Introduction

On May 10, 2013, Citizenship and Immigration Canada (“CIC”) announced proposed regulatory amendments that will narrow the definition of “dependent child” by reducing the age limit to children under the age of 19 and removing the exception for full-time students.  Once implemented, this proposed change will adversely affect the dependent children of all prospective immigrants to Canada.

Current Definition

According Section 2 of the current Immigration and Refugee Protection Regulations (SOR/2002-227), the term “dependent child” means a child who:

1. Has one of the following relationships with the parent: (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent; or (ii) is the adopted child of the parent; and
2. Is in one of the following situations of dependency: (i) is less than 22 years of age and not a spouse or common-law partner; (ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority and actively pursuing a course of academic, professional or vocational training on a full-time basis; or (iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

In other words, the current definition of “dependent child” includes the following:

1. A child who is under 22 years of age and who is not a spouse or common law partner;
2. A child who is 22 years of age or older if that person has depended on the financial support of the parent(s) and has attended school continuously as a full-time student since before the age of 22 (or, if married or in a common-law relationship before that age, since becoming a spouse or common-law partner); and
3. A child who is 22 years of age or older if that person has depended on the financial support of his or her parent(s) since before the age of 22 and is unable to support themselves financially due to a physical or mental condition.

CIC’s Rational for the Proposed Amendment

According to CIC, dependent children represent 30% of the overall immigrants admitted annually to Canada.  It further states that, based on 2012 statistics, dependents under the age of 19 constituted 90% (64,757) of all sponsored children, while those 19 years of age and older constituted 10% (7,237) of all sponsored children.

CIC claims that older dependent children (those who arrive between the ages 19 and 21 years old) have lower economic outcomes than those who arrive in Canada at a younger age (between 15 and 18 years old).  It also claims that older immigrants have a more challenging time fully integrating into the Canadian labour market and this is more evident for immigrants who are not selected based on their own merits (i.e. dependent children).

In addition, CIC claims that fraudulent school attendance documentation is prevalent in some countries and verification of attendance and enrolment can be labour-intensive.

Effect of the Proposed Amendment

Based on the above, CIC is proposing to limit the definition of “dependent children” to those under the age of 19.  It is also proposing to eliminate the exception for full-time students.  However, the exception for older dependents who are unable to support themselves due to a physical or mental condition will be continued.

In addition, the proposed amendments would alter the application fees for overage dependent children in permanent residence cases.  Currently, overage dependent children (22 years old and over) are subject to the same processing fees as spouses and partners of principal applicants; the fee for these dependent children is $550.00CAD while the fee for younger dependants (under 22 years old) is only $150.00CAD.

Once the proposed amendment has been implemented, the only overage dependent children (19 years old and over) will be those who are financially dependent on their parents due to a physical or mental condition. As a result, proposed amendments will reduce the permanent residence application fee for these overage dependent children to $150.00CAD, the same amount that is charged for dependent children under the age of 19.

The definition of “dependent child” contained in Section 2 of the Immigration and Refugee Protection Regulations also applies to dependents of temporary residents such as foreign workers and students.  Although the announcement discusses the proposed amendment only in the context of permanent residence cases, at the present time it is uncertain whether CIC intends to also apply this definition in temporary resident cases.

Proposed Implementation

CIC is proposing an effective date of January 1, 2014, for the above amendment.  For applicants who submit a sponsorship application and/or permanent resident application on or after this date, the proposed new definition for dependent child would apply. For applicants who submitted a permanent resident application prior to January 1, 2014, the current definition of dependent child would continue to apply.

Transitional provisions are also proposed for applicants who would already be in the immigration application process on January 1, 2014, but who may not yet have submitted the permanent resident portion of their immigration application.  The transitional provisions would allow these persons to have their permanent resident applications, including their dependent children, finalized under the criteria in force at the time that their immigration applications were initiated.

The age of dependants is locked-in at the time the permanent resident application is received by CIC.  In certain cases, applicants will have initiated their immigration process years before being in a position to submit an application for permanent residence.  Given the processing for these groups of applicants, the transitional provisions would apply in the following cases:

1. Live-in caregivers come to Canada first as temporary foreign workers, usually without their children. Most (98%) apply for permanent residence and expect to reunite with their children after having gained the required experience, years later.
2. Refugees abroad and refugee claimants have been forced to flee persecution and have little control on the destination and timing of their migration.  It may take years before they are granted protected person status and can file an application for permanent residence.
3. Persons coming to Canada under Section 25.2 of the Immigration and Refugee Protection Act (i.e. public policy consideration) often experience refugee-like situations and may also have to wait some time, once selected under these policies, before being able to submit their permanent resident applications.

In some programs, two applications must be submitted: (a) a sponsorship application, and (b) a permanent resident application. In the past, these applications under the parents and grandparents and resettlement categories could be submitted separately (i.e. the permanent resident application would follow a positive assessment of the sponsorship application).  In order to not penalize applicants who at the effective date of the amendment would not have submitted their permanent resident application, the transitional provisions would also extend to the following groups:

1. Parents and grandparents for whom a sponsorship application alone was submitted before November 5, 2011, the date on which CIC put in place a temporary pause on the acceptance of new sponsorship applications under this category as part of its Action Plan for Faster Family Reunification.
2. Refugees abroad for whom a sponsorship application alone was received before October 18, 2012.  Prior to that date, the refugee’s permanent resident application was received after CIC approved the sponsorship application.

In both cases, the permanent resident application which includes the application for the dependent child, would not have been submitted with the sponsorship application and may not have been received by CIC at the time of coming into force of the proposed new definition.

Conclusion

The proposed amendment to the definition of “dependent child” will be of significant concern for many potential immigrants, who may decide to not immigrate if their older dependent children cannot accompany them.  It is expected that there will considerable resistance to this proposed change during the next seven months.

Introduction

As previously reported, on December 19, 2012, Citizenship, Immigration, and Multiculturalism Minister Jason Kenney (the “Immigration Minister”) announced that the Federal Skilled Worker Program (“FSWP”) would once again begin accepting new applications on May 4, 2013.  However, several key details of the FSWP were not announced at that time.  These outstanding details included:

• The cap on the number of applications that would be accepted without arranged employment in the first year;
• The list of eligible occupations that would not require arranged employment (which in most cases would now mean a Labour Market Opinion); and
• The organizations that would be designated to conduct educational assessments.

Citizenship and Immigration Canada (“CIC”) has now provided these last remaining details.

Eligible Occupations and Numerical Limits

Applicants who do not have arranged employment and who do not qualify under the PhD stream will require at least one year of continuous full-time work experience in one of the listed eligible occupations.  Applicants who possess this work experience may apply without a job offer.

The eligible occupations stream will have an overall cap of 5,000 new applications and sub-caps of 300 applications in each of the 24 occupations on the list.  The list of eligible occupations, with each corresponding 2011 National Occupation Classification (“NOC”) code, is as follows:

• 0211 Engineering managers
• 1112 Financial and investment analysts
• 2113 Geoscientists and oceanographers
• 2131 Civil engineers
• 2132 Mechanical engineers
• 2134 Chemical engineers
• 2143 Mining engineers
• 2144 Geological engineers
• 2145 Petroleum engineers
• 2146 Aerospace engineers
• 2147 Computer engineers (except software engineers/designers)
• 2154 Land surveyors
• 2174 Computer programmers and interactive media developers
• 2243 Industrial instrument technicians and mechanics
• 2263 Inspectors in public and environmental health and occupational health and safety
• 3141 Audiologists and speech-language pathologists
• 3142 Physiotherapists
• 3143 Occupational Therapists
• 3211 Medical laboratory technologists
• 3212 Medical laboratory technicians and pathologists’ assistants
• 3214 Respiratory therapists, clinical perfusionists and cardiopulmonary technologists
• 3215 Medical radiation technologists
• 3216 Medical sonographers
• 3217 Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)

Educational Credential Assessment (“ECA”)

The purpose of the ECA is to determine whether the applicant’s foreign educational credential is authentic and equivalent to a completed credential in Canada.  Applicants who have Canadian educational credentials do not need an ECA, unless they are also submitting a foreign educational credential in support of their application.

As of April 17, 2013, four organizations have been designated by the Immigration Minister to provide ECA reports for purposes of immigrating to Canada under the new FSWP.  Additional organizations may be designated by CIC in the future. The designated organizations are:

• Comparative Education Service: University of Toronto School of Continuing Studies;
• International Credential Assessment Service of Canada;
• World Education Services; and,
• Medical Council of Canada.

The Medical Council of Canada has been designated only for those principal applicants who intend to apply with specialist physician (NOC Code 3111) or general practitioner/family physician (NOC Code 3112) as their primary occupation in their FSWP application.

CIC will only accept ECA reports issued after the date the organization was designated by CIC to provide ECA reports for immigration purposes (April 17, 2013). An ECA report will be valid for immigration purposes for 5 years from the date that it was issued by the designated organization.

Introduction

As previously reported, on January 24, 2013, the Minister of Citizenship, Immigration and Multiculturalism (the “Minister”) announced that Citizenship and Immigration Canada (“CIC”) would launch a Start-Up Visa Program to recruit innovative immigrant entrepreneurs who will create new jobs and spur economic growth. On March 30, 2013, CIC published Ministerial Instructions (the “Instructions”) in the Canada Gazette, which formally establish the new Start-Up Business Class. CIC also published Chapter 27 of the Overseas Processing Manual (“OP 27”), which provides further details regarding the processing of such applications. An overview of the Start-Up Business Class is provided below.

Start-Up Business Class Defined

Pursuant to Section 14.1 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA”), the Instructions establish the Start-Up Business Class as a subgroup of the broader Economic Class described in Subsection 12(2) of IRPA.  According to Subsection 2(2) of the Instructions, foreign nationals are members of the Start-Up Business Class if they:

1. Have obtained a commitment from:
   • One or more designated angel investor groups, confirming that they are collectively investing a total of at least $75,000CAD in a qualifying business; or
   • One or more designated venture capital funds, confirming that they are collectively investing a total of at least $200,000CAD in a qualifying business;
2. Have attained a level of proficiency of at least benchmark Level 5 in either English or French for the four language skill areas (reading, writing, listening, speaking), as set out in the Canadian Language Benchmarks and the Niveaux de Compétence linguistique canadiens, as demonstrated by the results of an evaluation conducted by an organization or institution designated by the Minister for the purpose of evaluating language proficiency under Subsection 74(3) of the Immigration and Refugee Protection Regulations (SOR/2002-227) (“IRPR”);
3. Have completed at least one year of post-secondary education during which the applicant was in good standing at the educational institution, whether or not the applicant obtained an educational credential; and
4. Have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount that is equal to one half of the amount identified (in the most recent edition of the publication concerning low income cut-offs published annually by Statistics Canada under the Statistics Act for urban areas of residence of 500,000 or more) as the minimum amount of before-tax annual income necessary to support the foreign national and his or her family members.

According to Subsection 2(4) of the Instructions, no more than five foreign nationals may seek permanent residence as members of the Start-Up Business Class, pursuant to the same business venture.

Subsection 2(5) of the Instructions also clarifies that a foreign national will not be considered a member of the Start-Up Business Class if he or she intends to participate (or has participated) primarily for the purpose of acquiring a status or privilege under IRPA and not for the purpose of engaging in the business activity for which the commitment was intended.

Designated Angel Investor Groups and Venture Capital Funds

The Instructions list all of the entities that qualify as designated angel investor groups or venture capital funds, for the purposes of the Start-Up Business Class.  The list of designated angel investor groups appears in Schedule 1, and includes the following entities:

1. Angel One Network Inc.;
2. First Angel Network Association; and
3. Golden Triangle Angel Network.

The list of designated venture capital funds appears in Schedule 2, and includes the following entities:

1. Advantage Growth (No.2) L.P.;
2. BDC Venture Capital;
3. Blackberry Partners Fund II LP (d.b.a. Relay Ventures Fund II);
4. Celtic House Venture Partners Fund III L.P.;
5. Celtic House Venture Partners Fund IV LP;
6. DRI Capital Inc.;
7. Golden Opportunities Fund Inc.;
8. INOVIA CAPITAL INC.;
9. New Brunswick Innovation Foundation Inc.;
10. Northwater Intellectual Property Fund;
11. OMERS Ventures Management Inc.;
12. Ontario SME Capital Corporation;
13. Panagea Ventures Fund III, LP;
14. PRIVEQ III Limited Partnership;
15. PRIVEQ IV Limited Partnership;
16. Quorum Investment Pool Limited Partnership;
17. Quorum Secured Equity Trust;
18. Rho Canada Ventures;
19. Summerhill Venture Partners Management Inc.;
20. Tandem Expansion Management Inc.;
21. Vanedge Capital Limited Partnership;
22. Version One Ventures;
23. Wellington Financial LP;
24. Westcap Mgt. Ltd.; and
25. Yaletown Venture Partners Inc..

Qualifying Business

According to Subsection 7(1) of the Instructions, a “qualifying business” includes a corporation incorporated in and carrying on business in Canada if, at the time the commitment is made by the designated angel investor group or venture capital fund:

1. The applicant holds at least 10% of the voting rights attached to all outstanding shares of the corporation; and
2. No person or entities, other than qualified participants, hold 50% or more of the voting rights attached to all outstanding shares of the corporation.

The term “qualified participant” includes: (a) the applicant in respect of the business; (b) a foreign national who has been issued a permanent resident visa as a member of the Start-Up Business Class in respect of the business; (c) a designated angel investor group; or (d) a designated venture capital fund.

Subsection 7(2) clarifies that a business that is not incorporated at the time of the commitment is still considered a qualifying business if the incorporation is conditional upon the issuance of a permanent resident visa to one or more applicants in respect of that business.

Form of Commitment

OP 27 describes a “commitment” as an agreement between the applicant and the investing entity to establish and incorporate a qualifying business in Canada.  Proof and details of this agreement must be submitted by the designated angel investor group or venture capital fund directly to CIC in the form of a completed Commitment Certificate.

A Commitment Certificate is a document which records important information regarding the agreement between the applicant and the investing entity.  The purpose of the Commitment Certificate is to summarize pertinent details of the commitment between the investing entity and the applicant for the purposes of the application for permanent residence.

The Commitment Certificate must be sent directly to CIC by the designated angel investor group or venture capital fund.  The applicant will also receive a letter of support from the designated entity, which he or she will submit with the application.  Upon receipt of the application, CIC will verify that the corresponding Commitment Certificate has been received from the designated investing entity, and that it is still valid.

As stated in Subsection 2(4) of the Instructions, no more than five foreign nationals may be considered members of the Start-Up Business Class in respect of the same business.  Accordingly, the Commitment Certificate issued by the designated angel investor group or venture capital fund may not identify more than five applicants.

If two or more applicants seek permanent residence based on the same business, the commitment may be conditional on the issuance of permanent residence to one or more applicants who may be considered essential to the project.  An essential person is a foreign national who is considered, by the investing entity, to be essential to the business being established under the program.

A section in the Commitment Certificate will identify which applicants in a group are deemed to be “essential.”  If the application for an essential person is refused for any reason, all other applications related to that commitment will also be refused.

There is no limit to the number of designated entities that can support a commitment.  However, when there are multiple designated entities acting in syndication, only one Commitment Certificate will be issued containing all the details and requirements of all participating designated entities.  The syndicate will choose a lead designated entity that will be responsible for compiling and submitting the Commitment Certificate.

Peer Review of Commitments

According to Section 11 of the Instructions, an immigration officer may request that a commitment in respect of a qualifying business be independently assessed by a peer review panel established by an industry association representing the type of entity making the commitment. For example, if a designated angel investor group made the commitment, the National Angel Capital Organization would be responsible for establishing the peer review panel.  Similarly, if a designated venture capital fund had made the commitment, Canada’s Venture Capital and Private Equity Association would be responsible for establishing the peer review.

Although a peer review may be initiated if the immigration officer is of the opinion that such an assessment would assist in making a decision, it may also be made on a random basis.  A peer review panel will only verify if the investing entity has conducted the proper checks and investigations according to industry standards, and will not give a judgment on the wisdom or feasibility of the proposal.  Assessments must be considered by the immigration officer when making his or her decision but will not be considered binding on the officer.

Minimum Language Proficiency

As stated in Section 2(2) of the Instructions, applicants under the Start-Up Business Class must establish a level of proficiency of at least benchmark Level 5, in either English or French.  Language proficiency must be demonstrated through an evaluation conducted by an approved organization or institution.

According to OP27, the results of such an evaluation are considered conclusive evidence of the applicant’s proficiency in the official languages of Canada; immigration officers may not consider other evidence of language ability.  At the present time, the following are considered designated language testing organizations:

1. Paragon Testing Enterprises Inc. and the University of British Columbia administer the Canadian English Language Proficiency Index Program (“CELPIP”).  CELPIP offers the “CELPIP-General (CELPIP-G)” and “CELPIP-Academic (CELPIPA)”; only the CELPIP-G is accepted for CIC purposes.
2. Cambridge ESOL, IDP Australia, and the British Council administer the International English Language Testing System (“IELTS”).  IELTS offers “General Training” and “Academic” options; only the “General Training” tests are accepted for CIC purposes.
3. The Paris Chamber of Commerce (Chambre de commerce et d’industrie de Paris) administers the Test d’évaluation du français (“TEF”).

Education Requirements

As stated in Subsection 2(2) of the Instructions, an applicant must have completed at least one year of post-secondary education while he or she was in good standing at the educational institution.  OP 27 clarifies that distance learning post-secondary institutions are also eligible for consideration.

According to OP 27, proof of education should be in the form of transcripts and a letter of good standing, or certificate or diploma or degree.  Immigration officers will review the documentation provided by the applicant in order to determine the following:

1. Has the applicant completed at least one year of post-secondary study?  The requirement is met based on the standards that exist in the country of study. For example, a technical credit may be the equivalent to a high school diploma in Canada but in the country of study it is considered to be post-secondary.
2. Was the applicant in good standing while he or she was in attendance at the post-secondary educational institution?  Applicants are considered in good standing based on criteria established by the educational institution.  For example, the institution could have a policy which states that a person is not in good standing if they have an unpaid debt such as tuition fees or if they have not returned books to the library.

As stated in Subsection 2(2) of the Instructions, it is not necessary for the applicant to obtain any diploma, degree or trade or apprenticeship credential as a result of having completed at least one year of post-secondary study.

Settlement Funds

As mentioned in Subsection 2(2) of the Instructions, the applicant must clearly demonstrate that he or she has sufficient and available settlement funds.  These funds must be available, transferable, and unencumbered by debts or other obligations.

According to OP 27, immigration officers must be satisfied that the applicant has at his or her disposal (with sufficient liquidity and with the ability to transfer those assets) the necessary threshold of funds to support his or her establishment in Canada upon arrival.  These settlement funds must meet the requirements at the time that the application is made, as well as when the application is finalized.

The amount of funds is assessed according to the applicant’s family size using 50% of Statistics Canada’s most current low income cut-off for urban areas having populations of 500,000 or more.  At the present time, applicants must possess funds that are equal to or greater than the amount listed below for each family size:

Substituted Evaluation

Section 12 of the Instructions authorizes immigration officers to substitute their own evaluation, if they believe that the requirements described in Subsection 2(2) are not a sufficient indicator of whether the applicant will become economically established in Canada.  All substituted evaluation decisions require the written concurrence of a second immigration officer.

Although very discretionary, substituted evaluation permits an immigration officer to approve an applicant even if he or she is unable to satisfy one or more requirements of the Start-Up Business Class, other than the requirement of a commitment from a designated angel investor group or venture capital fund.  For example, an otherwise eligible applicant who does not possess sufficient language proficiency, post-secondary education, or available funds may still be approved under substituted evaluation.

Annual Numerical Limits and Program Duration

As the Start-Up Business Class is a pilot program established under Section 14.1 of IRPA, no more than 2,750 applications may be processed per year.  Although the Instructions do not specifically mention a numerical limitation, by statute, the Start-Up Business Class may not exceed this annual limit.

Section 14.1 of IRPA also limits the duration of the pilot program to five years, commencing on the day on which the Instruction becomes effective; no amendment to or renewal of an instruction may extend the five-year period.  As the Start-Up Business Class began accepting applications on April 1, 2013, it will sunset on April 1, 2018.  However, if the pilot program proves successful, the Canadian Government may amend IRPA to permanently establish the Start-Up Business Class before this date.

The new Federal Skilled Worker Program (“FSWP”) will begin accepting applications as of May 4, 2013. A “temporary pause” on the acceptance of new FSWP applications (subject only to limited exceptions) has been in place since July 1, 2012.

Citizenship and Immigration Canada (“CIC”) has recently reminded applicants who may be preparing to submit applications that it still expects to announce three important elements of the FSWP in April 2013, which will have a significant impact on who can apply under the program. These elements include:

1. The cap on the number of applications that will be accepted in the first year;
2. The new list of priority occupations; and
3. The organizations that will be designated to conduct educational assessments.

Each of these elements is briefly described below.

Cap on the Number of Applications

Prior to July 1, 2012, FSWP applicants who did not have an offer of employment in Canada were limited to a total overall cap of 10,000 a year and a sub-cap of 500 per year applicable to each of the twenty-nine eligible priority occupations. CIC is expected to announce the total cap that will be imposed on such applications during the first year of the new FSWP, as well as the sub-cap applicable to each eligible occupation.

New List of Priority Occupations

CIC is expected to announce a new list of priority occupations that will apply under the new FSWP. FSWP applicants who fall under one of these priority applications will be permitted to apply without a job offer.

Designated Educational Assessment Organizations

The new FSWP requires the designation of organizations and professional bodies that will act as credential evaluators. These designated evaluators will authenticate individual foreign credentials and determine their equivalent in Canada for the purposes of the FSWP:

1. Applicants in regulated occupations will be required to submit the relevant designated professional body’s foreign credential evaluation establishing that the foreign credential is equivalent to the Canadian educational credential required to practice in that occupation.
2. Applicants in non-regulated occupations will be required to submit a foreign educational assessment provided by a designed organization to demonstrate that their educational credential is equivalent to a Canadian educational credential.

Applicants whose credentials do not exist in Canada or do not have a credential equivalent to the completed Canadian version in Canada will not be eligible under the FSWP.

CIC cautions future applicants that anyone preparing their application before this information is announced will do so at their own risk. Applications that do not meet the requirements that will be announced in April 2013 will not be processed.

On January 24, 2013, Citizenship, Immigration and Multiculturalism Minister Citizen Jason Kenney (the “Immigration Minister”) announced that Citizenship and Immigration Canada (“CIC”) would launch a Start-Up Visa Program to recruit innovative immigrant entrepreneurs who will create new jobs and spur economic growth. Of course, a formal announcement relating to this program was expected for some time; I previously reported that the Immigration Minister announced consultations on the possible creation of such a program back in April 2013.

Although I have yet to be recognized for playing any role in the creation of the Start-Up Visa Program, I first raised the idea of a start-up visa directly with the Immigration Minister near the end of 2011, during a fundraiser for a local Conservative party candidate. At the time, Congress was considering the Start-Up Visa Act of 2011, which proposed a similar program for the United States. I explained that the Start-Up Visa Act of 2011 was unlikely to pass in Congress but this gave Canada a unique opportunity to attract entrepreneurs who might otherwise be destined for the United States.

Although the Immigration Minister initially thought that a start-up visa program would simply be a variation of the existing Entrepreneur Class (which is currently on hold), I explained that a “start-up” visa program would differ from existing investor and entrepreneur options to the extent that the entrepreneur would not need to be the source of investment capital. Such a program would enable entrepreneurs who establish start-up businesses using capital contributed by third parties, such as venture capital firms or angel investors, to seek permanent residence in Canada. By the end of our discussion, he warmed up to the idea and, in April 2012, the Immigration Minister formally announced consultations in connection with such a program.

The Start-Up Visa Program is a pilot program that will commence on April 1, 2013, and will run for five years. Although the most recent announcement does not mention whether there will be an annual cap, the April 2012 announcement indicated that these types of pilot programs would be limited to 2750 applications per year. If the Start-Up Visa Program proves successful during the five-year trial period, CIC may formally introduce it as a new economic class in the Immigration and Refugee Protection Regulations.

Foreign entrepreneurs seeking permanent residence under the Start-Up Visa Program will require the support of a Canadian angel investor group, venture capital fund or a business incubator before they can apply. Pursuant to agreements signed with CIC, these organizations will recommend which of their members should be designated as eligible to participate in the Start-Up Visa Program, establish expert peer review panels to assist CIC officers in case determinations, and provide assurance that industry standards of due diligence were followed.

Initially, Canada’s Venture Capital & Private Equity Association and the National Angel Capital Organization will be active partners in the Start-Up Visa Program. CIC also intends to include the Canadian Association of Business Incubation as a partner in the program at some point in the near future. The process of designating which Canadian angel investor groups and venture capital funds will be eligible to participate in the Start-Up Visa Program will begin early this year. The process of designating which Canadian business incubators will be eligible to participate in the Start-Up Visa Program will begin at a later date.

Foreign entrepreneurs will also have to meet certain criteria regarding language proficiency and educational qualifications. The full set of criteria will be published in the spring of 2013.

On December 8, 2012, Citizenship and Immigration Canada (“CIC”) published proposed regulations that will authorize the collection and use of biometric data from certain foreign nationals who make an application for a temporary resident visa (“TRV”), study permit, or work permit. Biometrics is the measurement of an individual’s unique physical characteristics, such as fingerprints and facial image; an applicant’s identity can be established through biometrics because of the uniqueness of these identifiers.

Starting in 2013, TRV, study permit, and work permit applicants from certain visa-required countries and territories who seek to enter Canada will be required to have their biometric information (fingerprints and photograph) collected overseas before arriving in Canada. Canadian citizens and permanent residents would not be subject to the proposed regulation.

The fingerprints collected abroad would be sent to the Royal Canadian Mounted Police for storage and would be checked against the fingerprint records of refugee claimants, previous deportees, persons with Canadian criminal records, and previous temporary resident applicants before a visa decision is made. The biometric identity established abroad would then be checked by a Canada Border Services Agency (“CBSA”) officer at a Canadian port of entry, when the temporary resident applied for admission to Canada.

The CBSA officer will initially compare the digital photograph in the system with the individual who was seeking entry. Where a CBSA officer has concerns regarding the identity of that individual, he or she would also have the discretion to request an electronic scan of the individual’s fingerprints at an equipped port of entry for comparison against those collected abroad.

Under the proposed regulations, persons from the following countries and territory who apply for a TRV, study permit or work permit will be required to provide their fingerprints and photograph at the time of application:

1. A citizen of Colombia, Haiti or Jamaica (as of September 2, 2013);
2. A citizen of Albania, Algeria, Democratic Republic of Congo, Eritrea, Libya, Nigeria, Saudi Arabia, Somalia, South Sudan, Sudan or Tunisia (as of October 15, 2013);
3. A citizen of Afghanistan, Bangladesh, Burma, Cambodia, Egypt, Iran, Iraq, Jordan, Laos, Lebanon, Pakistan, Sri Lanka, Syria, Vietnam or Yemen (as of December 7, 2013); and
4. A holder of a passport or travel document issued by the Palestinian Authority (as of December 7, 2013).

The proposed regulations would include exemptions from biometric enrolment for certain categories of applicants. Applicants who fall into the following categories would be exempted from the requirement to provide biometric information:

1. A person who is under the age of 14 or over the age of 79;
2. 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 intergovernmental organization of which Canada is a member, or is a family member of one of them; and
3. A holder of a valid United States entry visa who is destined to or returning from that country, is seeking to enter Canada for a period of less than 48 hours and is travelling by transporter’s vehicle to a destination other than Canada, or transiting through or stopping over in Canada for refuelling or for the continuation of their journey in another transporter’s vehicle.

The proposed regulations would also exempt the following individuals from the requirement to provide biometric information when applying for a study or work permit:

1. A person in Canada who has made a claim for refugee protection that has not been determined;
2. A person in Canada on whom refugee protection has been conferred; and
3. A person who is a member of the Convention refugees abroad class or a humanitarian-protected persons abroad class.

Applicants who are subject to the biometric requirement will be required to pay a biometrics fee of $85.00CAD. However, the following applicants would be exempted from the payment of the biometrics fee:

1. A member of the suite of 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 intergovernmental organization of which Canada is a member;
2. A member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of that visiting force under paragraph 4(c) of that Act and their family members;
3. A person who is seeking to enter Canada for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American States, as a participant, for the purpose of attending a meeting as a representative of the Organization of American States or the Caribbean Development Bank, or for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American States, at the invitation of the Government of Canada;
4. A person who is seeking to enter Canada as a competitor, coach, judge, team official, medical staff member or member of a national or international sports organizing body participating in the Pan-American Games, when held in Canada, or as a performer participating in a festival associated with any of those Games;
5. A person who is seeking to enter Canada for a period of less than 48 hours and is travelling by transporter’s vehicle to a destination other than Canada, or transiting through or stopping over in Canada for refuelling or for the continuation of their journey in another transporter’s vehicle;
6. A person applying for a study permit or work permit and is
   • A family member of a person in Canada who has made a refugee claim that has not yet been determined by the Refugee Protection Division;
   • A family member of a person in Canada on whom refugee protection has been conferred; and
   • A family member of a person who is a member of the Convention refugees abroad class or a humanitarian-protected persons abroad class;
7. A person whose work in Canada would create or maintain reciprocal employment for Canadian citizens or permanent residents of Canada in other countries and who is a family member of an officer of a foreign government sent, under an exchange agreement between Canada and one or more countries, to take up duties with a federal or provincial agency; and
8. A person with a diplomatic or official passport (i.e. a government official) who is applying for a TRV, a study permit or a work permit.

The proposed regulations would also provide for a maximum fee of $170 for family members who apply for a TRV at the same time and place and of $255 for groups of three or more performing artists and their staff who apply for a work permit at the same time and place. These maximum fees are consistent with those currently offered to families and performing artists and their staff when applying for visas or work permits.

On December 13, 2012, Citizenship, Immigration and Multiculturalism Minister Jason Kenney and United States Ambassador to Canada David Jacobson signed the U.S.-Canada Visa and Immigration Information-Sharing Agreement (the “Agreement”) in furtherance of the Perimeter Security and Economic Competitiveness Action Plan (the “Action Plan”), which was signed in 2011 by Prime Minister Stephen Harper and President Barack Obama. As part of the Action Plan, Canada and the United States committed to share immigration information to improve border efficiency and security, by establishing and verifying the identities of foreign nationals, and identifying those who were inadmissible, at the earliest opportunity.

The Agreement authorizes development of arrangements under which Canada may send an automated request for data to the United States, such as when a third country national applies to Canada for a visa or claims asylum. Such a request would contain limited information, such as name and date of birth in the case of biographic sharing, or an anonymous fingerprint in the case of biometric sharing. If the identity matches that of a previous application, immigration information may be shared, such as whether the person has previously been refused a visa or removed from the other country. The same process would apply in reverse when a third country national applies to the United States for a visa or claims asylum.

According to the Agreement, no information will be shared on Canadian or United States citizens or permanent residents. However, it will allow both countries to share information regarding third-country nationals who apply for a visa or a permit to travel to either country. The Agreement also provides an additional tool for regular, systematic information sharing on inland asylum claimants.

Biographic immigration information sharing is set to begin in 2013 and biometric sharing in 2014.

As we previously reported, when Citizenship and Immigration Canada (“CIC”) announced that it was cancelling the backlog of Federal Skilled Worker (“FSW”) cases that were filed prior to 2008, several Provincial Nominee Programs (“PNPs”) began offering some of those applicants the opportunity to apply for a provincial nomination under CIC’s FSW Backlog Reduction Pilot (the “FSW Pilot”). The PNPs in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, Newfoundland and Labrador and Northwest Territories were given the opportunity to identify FSW backlog applicants for possible nomination based on the applicant’s province of intended destination and work experience.

Some of the participating PNPs requested that provincial nominees identified through the FSW Pilot, but who did not yet have a job offer, be eligible for province-specific open work permits, in order to facilitate faster labour market entry while their permanent resident processing was pending. On November 5, 2012, in response to these requests, CIC issued Operational Bulletin 470 (“OB 470).

According to OB 470, as of November 5, 2012, eligible foreign nationals who have been nominated by a participating PNP under the FSW Pilot may now apply for one of 1,500 province-specific open work permits that are available. The issuance of the province-specific open work permit will not be conditional upon the nominated applicant having submitted an application for permanent residence, based on his or her nomination certificate. The issuance of the nomination certificate itself will allow the foreign national to apply for the work permit.

In order to qualify for one of the province-specific open work permits, applicants must meet the following criteria:

1. The applicant must already be a participant in the FSW Pilot.
2. The work permit application must be accompanied by a letter of support from the nominating province that:
   • Confirms the applicant is being nominated under the FSW Backlog Reduction Pilot; and
   • Indicates the WP will only be valid for work in the nominating province.

Work permits issued under the FSW Pilot may be valid for a maximum of two years. However, because they are intended only to facilitate faster labour market entry while the foreign national’s permanent resident application is pending, extensions beyond the initial two year validity period will not be permitted.

On September 28, 2012, the Minister of Citizenship, Immigration and Multiculturalism announced that citizenship applicants will now be required to provide up-front objective evidence of their language ability at the time of their citizenship application.  The effective date of this change is November 1, 2012.

According to Paragraph 5(1)(d) of the Citizenship Act (R.S.C., 1985, c. C-29), an applicant for a grant of Canadian citizenship must have an adequate knowledge of one of the official languages of Canada. Adequate knowledge is defined as the ability to speak and understand basic statements and questions in the given language.

All adult applicants 18 to 54 years of age who are applying for Canadian citizenship are assessed on their ability to communicate in English or French. Currently, language ability is assessed by a written citizenship test; an applicant who fails the written test must pass an oral interview with a citizenship judge.

Citizenship and Immigration Canada (“CIC”) officials also confirm some of the basic information on the application for citizenship with the applicant at the time of testing.  Where there is an indication that the applicant does not comprehend basic spoken statements and/or questions, this information is passed on to the citizenship judge.  The judge may then take this information into consideration when determining whether the applicant meets the language requirement.

There is currently no procedure in place to objectively test the language abilities of Canadian citizenship applicants.  Under the new rules, applicants will now be required to submit objective evidence that they have achieved the Canadian Language Benchmark level 4, in speaking and listening, when they file their application.  Acceptable evidence of language ability may include the following:

• The results of a CIC-approved third-party test;
• Evidence of the applicant’s completion of secondary or post-secondary education in English or French; or
• Evidence that the applicant has achieved the appropriate language level in certain government-funded language training programs.

The requirement for adult applicants to provide objective evidence of language ability with their citizenship submission applies to applications received as of November 1, 2012.  After that date, CIC will return any citizenship application, filed by an applicant between the ages of 18 and 54, that does not include objective evidence of language ability.