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.

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.

On April 29, 2014, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 572, which provided guidance on the implementation of the twelfth set of Ministerial Instructions. These Ministerial Instructions established caps on the Federal Skilled Worker Class (“FSW”) Class, Federal Skilled Trades (“FST”) Class, and Canadian Experience Class (“CEC”).  Further details appear below.

Limit on the Number of FSW Applications to be Processed

A maximum of 25,000 new, complete FSW applications will be considered for processing under the occupation list stream between May 1, 2014, and April 30, 2015, unless otherwise indicated in a future Ministerial Instruction. There is no limit on the number of new applications with offers of arranged employment that will be considered for processing.

Within the overall cap of 25,000 applications, a maximum of 1,000 complete FSW applications for each eligible occupation in Skill Type 0, or Skill Level A or B as per the 2011 version of the National Occupational Classification (“NOC”) will be considered for processing.  The list of eligible occupations is as follows:

1. Senior managers – financial, communications and other business services (0013)
2. Senior managers – trade, broadcasting and other services, n.e.c. (0015)
3. Financial managers (0111)
4. Human resources managers (0112)
5. Purchasing managers (0113)
6. Insurance, real estate and financial brokerage managers (0121)
7. Managers in health care (0311)
8. Construction managers (0711)
9. Home building and renovation managers (0712)
10. Managers in natural resources production and fishing (0811)
11. Manufacturing managers (0911)
12. Financial auditors and accountants (1111)
13. Financial and investment analysts (1112)
14. Securities agents, investment dealers and brokers (1113)
15. Other financial officers (1114)
16. Professional occupations in advertising, marketing and public relations (1123)
17. Supervisors, finance and insurance office workers (1212)
18. Property administrators (1224)
19. Geoscientists and oceanographers (2113)
20. Civil engineers (2131)
21. Mechanical engineers (2132)
22. Electrical and electronics engineers (2133)
23. Petroleum engineers (2145)
24. Information systems analysts and consultants (2171)
25. Database analysts and data administrators (2172)
26. Software engineers and designers (2173)
27. Computer programmers and interactive media developers (2174)
28. Mechanical engineering technologists and technicians (2232)
29. Construction estimators (2234)
30. Electrical and electronics engineering technologists and technicians (2241)
31. Industrial instrument technicians and mechanics (2243)
32. Inspectors in public and environmental health and occupational health and safety (2263)
33. Computer network technicians (2281)
34. Nursing co-ordinators and supervisors (3011)
35. Registered nurses and registered psychiatric nurses (3012)
36. Specialist physicians (3111)
37. General practitioners and family physicians (3112)
38. Dietitians and nutritionists (3132)
39. Audiologists and speech-language pathologists (3141)
40. Physiotherapists (3142)
41. Occupational therapists (3143)
42. Respiratory therapists, clinical perfusionists and cardiopulmonary technologists (3214)
43. Medical radiation technologists (3215)
44. Medical sonographers (3216)
45. Licensed practical nurses (3233)
46. Paramedical occupations (3234)
47. University professors and lecturers (4011)
48. Psychologists (4151)
49. Early childhood educators and assistants (4214)
50. Translators, terminologists and interpreters (5125)

In addition, a maximum of 500 applications will be considered for processing under a PhD student/graduate stream during the above period.

Limit on the Number of FST Applications to be Processed

A maximum of 5,000 new, complete FST applications will be considered for processing for the period between May 1, 2014, until April 30, 2015, unless otherwise indicated in a future Ministerial Instruction.

Within the overall 5,000 cap, a maximum of 100 complete FST applications for each eligible skilled trade occupation will be considered for processing. Pursuant to Subsection 87.2(1) of the Immigration and Refugee Protection Regulations, eligible skilled trade occupations are restricted to occupations in the following categories listed in Skill Level B as per the 2011 version of the NOC:

1. Major Group 72, industrial, electrical and construction trades;
2. Major Group 73, maintenance and equipment operation trades;
3. Major Group 82, supervisors and technical occupations in natural resources, agriculture and related production;
4. Major Group 92, processing, manufacturing and utilities supervisors and central control operators;
5. Minor Group 632, chefs and cooks; and
6. Minor Group 633, butchers and bakers.

Caps apply irrespective of whether an application is made with a qualifying offer of employment or a certificate of qualification from a provincial or territorial apprenticeship authority.

Limit on the Number of CEC Applications to be Processed

A maximum of 8,000 new, complete CEC applications will be considered for processing for the period between May 1, 2014, until April 30, 2015, unless otherwise indicated in a future Ministerial Instruction.  Within the overall 8,000 cap, a maximum of 200 complete CEC applications for each eligible occupation in Skill Level B as per the 2011 version of the NOC will be considered for processing. Work experience in the following six ineligible occupations cannot be used to qualify for processing:

1. Unit Group 1221, administrative officers;
2. Unit Group 1241, administrative assistants;
3. Unit Group 1311, accounting technicians and bookkeepers;
4. Unit Group 6211, retail sales supervisors;
5. Unit Group 6311, food service supervisors; and
6. Unit Group 6322, cooks.

There is no sub-cap on CEC applications for occupations in NOC Skill Type 0 or Skill Level A, but these occupations are subject to the overall cap of 8,000 new, complete applications.

Processing of Existing Applications

The Ministerial Instructions do not apply to FSW, FST and CEC applications received before May 1, 2014.  All FSW, FST and CEC applications received by the Centralized Intake Office before this date will continue to be considered for processing subject to the program requirements and Ministerial Instructions in effect at the time of application receipt.

On February 11, 2014, the Government of Canada announced its intention to terminate the Federal Immigrant Investor Program (“IIP”) and Federal Entrepreneur Program (“EP”) and eliminate the large backlog of applications.  These immigration-related announcements were contained in the Canadian Government’s 2014 Budget (the “Economic Action Plan 2014”).

The Economic Action Plan 2014 proposes to terminate IIP and EP applications filed on or before February 11, 2014, and to return the filing fees paid to those applicants.  However, before this plan can be implemented, the Budget Implementation Act must still be passed by Parliament and receive Royal Assent.

According to Operational Bulletin 566 (“OB 566”), published by Citizenship and Immigration Canada (“CIC”) on February 12, 2014, the processing of IIP and EP applications will continue according to routine office procedures until further notice.  Of course, Canada has not accepted any new IIP applications since July 1, 2012, and has not accepted any new EP applications since July 1, 2011.  OB 566 refers only to cases currently in the backlog.

There has been no announcement regarding which cases currently in the backlog will be processed to completion.  Based on the process used by CIC when it eliminated the backlog of Federal Skilled Worker cases, it is likely that the Budget Implementation Act will terminate all applications that have not reached a specific stage of approval by a specified cut-off date.  Unfortunately, there is no information available regarding what stage of completion and what cut-off date will be used.

According to the Canadian Government, the global economy has changed significantly since the IIP was created three decades ago.  Investment capital flows increasingly freely across borders, and interest rates are low.  Other peer countries have already adapted by increasing the investment and commitment required under their programs.

The Canadian Government has also stated that the EP was designed in the 1970s when Canada’s economic priorities were different from what they are today.  At that time, the focus was on protecting jobs in Canada.  However, a more globalized economy requires a shift towards innovation, productivity and creating better jobs and stronger businesses that can compete on a global scale.

In place of the these programs, the Canadian Government will introduce a new Immigrant Investor Venture Capital Fund pilot program, which will require immigrants to make a real and significant investment in the Canadian economy.  The Government will also undertake consultations on a potential Business Skills pilot program.

These new pilot programs will be implemented by way of Ministerial Instructions, pursuant to Section 14.1 of the Immigration and Refugee Protection Act (“IRPA”), in the same manner as the Start-Up Visa Program.  Under Section 14.1, no more than 2,750 applications may be processed each year under a pilot program.  In addition, a pilot program may only be implemented for a maximum period of five years, after which the Canadian Government must amend IRPA if it wishes to establish a permanent program.

Background

In early April 2013, it was reported that forty-five Royal Bank of Canada (“RBC”) employees in Toronto would be losing their jobs because the company had outsourced several technology services to iGate, a California-based firm that specializes in sending jobs offshore.  RBC faced a severe public backlash over the incident.  Questions were also raised regarding how iGate had brought its own employees into Canada under the Temporary Foreign Worker Program (“TFWP”), so that they could be trained at RBC offices.

As a result of the RBC incident, the Government of Canada announced several changes to the TFWP.  On April 29, 2013, the Minister of Human Resources and Skills Development (“HRSDC”) and the Minister of Citizenship, Immigration and Multiculturalism, announced that they were introducing changes, which would:

• Immediately require employers to pay temporary foreign workers at the prevailing wage by removing the existing wage flexibility;
• Immediately suspend the Accelerated Labour Market Opinion (“A-LMO”) process;
• Increase the Government of Canada’s authority to suspend and revoke work permits and Labour Market Opinions (“LMOs”) if the program is being misused;
• Add questions to employer LMO applications to ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs;
• Ensure employers who rely on temporary foreign workers have a firm plan in place to transition to a Canadian workforce over time through the LMO process;
• Introduce employer fees for the processing of LMOs and increase the fees for work permits so that the taxpayers are no longer subsidizing the costs; and
• Identify English and French as the only languages that can be used as a job requirement.

Some of these changes were implemented administratively.  Other changes will require regulatory amendments before they can be implemented.

Recently Implemented Administrative Changes

As previously reported, HRSDC announced last year that it would permit employers to pay the temporary foreign worker (“TFW”) up to 15% less than the average wage for higher skilled occupations (NOC Skill Levels 0, A, or B) or 5% less than the average wage for lower skilled occupations (NOC Skill Levels C or D), if they could document that their Canadian workers were also receiving the same wage.  This flexibility was due to the fact that the average wage figures established by Statistics Canada were not always appropriate.   For example, they did not consider a particular worker’s level of experience in the field or the presence of a very large employer in the region that paid above average wages to its workers.  In any event, HRSDC has now removed this wage flexibility.  Ironically, this may require certain employers to pay TFWs more than their Canadian counterparts.

Also, as previously reported, HRSDC announced last year that it was implementing an A-LMO initiative that would allow certain employers, who had an established track record of compliance, to obtain expedited processing of their LMOs.  Although the A-LMO program was considered a success, HRSDC has now suspended it.  Although the announcement on April 29 suggested that the suspension of the A-LMO program was temporary, it is unknown when the program will resume.

In addition, HRSDC is now requiring employers who have submitted an LMO application to complete a Canadian Labour Market Impact Questionnaire, which asks questions about whether the entry of the TFW will lead to job losses due to outsourcing or offshoring, or otherwise facilitate outsourcing or offshoring.  Presumably, answering “yes” to one or more of these questions will result in a denial.

Finally, HRSDC already appears to be prohibiting the use of foreign languages as a job requirement.  However, knowledge of English and/or French can still be used as job requirement, when appropriate.

Proposed Regulatory Amendments

As mentioned above, some of the changes previously announced by the Government of Canada will require regulatory amendments before they can be implemented.  In furtherance of this objective, Citizenship and Immigration Canada (“CIC”) published proposed regulatory amendments to the Immigration and Refugee Protection Regulations (“IRPR”), SOR/2002-227, in the Canada Gazette on June 8, 2013.  These proposed amendments are described in greater detail below.

Conditions Applicable to All Work Permits

Under the proposed regulations, all employers will be required to demonstrate that they are complying with (or that they have complied with) certain conditions during the period of the TFWs work permit:

• The employer (other than the employer of a live-in caregiver) must be actively engaged in the business in respect of which the offer of employment was made;
• The employer must comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the TFW works;
• The employer must provide a TFW with employment in the same occupation as that set out in that TFW’s offer of employment and with wages and working conditions that are substantially the same as, but not less favourable than, those contained in the offer;
• The employer must make reasonable efforts to provide TFWs with a work place that is free of abuse, specifically:
  • Physical abuse, including assault and forcible confinement,
  • Sexual abuse, including sexual contact without consent,
  • Psychological abuse, including threats and intimidation, and
  • Financial abuse, including fraud and extortion;
  • The employer must not be convicted of an offence of human trafficking under the Immigration and Refugee Protection Act, unless there has been a final determination of an acquittal or a pardon/record suspension has been granted; and
  • The employer must not be convicted, or discharged, under the Criminal Code of any of the following offences, unless there has been a final determination of an acquittal or a pardon/record suspension has been granted:
    • Trafficking in persons (or related offence);
    • An offence of a sexual nature (or an attempt) against an employee;
    • An offence causing death or bodily harm to an employee;
    • Uttering threats to cause death or bodily harm against an employee; or
    • An offence involving the use of violence (or an attempt) against an employee.

In addition, the employer must not be convicted outside Canada of an offence that would constitute one of the above offences if committed in Canada, unless there has been a final determination of an acquittal.

These conditions will typically be enforced by CIC.

Conditions Applicable to LMO-Based Work Permits

Where an LMO is required, employers who are issued a positive LMO will be required to comply with the several conditions during the period of foreign national’s employment (or, where applicable, during any other period that has been agreed to by the employer and HRSDC).  As appropriate, employers will be required to demonstrate that they are complying with, or have complied with, one or more of the following conditions:

• Employers must ensure that the employment of the foreign national will result in direct job creation or job retention for Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
• Employers must ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
• Employers must make reasonable efforts to hire or train, or hire or train, Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit; and
• In the case of an employer who employs a TFW as a live-in caregiver, the employer must:
  • Ensure that the TFW resides in a private household and provides, without supervision, the care for which the TFW was employed;
  • Provide the TFW with adequate furnished and private accommodations in the household; and
  • Have sufficient financial resources to pay the TFW the wages offered.

The exact conditions with which a particular employer will be required to comply depend on their specific LMO and will be established by HRSDC prior to the issuance of the LMO.  These conditions will typically be enforced by HRSDC.

Improved Compliance Verification

The current regulations provide that returning employers seeking to hire TFWs, including live-in caregivers, are required to demonstrate compliance before they are granted a positive LMO or the employer is granted a work permit.  CIC and HRSDC may examine previous offers of employment within the two years preceding the date of receipt of a new LMO or work permit application and the employer may be required to produce evidence of compliance (i.e. that they provided each TFW with substantially the same wages and working conditions as those set out in their offer of employment).  However, CIC and HRSDC can only verify compliance at the time that a new LMO or work permit application is submitted by the employer.  As a result, unless a subsequent LMO or work permit is filed, it is impossible to verify whether the employer has complied with the terms of a previous job offer.

Under the proposed amendments, employers will now be required to demonstrate that, within the six years preceding the date of receipt of a new LMO or work permit application, that they provided each TFW with substantially the same wages and working conditions as, but not less favorable than, those set out in their previous offer of employment.  Employers will also be required to retain documents that demonstrate their compliance with any conditions that were imposed on them, for a period of six years after the date that the TFWs work permit expires.

In addition, the proposed amendments will allow a compliance verification inspection in the following cases:

• A CIC officer or the Minister of HRSDC has a reason to suspect that the employer is not complying with or has not complied with any conditions imposed;
• The employer has not complied with conditions in the past; or
• The employer is randomly chosen for verification compliance.

In other words, compliance verification will no longer be triggered solely by the filing of a subsequent LMO or work permit application by the employer.  It can be initiated at any time during the compliance verification period.

New Verification Compliance Inspection Powers

Under the proposed amendments, for the purposes of verifying compliance, CIC or HRSDC will have the authority to require an employer to report at any specified time and place in order to answer questions and provide documents that relate to compliance with any condition imposed on it.  HRSDC may also exercise its authority to verify the conditions that would typically be enforced by CIC, at the request of a CIC officer.

More significantly, CIC and HRSDC will have the authority to enter and inspect any premises or place where the TFW works, without the consent of the employer.  Upon entering the premises or place where the TFW works, CIC or HRSDC may:

• Ask the employer and any person employed by the employer any relevant questions;
• Require from the employer, for examination, any documents found in the premises or place;
• Use copying equipment in the premises or place, or require the employer to make copies of documents, and remove the copies for examination or, if it is not possible to make copies in the premises or place, remove the documents in order to make copies;
• Take photographs and make video or audio recordings;
• Examine anything in the premises or place;
• Require the employer to use any computer or other electronic device in the premises or place in order to allow the officer to examine any relevant document contained in or available to it; and
• Be accompanied or assisted in the premises or place by any person required by CIC or HRSDC.

The above powers may be exercised by CIC or HRSDC without the consent of the employer and without a warrant.  There is only one exception described in the proposed amendments – if the TFW is employed at a dwelling house (for example, in the case of a live-in caregiver), CIC and HRSDC may only enter without the occupant’s consent if they are in possession of a warrant issued pursuant to the regulations.

Information Sharing Between CIC and HRSDC

The proposed regulatory amendments include an information-sharing provision that will allow the disclosure of information from CIC to HRSDC, in relation to an application for a work permit or an employer’s compliance with the conditions imposed upon them.  They also include a provision that will allow the disclosure of information from CIC to the competent authorities of the provinces and territories in relation to the above matters.

Miscellaneous Amendments

The proposed regulatory amendments will also implement the following miscellaneous changes:

• Subsection 203(1.1) of the IRPR, which describes circumstance in which an employer’s failure to comply with the conditions imposed is justified, will be amended to include “force majeure” as an additional justification ground.
• The issuance of an LMO or work permit will be prohibited where the foreign national intends to work for an employer who, on a regular basis, offers stripping, erotic dance, escort services, or erotic massages.  The Ministerial Instructions issued in 2012 already prohibited the processing of work permit applications filed by TFWs who would be working in a sector where there were “reasonable grounds to suspect a risk of sexual exploitation of some workers.”
• All temporary residents will be prohibited from entering into an employment agreement or extending the term of an employment agreement with an employer who, on a regular basis, offers stripping, erotic dance, escort services, or erotic massages.
• The prevailing wage rate will now be determined by HRSDC, by taking into account the rates that are made publicly available by the Minister of HRSDC and the wages paid to Canadian citizens and permanent residents by the employer making the offer, if that information is provided by the employer on request of that Minister.
• Currently, work permits may not be issued when the specific work that the foreign national intends to perform is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute, except where all or almost all of the workers involved in the labour dispute are not Canadian citizens or permanent residents and the hiring of workers to replace the workers involved in the labour dispute is not prohibited by the Canadian law applicable in the province where the workers involved in the labour dispute are employed.  To ensure consistent assessments of this factor, the above exception will be eliminated.

Effective Date of Regulatory Amendments

The above regulatory amendments will come into force on the day that they are registered.

A new article on Canada’s New Federal Skilled Worker Program has now been published in my Canadian Immigration Handbook.

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.

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.

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.

Introduction

On August 18, 2012, Citizenship and Immigration Canada (“CIC”) published proposed regulatory amendments (the “Proposed Regulations”) in the Canada Gazette, which will significantly alter the Federal Skilled Worker Class (“FSWC”), create a new Federal Skilled Trades Class (“FSTC”), and liberalize the Canadian Experience Class (“CEC”).  A detailed summary of these proposed changes is provided below.

Alterations to the FSWC

Background

As previously reported, on July 1, 2012, CIC imposed a “temporary pause” on the acceptance of new FSWC applications.  The reasons given for this temporary pause were to allow CIC to manage inventory pressures and to align future intake with the implementation of proposed regulatory changes to the Federal Skilled Worker Class.  However, no details of the proposed regulatory changes were provided until now.

The recently-published Proposed Regulations now confirm that CIC intends to rebalance the number of points given among the existing FSWC criteria and to impose additional requirements on some criterion before points will be awarded.  A summary of the key changes appears below.

Minimum Language Proficiency Standards and Higher Points for Language Ability

The Proposed Regulations will require minimum language abilities in order to qualify for the FSWC.  It will also significantly increase the maximum points awarded for fluency in one official language from 16 points to 25 points.  Although the Minister of Citizenship, Immigration and Multiculturalism (the “Minister”) will publish the language threshold at a later date, it is expected that the threshold will be set at the Level 7 of the Canadian Language Benchmark (“CLB”) for all four abilities (speaking, listening, reading, and writing); this threshold corresponds to having “adequate intermediate proficiency.”

The maximum number of points for the second official language will be also reduced from 8 points to 4 points, for abilities at CLB 5 and above.  This reflects CIC’s research and feedback, which found that this factor did not contribute to positive economic outcomes for the majority of applicants.

Age Criteria to Favour Younger Workers

CIC states that younger immigrants tend to integrate more rapidly into the labour market, and they usually spend a greater number of years contributing to Canada’s economy.  As a result, the Proposed Regulations will favour younger immigrants by awarding a maximum of 12 points for applicants from 18 to 35 years of age (compared to applicants from 21 to 49 years of age who receive maximum points under the present criteria).  Applicants between 36 and 46 years of age will receive diminishing points and those 47 years of age or older will receive no points.

Fewer Points for Foreign Work Experience

CIC states that foreign work experience is largely discounted by Canadian employers and is a weak predictor of economic success.  Therefore, the Proposed Regulations will reduce the total number of points given for work experience from 21 to 15 and will increase the years of experience required to achieve the maximum number of points from 4 years to six years.

Foreign Credential Evaluation Required for Education Points

The Proposed Regulations will authorize the approval of organizations and professional bodies as designated credential evaluators.  These designated evaluators will authenticate individual foreign credentials and determine their equivalent in Canada for the purposes of the FSWC.

Where an applicant has listed a regulated occupation in their application, he or she 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.  Applicants in non-regulated occupations must 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 FSWC.

Labour Market Opinion (“LMO”) Required for Arranged Employment

CIC states that applicants who immigrate with a valid job offer earn 79% more in wages in the first three years after arrival than people without arranged employment.  However, the potential for fraud requires a more rigorous assessment of the employer and the job offer.

The Proposed Regulations will require employers to apply for an LMO from Human Resources and Skills Development Canada (“HRSDC”) on behalf of an applicant under the FSWC, in the same manner as temporary foreign workers; the arranged employment opinion (“AEO”) currently being used will also be eliminated.  FSWC applicants who obtain an approved LMO from HRSDC will continue to receive 15 points (10 points for arranged employment and 5 points for adaptability).

R82(2) of the current regulations define “arranged employment” to include a skilled worker in Canada who holds an LMO-exempt work permit issued pursuant to:

1. R204(a) [international agreements such as the NAFTA or GATS];
2. R205(a) [including C10 significant benefit to Canada and C12 intracompany transferee work permits]; or
3. R205(c)(ii) [for reasons of public policy relating to the competitiveness of Canada's academic institutions or economy, including C41 work permits for spouses of skilled workers, C42 work permits for spouses of foreign students, C43 post-graduation work permits for students, and C25 off-campus work permits for students].

Applicants who hold these types of LMO-exempt work permits and have a qualifying job offer do not require an LMO or AEO in order to establish arranged employment.

Under the Proposed Regulations, the definition of arranged employment will now be limited to skilled workers who hold an approved LMO or hold an LMO-exempt work permit under R204(a) [international agreements]; such work permit holders must also establish that their employer is making a qualifying job offer (i.e. permanent and non-seasonal).  No explanation has been given for the elimination of the other LMO-exempt work permits from the definition of arranged employment.

Change in Adaptability Factors

As before, the total number of adaptability points will remain at 10.  Under the Proposed Regulations, adaptability points may be awarded as follows (up to the maximum of 10):

1. The maximum number of points (10, up from 5) will be awarded if the principal applicant has qualifying prior work experience in Canada (a minimum of 1 year at NOC 0, A, or B).
2. An accompanying spouse or common-law partner who has qualifying prior work experience in Canada will continue to be awarded 5 points.
3. Points for previous study in Canada by the principal applicant or accompanying spouse or common-law partner will remain at 5.  It must have been full-time study in a program of at least two years, earning the necessary credits to successfully complete two years of study.  For the purposes of adaptability, secondary school is accepted as an eligible program of study.
4. As before, 5 points will be awarded if the principal applicant has arranged employment.
5. As before, 5 points will be awarded if the principal applicant, spouse, or common-law partner has a relative in Canada (although the relative will now need to be 18 years of age or older).  In addition, adaptability points will not be awarded for spouses who are Canadian citizens or permanent residents living in Canada, since they can sponsor applicants through the Family Class.
6. If the accompanying spouse or common law partner has language ability in either official language at CLB 5 or higher, 5 points will be awarded.

Adaptability points for the accompanying spouse or common-law partner’s education (previously 3-5 points) will no longer be awarded under the Proposed Regulations.

Creation of the FSTC

The new FSTC will allow skilled tradespersons with experience in specific occupational areas to seek permanent residence.  The following NOC B occupational areas will be eligible under the FSTC:

1. Industrial, Electrical and Construction trades;
2. Maintenance and Equipment Operation Trades;
3. Supervisors and Technical Occupations in Natural Resources, Agriculture, and Related Production;
4. Processing, Manufacturing, and Utilities Supervisors and Central Control Operators;
5. Chefs;
6. Cooks;
7. Bakers; and
8. Butchers.

Applicants for the FSTC will be required to satisfy four minimum requirements:

1. The applicant must have a qualifying offer of employment (from up to two employers in Canada) having a collective duration of at least one year, or a certificate of qualification from a provincial or territorial Apprenticeship Authority.  Where an offer of employment is used, the employer would be required to obtain a positive LMO.
2. The applicant must possess language proficiency, as evidenced by a test from a designated language testing organization establishing that the applicant’s abilities meet the threshold set by the Minister in all four language abilities (speaking, reading, writing, and listening).  Initially, the threshold is expected to be set at CLB 5 for all four language abilities.
3. The applicant must possess at least twenty-four months of work experience (after qualification or certification in the country where the work was performed, if applicable) in the same skilled trade within the last five years.
4. The Applicant must possess qualifications that satisfy employment requirements as described in the NOC, except for certification and licensing requirements, which are difficult to obtain outside Canada.

As with the FSWC, the Proposed Regulations would also enable officers to provide a substituted evaluation if they believe that the applicant’s ability or inability to meet or not meet the minimum requirements of the class is not a sufficient indicator of whether he or she may become economically established in Canada.

Liberalization of the CEC

The Proposed Regulations would reduce the existing work experience requirement for temporary foreign workers under the CEC from the current requirement of twenty-four months of full-time employment (or equivalent) in Canada to twelve months of full-time employment (or equivalent) in Canada, within the preceding thirty-six months.  Only applicants with NOC 0, A, or B work experience would continue to qualify for the CEC.

The current CEC regulations allow applicants to compensate for a lower level in one language ability with a higher level in another, resulting in a process that CIC characterizes as complicated and confusing for both applicants and visa officers.  The Proposed Regulations will instead set a minimum language threshold in each of the four language abilities (speaking, reading, writing, and listening).  Although the Minister will publish the language threshold at a later date, it is expected to be set at CLB 7 for NOC 0 and A applicants and CLB 5 for NOC B applicants, the same thresholds currently applied under the existing regulations.