will be assigned for each language skill area as follows:

  1. 0 points for being assessed at less than level 4;
  2. 6 points for being assessed at level 4 or 5;
  3. 9 points for being assessed at level 6;
  4. 17 points for being assessed at level 7;
  5. 23 points for being assessed at level 8;
  6. 31 points for being assessed at level 9; and
  7. 34 points for being assessed at level 10 or higher.

The maximum number of points that may be assigned for all four language skill areas, taken together, in the candidate’s first official language is 136 points.

For a candidate who has an accompanying spouse or common-law partner, points will be assigned for each language skill area as follows:

  1. 0 points for being assessed at less than level 4;
  2. 6 points for being assessed at level 4 or 5;
  3. 8 points for being assessed at level 6;
  4. 16 points for being assessed at level 7;
  5. 22 points for being assessed at level 8;
  6. 29 points for being assessed at level 9; and
  7. 32 points for being assessed at level 10 or higher.

The maximum number of points that may be assigned for all four language skill areas, taken together, in the candidate’s first official language is 128 points.

Second Official Language

Points will also be assigned for each language skill area (reading, writing, listening, and speaking) of the candidate’s second official language.  The calculation of points will again be based on their benchmark level, as assessed under the Canadian Language Benchmarks or the Niveaux de compétence linguistique canadiens.

Points will be assigned for each language skill area as follows:

  1. 0 points for being assessed at level 4 or less;
  2. 1 point for being assessed at level 5 or 6;
  3. 3 points for being assessed at level 7 or 8; and
  4. 6 points for being assessed at level 9 or higher.

For a candidate who has no accompanying spouse or common-law partner, the maximum number of points that may be assigned for all of the language skill areas, taken together, in the second official language is 24 points.  For a candidate who has an accompanying spouse or common-law partner, the maximum number of points that may be assigned for all of the language skill areas, taken together, in the second official language is 22 points.

Canadian Work Experience

Points will be assigned to candidates for Canadian work experience, which is defined as work experience that:

  1. Is acquired by a candidate in Canada in one or more occupations listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix;
  2. Consists of continuous full-time work experience or the full-time equivalent for part-time work experience; and
  3. Is acquired within the 10-year period preceding the day on which points are assigned to the candidate.

Full-time employment means employment of at least 30 hours per week.  A period of work experience that exceeds full-time work in one occupation, or simultaneous periods of work experience in more than one full-time occupation, will be evaluated as a single period of full-time work experience in a single occupation.

Any period of employment during which the candidate was engaged in full-time study, engaged in self-employment, or engaged in unauthorized work may not be counted when calculating the period of work experience.  The candidate must also have had temporary resident status during their period of work experience and any period of full-time study or training.

The candidate must specify in their Expression of Interest the four-digit code in the NOC that corresponds to each of the occupations they have engaged in while accumulating their Canadian work experience.  They must also have performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC, as well as a substantial number of the main duties described therein (including all essential duties).

For a candidate who has no accompanying spouse or common-law partner, points will be assigned for Canadian work experience as follows:

  1. 0 points, for no Canadian work experience or less than one year of such experience;
  2. 40 points, for one year of Canadian work experience;
  3. 53 points, for two years of Canadian work experience;
  4. 64 points, for three years of Canadian work experience;
  5. 72 points, for four years of Canadian work experience; and
  6. 80 points, for five or more years of Canadian work experience.

For a candidate who has an accompanying spouse or common-law partner, points will be assigned for Canadian work experience as follows:

  1. 0 points, for no Canadian work experience or less than one year of such experience;
  2. 35 points, for one year of Canadian work experience;
  3. 46 points, for two years of Canadian work experience;
  4. 56 points for three years of Canadian work experience;
  5. 63 points, for four years of Canadian work experience; and
  6. 70 points, for five or more years of Canadian work experience.

Accompanying Spouse or Common-law Partner

Points will also be assigned based on accompanying spouse or common-law partner factors, which consist of the following: (a) level of education, (b) official language proficiency; and (c) Canadian work experience.  Each of these factors is described below.

Level of Education

In order for a candidate to be assigned points for education of the accompanying spouse or common-law partner (if applicable), the following must apply:

  1. Their educational credentials must be Canadian educational credentials; or
  2. They must have a valid educational credential equivalency assessment issued by a designated credential evaluation organization or institution.

Points will be assigned for the level of education of the accompanying spouse or common law partner as follows:

  1. 0 points, if the accompanying spouse or common-law partner has less than a secondary school credential;
  2. 2 points, if the accompanying spouse or common-law partner has a secondary school credential;
  3. 6 points, if the accompanying spouse or common-law partner has a one-year post-secondary program credential;
  4. 7 points, if the accompanying spouse or common-law partner has a two-year post-secondary program credential;
  5. 8 points, if the accompanying spouse or common-law partner has a post-secondary program credential of three years or more;
  6. 9 points, if the accompanying spouse or common-law partner has two or more post-secondary program credentials and at least one of them was issued at the completion of a post-secondary program of three years or more;
  7. 10 points, if the accompanying spouse or common-law partner has a university-level credential at the master’s level or at the level of an entry-to-practice professional degree for an occupation listed in the NOC matrix at Skill level A for which licensing by a provincial regulatory body is required; and
  8. 10 points, if the accompanying spouse or common-law partner has a university-level credential at the doctoral level.

Official Language Proficiency

Points will be assigned for each language skill area (reading, writing, listening, and speaking) for the first official language (but not the second official language) of the accompanying spouse or common law partner.  The candidate must specify which official language is to be considered the first official language of the spouse or common-law partner.

The language proficiency of the accompanying spouse or common-law partner must be assessed by a designed organization or institution.  Points assigned for proficiency in English will be based on the results assessed according to the benchmarks set out in Canadian Language Benchmarks and the points assigned for proficiency in the French language are to be based on the results assessed according to the benchmarks set out in the Niveaux de compétence linguistique canadiens.

Points will be assigned to the candidate for the proficiency of their accompanying spouse or common-law partner, in each language skill area (reading, writing, listening and speaking), as follows:

  1. 0 points for being assessed at level 4 or less;
  2. 1 point for being assessed at level 5 or 6;
  3. 3 points for being assessed at level 7 or 8; and
  4. 5 points for being assessed at level 9 or higher.

The maximum number of points that may be assigned for all of the language skill areas, taken together, is 20 points.

Canadian Work Experience

Points will be assigned to the candidate, based on the Canadian work experience of the accompanying spouse or common-law partner, as follows:

  1. 0 points, if the accompanying spouse or common-law partner has no Canadian work experience or less than one year of such experience;
  2. 5 points, if the accompanying spouse or common-law partner has one year of Canadian work experience;
  3. 7 points, if the accompanying spouse or common-law partner has two years of Canadian work experience;
  4. 8 points, if the accompanying spouse or common-law partner has three years of Canadian work experience;
  5. 9 points, if the accompanying spouse or common-law partner has four years of Canadian work experience; and
  6. 10 points, if the accompanying spouse or common-law partner has five or more years of Canadian work experience.

In order for the candidate to be assigned points for the Canadian work experience of their accompanying spouse or common-law partner, the Expression of Interest must include the four-digit code in the NOC that corresponds to each of the occupations that the accompanying spouse or common-law partner has engaged in while accumulating their Canadian work experience.  The spouse or common-law partner also must have performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC, as well as a substantial number of the main duties (including all essential duties).

Skill Transferability Factors

Combination of Level of Education and Official Language Proficiency

The points are to be assigned for a combination of a candidate’s level of education and language proficiency (in their first official language) as follows:

  1. 0 points, if the candidate has a secondary school credential, regardless of their proficiency in their first official language;
  2. 13 points, if the candidate has a post-secondary program credential of one or more years and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9;
  3. 25 points, if the candidate has a post-secondary program credential of one or more years and is assessed in their first official language at level 9 or higher on all language skill areas;
  4. 25 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9; and
  5. 50 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and is assessed in their first official language at level 9 or higher on all language skill areas.

Points are to be assigned based on the highest level of post-secondary education obtained.

Combination of Level of Education and Canadian Work Experience

Points are to be assigned for a combination of a candidate’s level of education and Canadian work experience as follows:

  1. 0 points, if the candidate has a secondary school credential, regardless of their Canadian work experience;
  2. 13 points, if the candidate has a post-secondary program credential of one year or more and one year of Canadian work experience;
  3. 25 points, if the candidate has a post-secondary program credential of one year or more and two or more years of Canadian work experience;
  4. 25 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and one year of Canadian work experience; and
  5. 50 points, if the candidate has two or more post-secondary program credentials, one of which was issued on completion of a post-secondary program of three years or more, and two or more years of Canadian work experience.

The above points are to be assigned based on the highest level of post-secondary education obtained.

The points assigned for: (a) education plus language, and (b) education plus Canadian work experience may be combined.  However, the total number of points earned for these two factors combined may not exceed 50 points.

Combination of Foreign Work Experience and Official Language Proficiency

Points are to be assigned for a combination of a candidate’s foreign work experience and language proficiency (in their first official language) as follows:

  1. 0 points, if the candidate has no foreign work experience, regardless of their proficiency in their first official language;
  2. 13 points, if the candidate has one or two years of foreign work experience and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9;
  3. 25 points, if the candidate has one or two years of foreign work experience and is assessed in their first official language at level 9 or higher on all language skill areas ;
  4. 25 points, if the candidate has three years of foreign work experience and is assessed overall in their first official language at level 7 on all language skill areas, with one or more areas assessed at less than level 9; and
  5. 50 points, if the candidate has three years of foreign work experience and is assessed in their first official language at level 9 or higher on all language skill areas.

In order for the candidate to be assigned points for foreign work experience, the Expression of Interest must include the four-digit code in the NOC that corresponds to each of the occupations that the candidate has engaged in while accumulating their foreign work experience.  The candidate must also have performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC, as well as a substantial number of the main duties (including all essential duties).

Combination of Canadian Work Experience and Foreign Work Experience

Points are to be assigned for a combination of a candidate’s Canadian work experience and foreign work experience as follows:

  1. 0 points, if the candidate has no foreign work experience, regardless of their Canadian work experience;
  2. 13 points, if the candidate has one or two years of foreign work experience and one year of Canadian work experience;
  3. 25 points, if the candidate has one or two years of foreign work experience and two or more years of Canadian work experience;
  4. 25 points, if the candidate has three or more years of foreign work experience and one year of Canadian work experience; and
  5. 50 points, if the candidate has three or more years of foreign work experience and two or more years of Canadian work experience.

The points assigned for: (a) foreign work experience plus language, and (b) Canadian work experience plus foreign work experience may be combined.  However, the total number of points earned for these two factors combined may not exceed 50 points.

Combination of Certificate of Qualification and Official Language Proficiency

Points are to be assigned for a combination of a candidate’s certificate of qualification (in a trade occupation issued by a province) and language proficiency (in their first official language) as follows:

  1. 25 points, if the candidate has a certificate of qualification and is assessed overall in their first official language under the Canadian Language Benchmarks or the Niveaux de competence linguistique canadiens at benchmark level 5 or higher on all language skill areas, with one or more areas assessed under level 7; and
  2. 50 points, if the candidate has a certificate of qualification and is assessed in their first official language under the Canadian Language Benchmarks or the Niveaux de compétence linguistique canadiens at benchmark level 7 or higher on all language skill areas.

Maximum Overall Points for Skill Transferability Factors

The maximum number of points that may be assigned for all of the skill transferability factors taken together is 100 points.

Provincial Nomination under an Express Entry Stream

A total of 600 points may be assigned to a candidate if he or she is named in a Nomination Certificate issued by a PNP and the nomination has been: (a) verified by the relevant province, and (b) accepted by the candidate.  However, these points will be lost if the Nomination Certificate is revoked by the province that issued it, or if the candidate declines the nomination.  In addition, a candidate who receives 600 points for provincial nomination may not receive points for arranged employment.

Offer of Arranged Employment

A total of 600 points may be assigned to a candidate if they have a qualifying offer of arranged employment.  However, these points will be lost if the offer is revoked or ceases to be a qualifying offer of arranged employment. In addition, a candidate who receives 600 points for arranged employment may not receive points for provincial nomination.

The term “qualifying offer of arranged employment” means:

  1. An offer of employment in a Skill Type 0, Skill Level A, or Skill Level B occupation, made by an employer (other than a blacklisted employer or an embassy, high commission or consulate in Canada) for full-time work in Canada that is non-seasonal, permanent, and supported by an LMIA;
  2. An offer of employment, in a Skill Level B occupation eligible under the FST, that is made by up to two employers (other than a blacklisted employer or an embassy, high commission or consulate in Canada), for continuous, full-time work in Canada for at least one year and that is supported by an LMIA;
  3. An offer of employment in a Skill Type 0, Skill Level A, or Skill Level B occupation, made to a candidate who is working in Canada for the employer listed on their work permit (other than a blacklisted employer or an embassy, high commission or consulate in Canada) for full-time work in Canada that is non-seasonal and permanent, if the work permit was issued on the basis of an LMIA; or
  4. An offer of employment in a Skill Level B occupation eligible under the FST, that is made to a candidate by one or both employers listed on their work permit (other than a blacklisted employer or an embassy, high commission or consulate in Canada) for continuous, full-time work in Canada for at least one year in a skilled trade occupation that is in the same minor group set out in the NOC as the occupation specified on their work permit, if the work permit was issued on the basis of an LMIA.

Conclusion

Express Entry will add additional complex layer of bureaucracy to the FSW, CEC, and FST classes.  It will also significantly increase the level of uncertainty for candidates seeking permanent residence under these classes, since it will no longer be possible to reliably predict how long it will take for an applicant to be selected from the Express Entry pool.  Many applicants could be included in the Express Entry Pool only to have their Expressions of Interest cancelled one year later if they are not selected.

The Government of Canada has suggested a processing time of six months or less for candidates who are issued an ITA, which is a significant improvement over current processing times.  However, these improved processing times may not be worth the increased uncertainty that will result from the implementation of Express Entry.

We will be watching to see how these cases are processed once Express Entry begins on January 1, 2015.


The Government of Canada Introduces Legislation to Prevent Barbaric Cultural Practices in Canada

Henry Chang | November 9, 2014 in Canadian Immigration | Comments (0)

On November 5, 2014, Citizenship and Immigration Minister Chris Alexander announced that the Government of Canada had tabled its proposed Zero Tolerance for Barbaric Cultural Practices Act (the “Proposed Act”).  The Proposed Act is intended to amend the current Immigration and Refugee Protection Act (“IRPA”), the Civil Marriage Act and the Criminal Code for the purpose of preventing barbaric cultural practices from taking place in Canada.

According to the Government of Canada, the Proposed Act will provide more protection and support for vulnerable immigrants, primarily women and girls, including:

  • Creating a new inadmissibility under IRPA that would render permanent residents and temporary residents inadmissible if they practice polygamy in Canada;
  • Strengthening Canadian marriage laws by amending the Civil Marriage Act to codify the existing legal requirements, at the national level, for “free and enlightened consent” and establishing a new national minimum age for marriage of sixteen (16);
  • Helping to protect potential victims of early or forced marriages by creating a new specific court-ordered peace bond to be used where there are grounds to fear that a person would commit a forced or early marriage offence, including the mandatory surrendering of a passport to prevent a child from being taken out of the country to facilitate a forced marriage;
  • Criminalizing certain conduct related to early and forced marriage ceremonies in the Criminal Code, including the act of removing a child from Canada for the purpose of such marriage;
  • Limiting the defence of provocation so that it would not apply in alleged “honour” killings and many spousal homicides; and
  • Including consequential amendments to the Prisons and Reformatories Act and the Youth Criminal Justice Act to include the above court-ordered peace bond.

In terms of the immigration-related amendments, the Proposed Act will attempt to address the issue of polygamy through the creation of a new polygamy-specific ground of inadmissibility.  Under this new ground, foreign nationals (both temporary residents and permanent residents) who practise polygamy in Canada could be found inadmissible on that basis alone, without the need for a criminal conviction.  If such a foreign national is found to be inadmissible under this ground, they could then be subject to removal from Canada.

While current IRPA provisions require foreign nationals wishing to become permanent residents to have only one spouse, once in Canada, it is difficult to find these individuals inadmissible.  A criminal conviction or finding of misrepresentation is required before a person practicing polygamy in Canada can be found inadmissible.

Once the Proposed Act is implemented, a polygamist permanent resident or foreign national who is or will be physically present in Canada with even one of their polygamous spouses will be deemed to be practicing polygamy in Canada.  The permanent resident or foreign national could be found inadmissible on that basis alone, without requiring evidence that the person misrepresented their situation or has a criminal conviction.

As mentioned above, the new ground of inadmissibility would apply to the temporary stream, to the permanent immigration stream, and to existing Canadian permanent residents:

  • While in the permanent stream, permanent residents will be required to stop practicing polygamy and will only be permitted to immigrate with one monogamous spouse.
  • In the temporary stream, visitors, students and workers who practice polygamy abroad and come to Canada with even one of their spouses, or who join one of their spouses in Canada, would be deemed to be practicing polygamy on Canadian soil and would be inadmissible under IRPA.
  • Existing permanent residents who practice polygamy in Canada would also be inadmissible under IRPA.  This should apply even where one of the polygamous spouses is residing outside Canada.

Although the stated objectives of the Proposed Act are admirable, some critics have alleged that the immigration-related amendments will instead ensure that vulnerable women and girls never have the opportunity to come to Canada, where they might otherwise benefit from the protection of Canadian laws.  In other words, it will not necessarily eliminate barbaric cultural practices; it will only ensure that they do not take place on Canadian soil.

It remains to be seen what effect the proposed ground of inadmissibility will have on vulnerable women and girls who reside abroad.  However, it should at least discourage Canadian permanent residents from continuing the practice of polygamy after their arrival in Canada.


ESDC Considers Administrative Monetary Penalties and Longer Bans on Employers who violate the TFWP

Henry Chang | in Canadian Immigration | Comments (0)

As was previously mentioned, on June 20, 2014, the Jason Kenney, Minister of Employment and Social Development, and Chris Alexander, Minister of Citizenship and Immigration, announced changes to Canada’s Temporary Foreign Worker Program (“TFWP”).  Among these changes was a proposal to impose fines of up to $100,000.00 on employers who violated the TFWP.  The names of employers who were fined, and the amount of the fine, would also be published on the Blacklist.

At the end of September 2014, Employment and Social Development Canada (“ESDC”) published a discussion paper, which proposed to implement an Administrative Monetary Penalty (“AMP”) system for violations of the TFWP; penalties of up to $100,000.00 could be imposed under this new system.  It also proposed to increase the maximum ban for employers who violate the TFWP from two years to ten years (a permanent ban was also being considered).

Under the current regulations, non-compliance with the TFWP may be justified (i.e. excused) in certain circumstances.  According to Subsection 203(1.1) of the Immigration and Refugee Protection Regulations (“IRPR”), the permitted justifications include:

  • A change in federal or provincial law;
  • A change to the provisions of a collective agreement;
  • The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the business of the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
  • An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;
  • An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;
  • Circumstances similar to those set out above; or
  • Force majeure (i.e. fire, flood, etc.).

If an employer can demonstrate that their failure to comply was justified, they will not be sanctioned under the current system.

For some reason, ESDC is concerned that the current regulations do not allow a non-compliant (but justified) employer to be sanctioned if they take corrective action.  For example, if non-compliance due to an unintentional accounting or administrative error resulted in the underpayment of a temporary foreign worker, the employer cannot be sanctioned if the unpaid wages are paid.  Of course, this is not necessarily a bad thing.

In response to this perceived loophole, ESDC is proposing to amend the IRPR so that consequences will be imposed on these non-compliant employers regardless of whether they take corrective action.  Specifically, it wants non-compliance resulting from good faith errors and unintentional accounting or administrative errors to still be subject to sanctions such as an AMP, a ban, and/or the publication of the employer’s name.  Of course, ESDC claims that the employer’s response to the violation (for example, the repayment of wages) would be taken into account in determining the amount of the AMP or the length of the ban so that there is still an incentive for the employer to take corrective action.

EDSC also claims that it would not change the justifications related to force majeure and changes to federal or provincial laws, collective agreements, and economic conditions (i.e. where the temporary foreign worker’s hours are reduced below what was stated in the job offer due to an economic downturn that reduced the hours of all workers).  Sanctions such as AMPs or bans would not be imposed on non-compliant employers when one of these justifications applies.

ESDC’s rationale for its proposal is that the existing provisions to ban a non-compliant employer for two years and to revoke its Labour Market Impact Assessments (“LMIAs”) and work permits may be too severe in some circumstances and not severe enough in others.  It also claims that these consequences do not ensure that an employer does not benefit financially from non-compliance.

While the proposal to increase maximum duration of the ban from two years to ten years is not unreasonable, the idea of imposing a financial penalty on employers who inadvertently become non-compliant due to a good faith error or an unintentional accounting or administrative error (caused by the employer) is questionable.  The existing justifications are in place because the current system is intended to be remedial and to punish only violators whose actions are not justified.

By imposing penalties for inadvertent non-compliance due to good faith errors or unintentional accounting/administrative errors, ESDC will essentially impose strict liability on employers.  If the intention really is to do that, there is no reason to retain the other justifications described in R203(1.1) either.  If strict liability applies, even violations due to reasons beyond the control of the employer (i.e. force majeure) should be penalized, although these reasons can be considered when determining the appropriate penalty.

Of course, the imposition of strict liability for employers would not necessarily ensure greater compliance with the TFWP but it would impose even greater burdens on employers who are making a good faith attempt to comply.  In other words, this would be a very bad idea.

There is certainly merit in applying AMPs to violations that do not fall under R203(1.1).  Even where the violation cannot be justified, an employer ban or the revocation of the employer’s LMIAs and work permits may be too severe a penalty under some circumstances.  In addition, the current sanctions may not be severe enough to punish the most outrageous violators.

In general, the proposal to implement an AMP system is a reasonable one.  However, it makes no sense to penalize employers who have made a good faith attempt to comply with the regulations.  If the existing justifications described in R203(1.1) are retained and AMPs are imposed only in cases of unjustified non-compliance, the objectives of the TFWP program will still be served but will not place an undue burden on employers who are doing their best to comply.