2. IMMIGRATION UPDATE 2013
Evelyn L. Ackah, Managing Lawyer
Robyn Smith, Associate Lawyer
October 10, 2013

3. Immigration Update
• International recruitment becoming more common
• Canadian economy requires more skilled workers
• HR the first to know about potential immigration needs
• How to work successfully/efficiently with external
immigration law providers
3

4. PART I
CANADIAN IMMIGRATION
4

5. Canadian Immigration Law
• Governed by web of statutes, regulations,
policies and programs
• Significant discretion of immigration officers
leads to inconsistencies
• Post 9-11 much tougher entry and increased
security concerns
• The new normal is “constant change”
• Employers must be proactive – not reactive
5

6. Canadian Work Permit Rules
All Foreign nationals need valid authorization to
work in Canada – you must ask:
a) Is a work permit required? (The answer is
always “yes” if the person is being recruited
to work in Canada)
b)If yes, is there an applicable work permit category
under the Immigration and Refugee Protection Act
(“IRPA”), a treaty (e.g. NAFTA, GATS), or a special
immigration program?
c) If not, a Service Canada (formerly HRSDC)
Labour Market Opinion (LMO) must first be
obtained
6

7. Immigration and Refugee Protection Act (IRPA)
• Work defined as: “an activity for which wages
are paid or commission is earned, or that is in
direct competition with the activities of
Canadian citizens or permanent residents in the
Canadian labour market”
• Under Canadian immigration law, foreign
nationals are prohibited from engaging in work
or assuming employment without first obtaining
a work permit (there are limited exceptions to
this rule)
7

8. Using NAFTA
• The preferred tool to facilitate cross-border
movement between Canada and the U.S.
• Used for temporary entry – not permanent
• Must be a U.S. or Mexican citizen
• Three main categories:
1) business visitors
2) professionals
3) intra-company transferees
8

9. NAFTA: Business Visitors
• Intended for short-term entry – meetings,
training, sales activity
• Should ensure employees always have
employer letter when crossing border
• Remuneration must be paid from home country
• Cannot be engaged in “work” activity
• Must ensure employee is prepped before
attending at port of entry
9

10. NAFTA: Professionals
• Renewable indefinitely (recently changed to up
to 3 year work permits)
• Must meet educational or experience criteria
• Must be exercising the skills of the profession
• Must have an offer or contract
• NAFTA lists 66+ professions including
Engineer, Geophysicists, Systems Analyst,
Scientific Technician – “Manager” or “Director”
are not eligible positions
10

11. NAFTA Intra-Company Transferees
• For employees at “Executive” or “Managerial”
level, or who have “Specialized Knowledge”
• Must have worked 12 consecutive months in
preceding 3 years for the foreign related entity
• Must prove proper corporate affiliation of entities
• Time caps: Up to 5 years for specialized
knowledge workers and 7 years for
managers/executives
• Non-NAFTA Intra-Company Transfer category
for those who are not American or Mexican
11

12. PART II
• Labour Market Opinions
• Recent Changes in the Law
12

13. The New TFW Regulations
• “New” Immigration regulations became effective
as of April 1, 2011
• Changes focus on “compliance”
• Strengthening protection for TFWs and limiting
the duration of temporary employment in
Canada
• Minimizing the potential for TFW exploitation
and implementing stricter employer monitoring
mechanisms
13

14. Labour Market Opinion Based Work
Permits
• To increase employer monitoring,
HRSDC/SC/CIC have increased data
collection, closer monitoring of TFW conditions,
capped work terms
• Priorities:
– Employer Information
– Genuineness
– Compliance
– Cumulative Duration
14

15. LMO Based Work Permits
Employer Information
•Database for history of each employer
(CIC/Service Canada/CBSA)
•Signed statement that employer will abide by
Program requirements
•Copy of business license/permit; proof of
legitimate existence as an active business
required for first-time LMO applications
15

16. LMO Based Work Permit
Genuineness
•
•
•
•
•
Reg. 200(5) – sets out criteria for examining the genuineness of a
job offer:
The employer must be actively engaged in the business in respect
of which the offer is made
The offer must be consistent with the reasonable employment
needs of the employer
The employer must be reasonably able to fulfill the terms of the
offer and
The past compliance of the employer, or any person who recruited
the foreign national for the employer, with the federal or provincial
laws that regulate employment, or the recruiting of employees, in
the province in which it is intended that the foreign national work
16

17. LMO Based Work Permits
Genuineness
• Increased documentary requirements assist in
determining employer genuineness
• One area affected is how positions are now
advertised:
– Depending on National Occupation Classification
Code (NOC), minimum 4 weeks posted on
Canada Job Bank and two additional advertising
methods – three job postings in total
– Particular wording regarding NOC descriptions
– Be careful with “Tailoring”
17

18. LMO Based Work Permits
Compliance
• Increased enforcement of regulations and
enhanced monitoring
• Employers must demonstrate past compliance
by proving they met substantially the same
terms and conditions of employment as set out
in previous LMO
18

19. LMO Based Work Permits
Compliance
• Reg. 200(1): During the 2 years prior to the
date the application was received, the employer
must have substantially complied with the
wages, working conditions, and occupation set
out in the original offer of employment for each
foreign national employed by the employer
• This is retroactive going back two years!
19

20. LMO Based Work Permits
Compliance
• Some employers may have to undergo
Employer Compliance Review (ECR)
• With every new LMO application, HRSDC-SC
has authority to review past compliance for
every TFW employed in the past 2 years
• If found not to have met compliance
requirements, must provide “reasonable
justifications”
20

21. LMO Based Work Permits
Compliance – Reasonable Justifications
• a change in federal or provincial law, or collective agreement
• a dramatic change in economic conditions that directly affected the
business, provided that the measures were not directed
disproportionately at foreign nationals
• an error in interpretation made in good faith (if the employer
subsequently provided compensation or made significant attempts
to correct the error)
• an unintentional accounting or administrative error (if the employer
subsequently provided compensation or made significant attempts
to correct the error) or circumstances similar to those set out
above.
21

22. LMO Based Work Permits
Compliance – “Bad Employer” List
• Public non-compliance list maintained by CIC:
• Posted on CIC website
• Includes names-addresses of employers found
non-compliant by either CIC or Service Canada
• Employer will be notified of non-compliance first
• Include the date on which the determination of
non-compliance was made
22

23. LMO Based Work Permits
Cumulative Duration – “Cap”
• Reg. 200(4)(f) – an officer shall refuse to issue a work
permit where the foreign national has accumulated one
or more periods of work totalling 4 years unless:
• A period of 48 months has elapsed since the date the TFW
accumulated 4 years of work
• The work would create or maintain significant social,
cultural or economic benefits or opportunities for Canadian
citizens or permanent residents, or
• The foreign national intends to perform work pursuant to an
international agreement
23

24. LMO Based Work Permits
Cap Exceptions
• TFWs in Managerial (NOC 0) and professional
(NOC A) occupations
• TFWs who have applied for PR and received a
positive assessment in accordance with:
• Provincial Nominee Program certificate if a provincial
nominee
• Positive selection decision under Federal Skilled
Worker Class
• Positive selection under Canadian Experience Class
24

25. LMO Based Work Permits
Cap Exceptions
• TFWs who are employed under International
agreements such as NAFTA or other agreements
• TFWs who are LMO exempt – including:
• Spouses and common law partners of
international grads in the Post-Grad Work Permit
program
• Entrepreneurs, Intra-company transferees,
researchers and academics
25

26. Labour Market Opinions
Advertising – Skilled positions NOC 0, A & B
•Posting on Canada Job Bank or conduct recruitment activities
consistent with industry – posting in three different venues
•If using a recruiter, be sure they are in compliance with Service
Alberta’s Employment Agency Licensing requirements under the Fair
Trading Act and the Employment Agency Business Licencing
Regulation
•Minimum 4 weeks for advertising within 3 months of LMO application
•Make sure advertising is consistent with LMO application
26

27. Labour Market Opinions
Description of duties
• Recommended attaching company job
description to ensure consistency
• Check the NOC job description to ensure no
inconsistencies – may want to list NOC code to
ensure Service Canada looks at same NOC
27

28. Labour Market Opinions
Educational Requirements
• Critical to ensure that the foreign workers meet
educational and experience requirements listed
on LMO and advertisements
• If willing to accept work experience in lieu of
education, this must be clearly specified and
noted on the LMO and in the advertisements
28

29. Labour Market Opinions
Work Experience Requirements
• Ensure that description of any specialized work
experience that is important for the position is
included
• Also include any occupational designations
such as CA, CMA, CGA, RN, P. Eng
• This information should mirror advertising
conducted
29

30. Labour Market Opinions
Wages & Benefits
• Generally must be equal to or higher than the
prevailing wage – www.workingincanada.gc.ca
(cannot offer wages below rates paid to
Canadians in the same occupation and region)
• Also must include holiday pay as a percentage
or number of days – confirm provincial
employment standards
• This information should mirror advertising
conducted
30

31. ALBERTA TRADES AND LMO
Applying through the Alberta Occupation-Specific Pilot:
•
If employers want to hire a journeyperson level carpenter or millwright, the worker
will require an approval letter from Alberta Apprenticeship and Industry Training
(AIT) for the Alberta Qualification Certificate Program before being eligible to
participate in the pilot
•
TFWs coming to Alberta who are experienced tradespeople can obtain a
Qualification Certificate – Work Experience Application Guide for Temporary Foreign
Workers and the application form. Additional information about the certification
process is available on the Alberta’s Trade Certification Process information sheet
•
Applying through the Labour Market Opinion (LMO) process: Employers who
don’t require a journeyperson level carpenter or millwright are not required to
participate in the pilot but may instead hire a worker under the LMO process
31

32. Bridging Open Work Permits
• Allows for work permit extensions for those who
have been approved for PR by way of CEC,
AINP and Federal Skilled Worker (the PR
applications under the Economic Class), so
they can maintain their valid work permit status
while the PR is in process
• The Bridging Open Work Permit is not available
to those seeking PR under the spousal or
common law class or under the low-skilled
category
32

33. Implied Status and Related Issues
What does implied status mean?
If your work permit expires after you have submitted your application for an extension of
your authorization to remain in Canada, you will be considered in status as a
temporary resident (visitor) until a decision is made on the application. This is
known as implied status. YOU CANNOT LEAVE CANADA WHILE UNDER
IMPLIED STATUS!
What can be impacted by it:
SIN cards – As soon as a decision has been rendered by CIC authorizing the employee to continue to work in
Canada, the employer must verify the new immigration document and the expiry date. The employer must also
inform the employee to apply with his or her new immigration document to Service Canada for the SIN record to
be updated with the new expiry date
Health coverage – A designation by CIC of “implied” status does not qualify you to maintain your AHCIP
coverage. A new Canada entry document is required for your coverage to continue. While waiting in Alberta for
a new work*, study* or visitor* permit, or confirmation of permanent residency, you may be eligible for a one
time only temporary extension of health care insurance coverage for 3 months.
Drivers license – If a TFW has an Alberta Drivers Licence that is about to expire (note: the expiry date is the
driver’s date of birth), they must go to an Alberta Registries office and present a copy of the Citizenship and
Immigration document that they have submitted to either extend their Work Permit or to obtain permanent
Residency. The Alberta Registries staff will then issue the TFW a new drivers licence that expires on their next
birthday. The TFW should do this at least one month in advance of the expiry date
33

34. Federal-Provincial-Territorial
Agreements
• Each province and territory has signed as
immigration agreement with CIC
• Provincial Nominee agreements: BC, AB, SK,
MB, ON, NB, PEI, NFLD, NWT, YK
• Increase admission of PNs to 42-45,000
between 2013 – 2014
• Focus on regional needs, LMO-exempt
categories
34

35. AINP to Permanent Residence
Engineering Stream
• Must be living in the province and intend to live
permanently in Alberta
• Must provide evidence of related educationtraining as an engineer, designer or drafter
• Must be currently working or have worked within
the last two years in Alberta for recognized,
reputable and established Alberta Engineering,
Procurement and Construction company and/or a
company that is member of the Consulting
Engineers of Alberta
35

36. AINP to Permanent Residence
Engineering Stream
• Specific NOC codes are listed on the AINP
website that advise on whether a letter of no
objection is required from APEGA
• The Employee is self sponsoring in this stream
• The challenge may be if the employee is
qualified, but they may not be working exactly in
an engineering capacity – perhaps
management? Review of position description is
very important in this instance
36

37. AINP to Permanent Residence
Employer Driven Stream
• For Alberta employers who want to retain
foreign workers on a permanent, full-time basis
• Categories:
– Skilled Worker Category
– International Graduate Category
– Semi-Skilled Category
Bridging Open Work Permits now available for
those waiting to complete PR process
37

38. Canadian Experience Class - PR
The Canadian Experience Class (“CEC”) is a PR category for individuals with
experience in Canada. It was developed for TFWs or graduates with Canadian
work experience who:
•are familiar with Canadian society and Canada’s job market
•have knowledge of English or French and
•have additional abilities that assist them in making a successful transition from
temporary to PR in Canada.
The CEC is prescribed as a class of persons who may become PR on the basis of their
Canadian experience and who:
•intend to reside in a province or territory other than Quebec;
•maintained temporary resident status during their qualifying period of work experience
as well as during any period of full-time study or training in Canada.
38

39. Canadian Experience Class – PR
There are two streams available under the CEC:
1. Temporary Foreign Worker
•Under this stream, an applicant must have acquired, in Canada, within the 36 months before the date the
application is made, at least 24 months of full-time work experience, or the equivalent in part-time work experience,
in a NOC type 0, A or B occupation (i.e., managerial, professional, or skilled and technical)
2. Post-Graduation Stream
An applicant must have:
•completed a required program of study in Canada and obtained a Canadian educational credential (e.g., degree,
diploma, or certificate)
•been enrolled full-time in this program of study or training for two years
•acquired, in Canada, at least 12 months of full-time work experience, or the equivalent in part-time work experience
in a NOC type 0, or level A or B occupation, within the 24 months before the date the application is made
•Under both streams applicants must demonstrate that they have met the minimum language requirements and
provide the results of their English or French language test from a designated language testing agency
39

40. Labour Market Opinion Process Flowchart
When the Candidate
arrives in Canada, NOVA
sends us a copy of their
WP and Ackah law does a
Reporting Letter to NOVA
and we keep track of the
WP expiry date
As soon as we receive
the fax confirming a
Positive LMO, we send
the draft Work Permit
application to NOVA for
review and finalization,
and then on toe the
Candidate so they can
either submit it to the
Consulate in their home
country OR book flights
and travel to a Port of
Entry
In anticipation of a Positive
LMO being received in
about 8-12 weeks, Ackah
Law drafts a Work Permit
application which may be a
Port of Entry OR Consular
application, depending on
which country the
Candidate is coming from
Ackah Law receives an email from
NOVA saying that NOVA wishes to
obtain an LMO for a particular
candidate and NOVA indicates the
appropriate NOC Code, Job Title and
Timeline for when they hope the
candidate can start work in Canada
Ackah Law doublechecks that the NOC
Code selected by
NOVA is appropriate,
and then asks NOVA
to send over its Job
Ads to be checked
against the Job
Description
Because NOVA has usually already
posted the Job Ads by the time
Ackah becomes aware of the need
for an LMO, Ackah will advise if the
Job Ads need any revisions in order
to comply with Service Canada’s
Recruitment and Advertising
requirements. (the NOVA Ads
usually do not need revision)
Ackah then drafts the entire LMO package
which includes:
1. Index of Documents
When 4 full weeks of
advertising are
complete, we submit
the LMO application
to Service Canada
(usually the
Edmonton Office)
2. Our submission letter to Service Canada
3. The EMP5517, LMO Application Form
with Schedule A Appointment of
Representative form
4. NOVA’s employer support letter
5.Offer of Employment – NOVA-Candidate
6. Proof of Recruitment Efforts
7. Candidates CV, Position Description and
University Degrees/Qualifications
8. Copy of Candidate’s Passport Photo/Bio
Page
9. Corporate Info about NOVA and the
$275 LMO Processing Fee sheet
Within a week
of receiving it
Service Canada
faxes Ackah
Law a
“Confirmation
of Receipt”
Ackah law then send the draft Index, Submission
Letter, Employer Support Letter, EMP 5517 and
Appointment of Representative, NOVA’s
Employer Support letter for thorough review
and finalization.
NOVA then sends it back to Ackah Law and we
wait for 4 full weeks of advertising to complete
40

41. Current Processing Times
For Work Permits
If processed within Canada
•WP with new employer – 54 days (paper application)
•41 days (online application)
•CIC is currently processing WP applications that were submitted in August 2013
For LMOs
•On average across the country is 8 weeks because they process files “virtually” – (for example:
Service Canada office in one part of Canada can process Alberta LMOs to share workload if
necessary)
•Call Service Canada’s Employer Contact Centre at 1-800-367-5693 for current processing times
For Permanent Residency
•CEC – average of 18 months
•Provincial Nominees – (Alberta Immigrant Nominee Program) – anywhere from 12 months to 44
months, depending on where the Canadian visa office is located
See:
http://www.cic.gc.ca/english/information/times/perm/provincial.asp
•Federal Skilled Worker – anywhere from 12 months to 28 months, depending on where the
Canadian visa office is located
See:
http://www.cic.gc.ca/english/information/times/perm/skilled-fed.asp
41

42. PART III
TIPS TO ENSURE SUCCESS
42

43. Practical Pointers
Before Submitting Immigration Application:
1. Be proactive and consider immigration issues early
2. Properly assess person and purpose of entry and
then develop appropriate immigration strategy and
supporting documents (legal counsel can assist)
3. Consider whether mail-in application more prudent
versus Port of Entry application
4. Choose best Port of Entry (legal counsel can
assist)
43

44. Practical Pointers
5.
Watch out for:
– ineligibility due to criminal convictions or prior
refusals
– Ineligibility due to medical inadmissibility
– entry visa requirements
– immigration medical requirements
– accompanying dependants
– changes in laws, policies or procedures
44

45. Practical Pointers
At the Border
1. Educate the person crossing the border
2. Know the purpose of entry and your itinerary
3. Always be courteous with immigration officers –
they have a lot of power and
discretion
4. Always be honest – this avoids potential
misrepresentations
45

46. Practical Pointers
5.
Always travel with proper supporting
documentation and package (this includes
Business Visitors)
6.
Try to travel during regular business hours.
Then help can be contacted if there are
problems
7.
Never insist on entry if problems occur. May
be allowed to withdraw the application,
this is better than a refusal
46

47. Summary
• Employers need to comply with immigration laws
when recruiting foreign nationals
• Immigration issues must be carefully reviewed and
proper application materials prepared to ensure
initial success – much harder to fix a refusal
• BE PROACTIVE: obtain proper advice first
• Latest developments focus on improving processes
and decreasing timelines
• Properly utilized, immigration solutions may be
used to address labour needs and as part of overall
human resources strategy
47

48. Why is immigration planningcompliance important
•
•
•
•
•
•
Denial of service (work permits/LMOs)
Loss of valuable employees (4 year cap)
Damage to image (“bad employer” list)
Costly-time consuming audits
Exclusion-removals for foreign nationals
Fines for employers (unauthorized work)
48

49. Focus on Compliance
• Ensure all work is “authorized” and documented
• Know which of your employees are TFWs –
(Tip: Internal SIN audits every 4 months)
• Ensure LMO and WP conditions are met at all
times (especially wage and geographical
conditions)
• Seek change of conditions where necessary
in advance (i.e. geographical change, change
in employer name, job title)
49

50. Focus on Compliance
• Employers must establish a culture of
immigration compliance by:
– Developing, implementing and enforcing immigration
compliance policies
– Be clear who has ownership over immigration
compliance (ideally two or three people)
– Clearly communicate immigration compliance
policies and expectations to all employees; and
– Maintain proper records and conduct frequent
immigration audits to ensure compliance across the
corporate entity
50

51. Focus on Compliance
• Obtain extensions for work permits well in
advance – we recommend at least 6 months in
advance
• Ensure compliance with special rules re:
external recruiters
• Keep up to date and accurate records
• Be aware of how provincial legislation may
relate to TFWs (i.e. OH&S, Employment
Standards, etc.
51

52. Create an Immigration Program
• Comprehensive Immigration Policy and
Procedures
• Be clear who has ownership over immigration
compliance (ideally one person)
• Accurate and up to date record keeping
• In house training for managers, recruitment
personnel, HR and TFWs
• Key personnel are up to date on regulatory and
policy changes
52

53. What records should be kept?
• Wage and benefit information
• Each TFW’s name, address, telephone number, job title
and the location where they do most of their work
• Expenses incurred (directly or indirectly) during a
recruiting process (including proof of who was paid)
• Copy of LMO and WP
• All contracts-agreements entered into with foreign
workers and external recruiters – especially with new
legislation
• Record keeping must meet employment standards
minimum requirements
53

54. Proposed New Compliance Rules
• There are anticipated legislative changes
coming that will affect employers.
• If passed, Federal officials will now be allowed
to review foreign worker applications and files
up to 6 years after the date of their employment
termination – we recommend employers keep
these records for a full 7 years.
54

55. PART IV
CASE STUDIES
55

56. Case Studies
An application for a work permit into Canada is refused as it turns out
the employee has a criminal conviction:
•May be eligible for Deemed Rehabilitation if only one conviction that took
place, and more than five or ten years has passed since the conviction – this
could allow entry to Canada right at the port of entry
•If not eligible because there is more than one conviction and it is recent, you
will need to apply for a Temporary Resident Permit at a Canadian Consulate
and you may also want to apply for a permanent Criminal Rehabilitation at a
Canadian Consulate
56

57. Case Studies
Applied for work permit too late and it has expired – what do you do?
Restoration of Status - TFW may seek restoration within 90 days
after status as a worker has been lost, because TFW failed to comply
with one or more of the following conditions:
•Remained in Canada longer than the period authorized for their stay
(but not longer than 90 days)
•Changed employers or type of work before obtaining a new work
permit
TFW may still be eligible for restoration if they continue to meet the
initial requirements for their stay and have not failed to comply with
other conditions imposed
57

58. Case Studies
Common law spouse or same-sex spouse
•In Canada we recognized common law/same –
sex spouses as dependents that are entitled to a
spousal open work permit or visitor record – not in
the US
•However to prove common-law, will need a
statutory declaration and supporting documents
like joint bank accounts, benefits statements,
mortgage papers showing joint title
58

59. THANK YOU!
59

60. QUESTIONS?
Ackah Business Immigration Law
(403) 452-9515
evelyn@ackahlaw.com