Language Requirements for Immigration (IR-11)

During the time that I have been writing this blog the most frequently asked question that readers have asked me is whether their IELTS band scores are sufficient for certain immigration programs.  Some people have even offered to book initial consultations with me just so that I would review their IELTS scores.  This has always been somewhat surprising to me given that the Citizenship and Immigration Canada (“CIC”) website publishes each of its program’s respective language requirements in a clear and concise manner.

Indeed, it is not just members of the general public that seem to be confused.  As shown in the exchange below, which I obtained through an Access to Information Act request, some immigration lawyers are unclear of the requirements.  (Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.)

Question – May 21, 2013

Dear Sir/ Madam,

I have been referred to your office, by Karen Flynn, of NHQ-Immigration in Ottawa, her phone number is _______.

I practice immigration law in Toronto, and I have the following question, regarding the Federal Skilled Worker Class, in light of the recent changes, in effect, as of May 4, 2013:

  • the IETLS benchmark is CLB 7, i.e. 6 points, for each ability. If the results of a foreign national are, for example, in 1, or 2, or 3 abilities in the CLB 8 or higher, but 1 ability, or 2, or 3, are at CLB 7level, can I give 5 or more points per ability, for the CLB 8, or higher, and 4 points, for the CLB 7 result, or once one of the results is in the CLB 7 area, all abilities can only receive 6 points, i.e. 16 points.

Basically, can I give points for each ability depending on where the ability is in the CLB range, e.g. 2 abilities are 6.0, and 2 abilities are 6.5, is the assessment 18 points or 16 points?

I look forward to your response.

Best regards,

Answer – May 22, 2013

Thank you for your inquiry.

As of May 4, 2013, all applicants under the Federal Skilled Worker Class must demonstrate that they meet the minimum language proficiency threshold of CLB 7 in all four language abilities.

As outlined in section 11.2 of the OP 6C operational manual, officers will award points for first official language proficiency based on the applicant’s demonstrated CLB level per language ability. For example, an applicant who had obtained CLB 7 in two language abilities and CLB 8 in the other two language abilities would be awarded a total of 18 points for first official language proficiency (4 points for each language ability in which their proficiency meets the minimum threshold+ 5 points for each language ability in which their proficiency exceeds the minimum threshold by one benchmark level).

There are three aspects of CIC’s response to the question above that I wish to elaborate on.  The first is where individuals can locate information about a program’s language requirements on the CIC website.  The second is the distinction between the Canadian Language Benchmark (“CLB”) and the IELTS bandscores, and how to calculate equivalence.  Finally, I will also address whether there are language requirements to becoming a temporary foreign worker.

The Languages Manual

The CIC website publishes all of its publicly available program manuals on its website here.  While there are some private manuals that can only be accessed through Access to Information Act requests, they probably only significantly impact to 5 – 10% of people interact with CIC. 

Operational bulletins and manuals - language

As shown in the image above, in order to simply its language requirements, CIC has consolidated its language requirements into a single, online manual on its website.  The languages manual is divided into the following sections:

Except for the language requirements for the Temporary Foreign Worker Program (“TFWP”), which is discussed below, the manuals above comprehensively describe most of the language requirements for CIC’s various programs.

CLB vs. IELTS

It is important that prospective applicants distinguish between their IELTS scores and the CLB.  This can be especially confusing to people considering that the scoring system looks similar.

The CLB is the national standard used in Canada for describing, measuring, and recognizing the English language proficiency of adult immigrants and prospective immigrants for living and working in Canada. It classifies English language ability according to 13 language benchmarks.

The IELTS are one of the language tests that the Respondent has designated as being an acceptable test to asses an applicant’s CLB.  There are nine IELTS band levels, and CIC has produced numerous charts on its website showing equivalencies of the 9 IELTS bands to the 13 CLB levels.

Language test equivalency charts

The distinction is important.  I occasionally meet individuals who did not apply for the Canadian Experience Class (“CEC”) because they were told that they needed a 5.0 in all language abilities.  While this is technically true, the “5.0 requirement” refers to CLB, not IELTS.  As shown above, an IELTS Listening Score of 4.0 is equal to a CLB score of 5.0.  Hence, these individuals erred in assuming that they were not eligible.  As the CEC has application caps, delaying applying to unnecessarily re-write the IELTS can have significant detrimental consequences.

The Temporary Foreign Worker Program

Many people mistakenly assume that the TFWP does not have language requirements.  Work Permit applicants accordingly often question CIC’s authority to request proof of language ability during the Work Permit application process, which is becoming increasingly common.

Section 8.3 of the CIC’s Temporary Foreign Worker Manual states:

 R 200 (3) (a) states that:

“An officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.”

Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job.

Additionally, the officer can consider:

  • the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
  • terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”

An officer should NOT consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance. Such a consideration is beyond the scope of the current legislation.

The same principles respecting official language capability and the applicant’s ability to perform the work sought apply irrespective of the skill level of the intended occupation. There is no separate standard or criteria for applicants at NOC skill levels C or D.

An applicant’s language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMO requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that h/she would be able to perform the work sought.

 

 

Restoration of Status

If a visitor, worker, or student loses their status in Canada, then they may apply to restore their status.  Such applications are referred to as “restoration applications.”  Section 182 of the Immigration and Refugee Protection Regulations provides that:

182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual”) further provides that if an applicant applies to extend their temporary resident status after their temporary resident status expires, but within the 90-day restoration period, then the Case Processing Centre – Vegreville will inform them that they must also apply for restoration of status.  The applicant will be given 90 days from the date of notification to submit their restoration application.  This is an important point to note, as many people mistakenly assume that the 90-day restoration period only starts when a person’s work permit, visitor record, or study permit expires.  Rather, it is when their temporary resident status expires, which includes implied status.

The Manual also provides that restoration cannot be granted at Canadian ports of entry.

The 90 Day Deadline

Applicants must submit restoration applications within the specified period.  The failure to do so will result in an application being refused.  Indeed, if an application for restoration is submitted outside the 90-day period imposed by law, then the Courts have held that Citizenship and Immigration Canada must refuse the application (Novak v. Canada, 2004 and  Avi Adroh v. Canada, 2012).

As well, unlike with many areas of immigration law, the 90-day period starts the day an applicant’s temporary resident status expires.  It does not begin when the applicant receives CIC’s decision (Nzegwu v. Canada, 2010).  As such, even if there is a 3-4 month delay by Citizenship and Immigration Canada in informing a foreign national about a loss of temporary resident status, the applicant cannot submit a restoration applicaiton because he or she is statute barred from doing so.

Working During Implied Status

Another myth that exists is that foreign nationals can work in Canada during the restoration period.  This is not true. Regulation 182 provides that a foreign national can restore temporary resident status if the foreign national did not comply with a condition imposed under regulations 185(a), 185(b)(i) to (iii), or paragraph 185(c) of the Immigration and Refugee Protection Regulations. These sections state that:

185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:
(a) the period authorized for their stay;

(b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of work,
(ii) the employer,
(iii) the location of the work,

(c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of studies or course,
(ii) the educational institution,
(iii) the location of the studies, and
(iv) the times and periods of the studies;

Working without authorization is prohibited by regulation 183(1)(b) of the Regulations.  As such, applicants cannot work during the restoration period.  Indeed, if either the Canada Border Services Agency or Citizenship and Immigration Canada discovers the unauthorized work then the applicant will be issued an inadmissibility report and/or denied a work permit.

Removal

Generally speaking, it is rare that the Canada Border Services Agency will issue a removal order against someone who has applied for restoration of status.  Where they have done so, a quick reading of the jurisprudence indicates that the Federal Court has sided with applicants in determining that this was unreasonable.

In Yu v. Canada, 2005 FC 1213, for example, an individual applied to restore his study permit one day after his status expired.  During the period that Citizenship and Immigration Canada was processing his study permit extension application, the Canada Border Services Agency issued a removal order against the applicant.  The removal order was made on the basis that the applicant had stayed in Canada beyond the period authorized by his stay.   Justice Simpson, however, found this unreasonable, stating that:

It cannot be said that a temporary resident who has applied for restoration of his permit in a timely manner, as he is entitled to do so under the Regulations, has failed to comply with or breached the IRPA.

However, the Federal Court has ruled that a Minister’s delegate has a duty to consider eligibility to apply for restoration and/or that a restoration has been submitted when determining whether to issue an inadmissibility report. (Sui v. Canada, 2006)

The Citizenship Test

All applicants for Canadian citizenship between 18 and 54 years of age are required to take the Citizenship Test.  (As previously noted on this blog, on February 6, 2014, the Government of Canada introduced the The Strengthening Canadian Citizenship Act, which will soon change the age requirement to all applicants aged 14-64.  As will be shown in the statistics below, this will likely result in a decrease in the Citizenship Test pass rate.)

The Citizenship Test is generally the final step before the citizenship ceremony.  Considering that the current processing time for citizenship currently exceeds 24 months, and is often much longer, most applicants greet CIC’s request of them to attend a citizenship exam with relief.  Applicants should remember to study though, as failing the Citizenship Test is the most common reason for citizenship application refusals. 

Processing Times  Grant of CitizenshipDiscover Canada

The Citizenship Test assess an applicant’s knowledge of Canada and the responsibilities and privileges of Canadian citizenship.   All questions are based on Citizenship and Immigration Canada’s (“CIC”) Discover Canada, which can be read on CIC’s website here. Discover Canada’s Table of Contents shows that it consists of the following chapters:

Retesting Applicants who Fail the Citizenship Test

Failing the Citizenship Test does not result in the automatic refusal of a citizenship application.  Rather, applicants who fail the Citizenship Test are referred to a hearing with a Citizenship Judge, a process which can take years.  Accordingly, from March 2010 to February 2011, CIC offered re-testing to citizenship applicants who failed the citizenship test.  Retesting was originally a temporary measure aimed at mitigating the impact of the new citizenship test introduced following the introduction of Discover Canada.  (As I previously wrote in this blog, the Conservative Party of Canada since taking office has introduced several changes making the Citizenship Test more difficult.)

In order to reduce increasing citizenship application processing times, CIC has re-introduced the ability for failed citizenship applicants to be retested.  For most cases, if an applicant fails the citizenship test, CIC will provide the applicant with a copy of their test score result, and information regarding re-testing.  In brief, an applicant will either have the option of retaking the test, or withdrawing their application.  The re-test will be scheduled approximately 4-8 weeks after the first test.

Applicants will only have one opportunity to rewrite the test. If they do not appear for that appointment, and CIC does not hear from them regarding the non-appearance, then the application will be deemed abandoned, and closed.

Applicants who fail the test the second time will be scheduled for an oral interview with a citizenship judge.  Again, wait times can take several years.

Citizenship Stats and Figures

I recently obtained a copy of the Citizenship Management Quarterly Report (Second Quarter of Fiscal Year 2012-2013).  Some of its summaries include that (paraphrased) (my comments are in red):

  • The average overall test pass rate in Quarter 1 (Fiscal Year 2012-13) and Quarter 2 (Fiscal Year 2012-13) was 72.6%, a decrease from the 83% average in Fiscal Year 2011-12.  The decrease in pass rate was considered attributable to the introduction of new questions on March 28, 2012, and on July 23, 2012.  The report makes it clear that the authors consider this pass rate to be unacceptably low, and it appears the test questions were re-written to promote a higher pass rate. 
  • Male pass rates are consistently higher than female pass rates, on average 4% higher.
  • The difference in pass rates between official languages is negligible.
  • The Province of Manitoba consistently has the lowest test pass rates of all Provinces and Territories, averaging at 77.2%.
  • The age group 35-44 consistently has the highest test pass rate, averaging 2% higher than the national average.  On average, the oldest age group, 45-54 consistently has the lowest pass rate, averaging 2% lower than the national average.  (Presumably, once applicants aged 55-64 are required to write the test their pass rate will be even lower.) 
  •  Sri Lanka and Vietnam are the source countries with the lowest test pass rates, respectively averaging 70% and 67%.  South Korea and China are the source countries with the highest test pass rates, respectively averaging 90% and 88%.
  • Applicants with the shorter length of permanent residency times have the highest test pass rates.  Applicants with 11 to 20 years of permanent residency consistently have lower test pass rates.  If there is an inverse relationship between Citizenship Test pass rates and establishment in Canada, then one has to at least wonder whether the Citizenship Test is achieving its purposes. 
  • There is a huge performance gap between immigration groups, with the economic class averaging the highest pass rate, and the protected persons class averaging the lowest.  Applicants with an educational level of secondary or less represent about 40% of citizenship applicants.

Please e-mail me if you would like a copy of the full Citizenship Management Quarterly Report.

Arguing Incompetence of Counsel in an Appeal

Many lawyers when they meet with clients often find themselves reviewing rejected applications and/or hearings where it is obvious that an individual’s previous representative was incompetent.  The examples of incompetence range from missed deadlines to not understanding the law.  Some specific scenarios that clients have told me about include:

  • former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent;
  • an immigration consultant not knowing the difference between a “conviction” and a “dismissal”;
  • an immigration consultant that the “Prevailing Wage = the wage paid to Canadians at the employer’s company”; and
  • a lawyer filing late because “deadlines are policy, not statute.”

The previous representative’s incompetence may serve as a ground for relief in a judicial review.  I have made such arguments in Federal Court before.  Cases based on incompetence and/or negligence of previous counsel are exceptionally difficult cases.  The Federal Court on March 7, 2014, announced a change of Procedural Protocol which will only make these cases more challenging.   

The Law on Incompetence of Counsel

As the Supreme Court of Canada stated in R v. GDB, 2000 SCC 22, for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence.

The Federal Court has closely followed the above two requirements when determining whether an alleged incompetence is a ground for review.  In the frequently cited case of Memari v Canada (Minister of Citizenship and Immigration), 2010 FC 1196, the Court stated that:

…the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.

In the often cited case of Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 FC 51, the Federal Court explained that there must be sufficient evidence to establish the “exact dimensions of the problem.”  Where the incompetence or negligence of an applicant’s representative is sufficiently specific and clearly supported by the evidence, such negligence or incompetence is inherently prejudicial to an applicant.  For example, in Kim v. Canada, 2012 FC 687, the Federal Court held that where an officer specifically refers to the lack of evidence, and where the submissions by a consultant are limited, then the failure to submit evidence causes a prejudice to the Applicants amounting to a miscarriage of justice.

Over time, as it began to become apparent that many allegations of previous counsel’s incompetence/negligence may have been factually inaccurate the Federal Court began to develop jurisprudence that current counsel could only argue incompetence/negligence of previous counsel/representative if there was evidence that either a complaint had been filed with the previous counsel’s/representative’s licensing body, or that the current counsel notified the previous counsel/representative of an intention to make an incompetence argument.  The March 7, 2014, Procedural Protocol affirms this jurisprudence, and makes it mandatory.

March 7, 2014 Procedural Protocol

The March 7, 2014, Procedural Protocol describes the procedure that counsel must follow where an applicant alleges professional incompetence, negligence, or other conduct against an applicant’s former legal counsel, or other authorized representative, which includes consultants, within the context of an application for leave and judicial review.

To paraphrase the Procedural Protocol (which I have embedded below), the procedure is:

  1. Prior to pleading incompetence, negligence or other conduct by the former counsel/representative as a grounds for relief, current counsel must satisfy him/herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation. In addition, current counsel must notify the former counsel/representative in writing with sufficient details of the allegations and advise that the matter will be pled in an application described above. The written notice must advise the former counsel/representative that they have seven days from receipt of the notice to respond, and include a copy of the Procedural Protocol.  In cases where privilege may be applicable, current counsel must provide the former counsel/representative with a signed authorization from the applicant releasing any privilege attached to the former representation.
  2. Current counsel should, unless there is urgency, wait for a written response from the former counsel/representative before filing and serving the application record. If the former counsel/representative intends to respond he or she must do so, in writing to current counsel, within seven days of receipt of the notice from current counsel.
  3. If after reviewing the response of the former counsel/representative, current counsel believes that there may be merit to the allegations, current counsel may file the application or appeal record. Any perfected application which raises allegations against the former counsel/representative must be served on the former counsel/representative and proof of service be provided to the Court.
  4.  Where  it becomes apparent that current counsel’s pursuit of this investigation may delay the perfection of the application record or appeal record beyond the timelines provided for by the Rules, then current counsel may apply by motion for an extension of time to perfect the record.
  5. If the former counsel or authorized representative wishes to respond to the allegations made in the record, he or she may do so in writing by sending a written response to current counsel and to counsel for the government within ten days of service of the application or appeal record or such further time as the Federal Court may direct.
  6. Current counsel who wishes to respond to the communication received from the former counsel/representative must file a motion for an extension of time and for leave to file further written submissions with respect to the new material received.
  7. If no response from the former counse /representative is received within ten days of service, and no extension of time has been granted, current counsel must advise the Court and the lawyers for the government that no further information from the former counsel/representative is being submitted and the Court shall base its decision without any further notification to the former counsel/representative.

While the Procedural Protocol adds several new mandatory steps to Applications for Leave to Commence Judicial Review involving allegations of incompetence/negligence, it also removes uncertainty involving such applications.  As well, if the Procedural Protocol results in the Federal Court removing the previously developing requirement that current counsel file a complaint with the previous counsel’s/representative’s licensing body, then there may actually be less steps, and time consumed, in these applications.

Implied Status – What It is, and What Changed Recently

(The following is a reproduction of an article of mine which appeared in The Canadian Immigrant.)

Implied status is perhaps one of the most misunderstood concepts of Canada’s immigration system.  Many mistakenly question its legality.  Others fail to appreciate its unique requirements, and abruptly find themselves without status.   Recent procedural changes and court decisions in Canada have only added to the confusion.

Implied Status

Regulations 183(5), 186(u), and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) provide the legal basis for implied status.  In brief, if a foreign worker, international student, or visitor files an application to extend his (or her) status in Canada, then he may remain in Canada on the terms of his original status until Citizenship and Immigration Canada (“CIC”) makes a decision on his extension application.

Accordingly, a foreign worker can continue to work, an international student can continue to study, and a visitor can continue to reside in Canada during CIC’s processing of the extension application.  Considering that as of writing visitor, worker, and student extension applications took CIC 75, 60, and 42 days respectively to process, the extra time that implied status can allow an individual to carry on with his life in Canada can be significant.

In order to take advantage of implied status, the IRPR requires that an applicant file the extension application before his current immigration document expires.  Even submitting an extension application one day too late will mean that a foreign national cannot benefit from implied status.  The consequences of this are often quite serious.

As well, an applicant will lose the benefits of implied status if he leaves Canada while CIC processes his extension application.

Some Recent Developments

While the above may be common knowledge to many readers (and judging from some of the e-mails that I receive in response to my articles in The Canadian Immigrant, many of you are quite well versed in Canadian immigration law), there were recently some significant procedural and court decisions which have received little attention.

The procedural change is that CIC has announced that Inside-Canada Spousal Sponsorship applications can no longer be sent to CPC-Vegreville, but instead must be sent to CPC-Mississauga.  This led many people, including agents at the CIC Call Center, to mistakenly believe that applicants could no longer benefit from implied status during the processing of their Inside-Canada Spousal Sponsorship.

This is not the case.  Work permit extension applications can continue to be included in Inside-Canada Spousal Sponsorship applications, where they will be processed to conclusion.  The result is that Inside-Canada Spousal Sponsorship applicants can benefit from implied status during the processing of their permanent resident applications.

The federal court decision pertains to CIC’s policy of returning incomplete applications without putting them into processing, and in effect treating the incomplete application as if they never existed.  In the implied status context, CIC’s habit of doing so meant that people who applied to extend their status prior to their immigration documents expiring were deemed to have never submitted applications.  They thus never had implied status and remain, worked, and/or studied in Canada without authorization.  Due to processing delays, by the time CIC returned the incomplete application, many were out of status for months.

Justice Roy in Campana Campana v. Canada (Citizenship and Immigration Canada), however, found that this practice was contrary to the law, and that nothing in the IRPR provides that an incomplete application is a non-existent application.

It remains to be seen whether CIC will amend its policies or whether the Government of Canada will simply amend the IRPR.  However, for the time breathing, applicants can breathe a little easier

Conclusion

As the above should hopefully indicate, implied status is a very complicated area of Canadian immigration law.  It is constantly evolving.  However, it is perfectly legal, is not an abuse, and it is unbelievably important that it be done right.

Questions & Answers – Student Work Experience and CEC (IR-10)

The Canadian Experience Class (“CEC”) allows individuals with one-year skilled work experience in Canada to acquire permanent residency.  In November 2013, the Government of Canada through Ministerial Instructions introduced significant limitations to the program.  We sent a newsletter to our subscribers outlining the changes to the CEC, and  I have reproduced on my blog a copy of that newsletter article.  As well, in December 2013 The Canadian Immigrant Magazine published an article of mine in which I outlined alternate programs for people who became ineligible to apply to the CEC.

In a previous blog post, I also reproduced an Access to Information Act result in which Citizenship and Immigration Canada confirmed to an immigration representative that work experience for a foreign employer counts towards the CEC’s work experience requirement.

In today’s post I will be reproducing a similar Q&A between an immigration representative and Citizenship and Immigration Canada regarding whether work experience obtained during full-time studies counts towards the CEC’s work experience requirement.  I will also be reproducing part of Citizenship and Immigration Canada’s Overseas Processing Manual 25A – Canadian Experience Class (“OP25A”), which discusses the issue.

Full-Time Study, Summer Breaks, and the Canadian Experience Class

Section 87.1(3)(a) of the Immigration and Refugee Protection Regulations  provides that:

any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience [for the CEC]

It is clear that work experience obtained during full-time study will not count towards the CEC work experience requirement.  It is therefore apparent that work obtained on an off-campus work permit or a co-op work permit would not count towards the CEC.  However, what about work experience gained when a person holds both a Post-Graduate Work Permit and a Study Permit?  Or what about work experience obtained during summer break?  Do either of those count towards the CEC requirement?

(Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.)

Question – May 14, 2013

Dear Sir/Madame,

I have had several inquiries from students who have worked full-time on post-grad work permits (obtained after they obtained their Bachelor degrees) and have at the same time gone back to school to complete their Masters. Can the experience they’ve gained under their post-grad work permits be used for their CEC application if they were completing a full-time Masters program at the same time when they gained the work experience? Please note that the experience was not gained based on an off-campus work permit.

Thank you for your time and assistance in this matter. !look forward to hearing from you soon.

Sincerely,

Answer – May 16, 2013

Pursuant to paragraph 87.1(3)(a) of the Immigration and Refugee Protection Regulations, any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience.

As such, work experience obtained on a post-graduate work permit while the individual is engaged in full-time study will not count as a period of qualifying work experience under the Canadian Experience Class

Follow Up Question- May 21, 2013

Thank you very much for your reply. During the summer period when she was on holidays, the individual was not engaged in full-time study. Would we be able to count this as work experience under the post-graduate work permit?

Follow Up Answer – May 22, 2013

When assessing whether an applicant under the CEC has met the work experience requirement, officers will generally assume that applicants have two weeks of leave within a given 52-week period in which they were engaged in qualifying full-time (or the equivalent in part-time) work. Work experience obtained during a summer holiday break while engaged in full-time study during the normal academic year would not be counted as a period of qualifying work experience under the CEC.

January 30 Changes to CEC Manual

On January 30, 2014, Citizenship and Immigration Canada attempted to publicly clarify the issue by updating OP25A.  Section 10.11 of the OP25A now states:

Applicants must have 12 months of full-time, Canadian skilled work experience (or the equivalent in part-time experience) in one or more NOC 0, A, or B occupations within the 36 months preceding the date on which their application is received [R 87.1(2)(a)].  Work experience need not be continuous under the CEC.

In addition, during that period of employment, the applicant must have:

  • performed the actions as set out in the lead statement for the occupation(s), as set out in the occupational description of the NOC [R 87.1(2)(b)]; and
  • performed a substantial number of the main duties, including all of the essential duties, of the occupation(s) as set out in the occupational description of the NOC [R 87.1(2)(c)]

Note: The “Employment Requirements” listed in the NOC occupational description are not applicable.

Any period of employment during which the applicant was engaged in full-time study will not be included in calculating the period of qualifying work experience (e.g. work experience gained through co-op work permits, off-campus work permits while a full-time student, and on-campus work permits). [R87.1(3)(a) Officers should verify the work permit information in GCMS.

Any period of self-employment or unauthorized work experience will not be included in calculating the period of work experience [R87.1(3)(b) ] A person who has worked in Canada without authorization has failed to comply with A30(1), and on that basis may be found to be inadmissible under A41.

Note: Work experience acquired while under implied status will be considered as eligible work experience under the CEC, provided that the applicant continued to work in Canada under the same conditions as their original work permit until a decision was made on their application for a work permit extension.

An allowance for a reasonable period of vacation time will generally be made in calculating the period of qualifying work experience (e.g., a two-week period of paid vacation leave within a 52-week period in which the applicant was engaged in qualifying work experience). An allowance for normal vacation time cannot be used as a substitute or proxy for meeting the in-Canada element of the work experience requirement (i.e., work experience obtained outside Canada will not be considered as though an applicant had been on a period of vacation in order to count as part of the period of in-Canada work experience).  While officers will account for a reasonable period of vacation time in calculating the period of qualifying work experience in Canada, each application is considered on its own merits with a final decision based on a review of all the information available to the officer at the time of the decision.

The applicant does not have to be employed at the time of the application, but they must have held temporary resident status during the period of qualifying work experience acquired in Canada [R87.1(3)(c)]

Note:  An applicant under the CEC does not need to hold a work permit.  Applicants who are authorized to work in Canada under R186 are eligible to apply under the CEC, but must provide documentation with their application establishing that they had legal temporary resident status in Canada (e.g., a visitor record).

Although it is beyond the topic of today’s post, it should be noted that in a new section 10.12 of OP25A Citizenship and Immigration Canada has finally clarified what self-employment means for the purpose of s. 87.1(e)(b) of the Immigration and Refugee Protection Regulations.

Post June 1, 2014

As recently noted on this blog, Citizenship and Immigration Canada is overhauling the study permit regime. The Department will be doing away with off-campus, co-op, and integral work permits.  Instead, study permits will automatically authorize the holder to work off-campus for up to 20 hours per week during the academic session and full-time during scheduled breaks without the need to apply for a separate work permit.  As well, international graduates will be authorized to work full-time after their studies are completed until a decision is made on their application for a Post-Graduation Work Permit.

As the above Q&A and reproduction from OP25A should explain, notwithstanding the change in work permit documentation, it is only after international students graduate that their work experience can count towards the CEC.

 

 

Study Permit Regulations to be Overhauled June 1, 2014

In a previous blog post, I wrote that in December 2012 the Government of Canada announced that it intended to overhaul Canada’s study permit program.  It ultimately had to delay implementing its intended reforms.  However, on February 12, 2014, the Government of Canada stated that it had made registered regulatory amendments to the Immigration and Refugee Protection Regulations (“IRPR”) which will take affect on June 1, 2014.  The changes will alter Canada’s international student landscape.

The new rules are being introduced because the Government of Canada has been concerned that some educational institutions have been taking advantage of international students.  (One of my biggest annoyances is meeting with international students who state that their private post-secondary schools misled them into thinking that they would be eligible for post-graduate work permits.)   The government has even suspected some educational institutes are little more than  ”visa mills” whose primary purpose is to get students work permits.  As well, there has been an increasing tendency of internationals students using study permits as a means to enter Canada for purposes other than study, including employment, and, allegedly, criminal purposes. Canada’s reputable post-secondary institutions, which have to compete for the best and brightest international students, have been unamused with how some of the unscrupulous behaviour has impacted their ability to market.

The changes are:

Current regulations New regulations, as of June 1, 2014
Applicants must show that they intend to pursue studies in Canada when applying for a study permit. Applicants must enrol in and actively pursue their course of studies in Canada.  The failure of a study permit holder to do so could lead to removal from Canada. The Government of Canada has amended IRPR s. 228 so that inadmissibility reports based on international students not actively pursuing studies in Canada do not require a referral to the Immigration and Refugee Board.  Instead, an officer can directly issue an Exclusion Order.  There are several exceptions to this removal possibility, including study permit holders who possess study permits because they are the family members of foreign workers, the family members of students, or the dependants or principal applicants in certain permanent resident applications.Officers will be allowed to request study permit holders provide evidence of compliance either when there is reason to believe that study permit conditions are not being met or as part of a random assessment. Enforcement actions could include desk investigations undertaken by CIC or active investigations undertaken by CBSA.
Applicants may apply for a study permit to pursue studies at any educational institution in Canada. Study permits will only be issued to successful applicants who are pursuing studies at an educational institution that has been designated to receive international students.Outside of Quebec (which has its own rules beyond the scope of this blog post), a designated post-secondary learning institution is one of:

- a learning institution that is administered by a federal department or agency; or

- if a province has entered into an agreement or arrangement with Citizenship and Immigration Canada in respect of designating post-secondary learning institutions, a post-secondary institution located in the province that is designated by the province.

If a province does not enter into an agreement with Citizenship and Immigration Canada, then immigration officers may still be authorized to issue study permits to foreign nationals where warranted if they are granted the necessary exemption on the basis of “public policy considerations as identified by the Minister under s. 25.2 of the Immigration and Refugee Protection Act.”  This presumably means that if a province does not enter into an agreement to designate schools then Citizenship and Immigration Canada will designate them in that province instead.

Individuals who wish to undertake courses or programs of study of six months or less will continue to be able to pursue studies at non-designated learning institutions as members of the visitor class.

Study permit holders pursuing studies at publicly-funded and certain privately-funded post-secondary institutions must apply for an Off-Campus Work Permit to be able to work up to 20 hours per week off-campus during the academic session and full-time during scheduled breaks.  Students could only apply after six months. Study permits will automatically authorize the holder to work off-campus for up to 20 hours per week during the academic session and full-time during scheduled breaks without the need to apply for a separate work permit. The study permit holder must be pursuing academic, vocational or professional training of six months or more that leads to a degree, diploma or certificate at a designated institution.  This is facilitated through the introduction of a new s. 186(v) of the IRPR. There is no more need for international students to study for six months before they can work off-campus.
Any international student can apply for a Co-Op Work Permit if a co-op placement is an integral element of their course of study. Only international students who are pursuing studies at a secondary school or at a designated institution may apply for a Co-Op Work Permit if a co-op placement is an essential part of their course of study.
Visitors may not apply for a study permit from within Canada Visitors may apply for a study permit from within Canada if they are at the pre-school, primary or secondary level, are on an academic exchange or a visiting student at a designated learning institution, or have completed a course or program of study that is a condition for acceptance at a designated learning institution.
International students who have completed their studies but hold valid study permits can remain legally in Canada until the expiration of their study permit. A study permit becomes invalid 90 days following the completion of studies unless the foreign national also possesses a valid work permit or another authorization to remain in Canada.
There are no references in existing regulations that clearly state that Registered Indians who are also foreign nationals are exempt from the requirement to obtain a study permit. Registered Indians who are also foreign nationals may study in Canada without a study permit as they have the right of entry into Canada.
Study permit holders are not authorized to work after the completion of their studies while awaiting approval of their Post-Graduation Work Permit Eligible international graduates will be authorized to work full-time after their studies are completed until a decision is made on their application for a Post-Graduation Work Permit.  They will not be required to apply for a work permit to do this.  A new IRPR s. 186(w) will automatically provide that such individuals can work without a work permit.

 

There new regulations contain numerous transitory provisions in order to minimize the impact on students who prior to June 1, 2014, obtain study permits at institutions which ultimately are not designated under the new rules.  Those foreign nationals whose applications for a study permit were received prior to the coming-into-force of the Regulations will not be required to be enrolled at a designated learning institution for the duration of their study permit, or in respect of its renewal, for the remainder of their study permit, or until the date that is three years after the new rules come into force, whichever is sooner.  Co-op work permit applicants whose application was received prior will also not be effected.

Designated and Non-Designated Schools

The new study permit regulations indirectly address the lack of provincial action to regulate private post-secondary institutions operating in Canada.  As noted in the Canada Gazette, provinces and territories are constitutionally responsible for education.  Provinces and territories actively regulate and have quality assurance mechanisms for public educational institutions and private degree-granting institutions.  However, provincial regulation of private non-degree granting institutions varies greatly.  According to the Gazette, Nova Scotia is currently the only province which regulates language schools.

By restricting the study permit program to designated schools, and by preventing language schools from having access to “integral portions of study work permits”, there is no question that many of these schools will close.  Indeed, the Government of Canada appears to anticipate this.  In a Cost / Benefits analysis of its new regulations, the Government of Canada wrote that one of the costs of its changes will be a loss of $357.3 million over 10 years in tuition in the non-designated educational sector. Interestingly, the Government of Canada anticipates that this will be offset by increased tuition revenue at designated post-secondary institutions of around $489.9 million.  With the Government of Canada cutting supply, and demand presumably remaining constant, it is likely that public post-secondary institutions will either raise rates, or increase the number of international students that they accept.

Cost, Benefit   Base Year 2014 Year Five 2018 Final Year 2023 Total Annual Average
Cost Non-Designated Sector 21.9M 37.4M 30.5M 346.5M 34.7M
Benefit Designated Sector 4.6M 55.8M 45.8M 489.9M 49.0M

 

Perhaps not surprisingly, the changes have been met with fierce resistance from the private post-secondary education industry.  The Government of Canada writes in the Gazette that:

Regulatory changes to limit an international student’s authorization to work off campus and/or in a co-op/internship program to students studying at a designated educational institution in an academic, vocational or professional training program were strongly opposed by Languages Canada and the language school industry, as students at language schools do not meet these requirements. The industry has identified that because students attending language schools are unable to work, the industry would experience a number of impacts, the most significant of which is economic loss. CIC has seriously considered feedback received from this sector; however, access to the Canadian labour market by international students should be refocused to align with their eligibility to remain as potential immigrants once educational credentials have been completed. This is consistent with broader departmental efforts to support the selection of foreign nationals who will succeed in the Canadian economy.Students focused on language acquisition programs generally undertake short-term studies and are often not equipped with the language skills to make a meaningful contribution to Canada’s labour market, nor are they eligible to stay in Canada based on their language credentials. CIC wants to ensure that these students are clearly focused on completing their program of study during their short stay in Canada.

I am undecided on the above.  I have had many clients who attended a six month language training course and then obtained a six month work permit.  During their time on their respective work permits they obtained valuable employment with reputable companies (including banks, tech start-ups, and natural resources firms).  Of course, it also was somewhat obvious that the reason that these individuals attended language school in Canada was not to improve their English (their English was impeccable) but rather to gain entrance to the Canadian labour market.  Unless one views economics and jobs as a zero-sum endeavour, it is not clear though that their employment is bad for Canada. Furthermore, for genuine language students, immersing oneself in English by working in Canada is clearly beneficial for language studies.

Ultimately, however, it will be for the provinces to decide which schools are designated.  As noted in the Gazette:

Languages Canada and member schools requested that, given the lack of provincial regulatory frameworks for language training (with the exception of Nova Scotia), CIC consider exempting the language training sector from provincial designation until such time as provinces and territories can regulate this sector, or recognize the Languages Canada Quality Assurance Framework for the purpose of designating institutions at the federal level. The National Association of Career Colleges has asked that the definition of a designated learning institution include all provincially regulated career colleges, or, as a transitional measure, recognize colleges approved for the Canada Student Loans Program until provinces and territories can complete assessments of educational institutions against their respective designation criteria. Regulations have not been adjusted to accommodate these particular recommendations. Rather, to level the playing field, the Regulations eliminate the list of learning institutions that would be considered to be designated should a province or territory fail to enter into an agreement or arrangement with the Minister of CIC. This more adequately reflects the role that provinces and territories have agreed to play in support of these Regulations, given their jurisdiction over education.

It will be interesting to see the different provincial approaches to designating educational institutions.

Government of Canada To Terminate Federal Investor Queue

Ever since the Federal Court dismissed a class-action lawsuit over the Government of Canada’s decision to terminate the Federal Skilled Worker Program backlog, many immigration practitioners have wondered if the government would do the same thing to the Federal Immigrant Investor Program (“FIIP”) backlog.  On February 11, 2014, the governing Conservative Party of Canada stated that it would.  The 2014 federal budget, called Economic Action Plan 2014, states that the Government of Canada intends to return and refund “certain” FIIP applicants who applied before February 11, 2014.

The FIIP

Under the FIIP, Canada offers permanent residence in exchange for a guaranteed $800,000 loan (before 2010, the amount was $400,000). The FIIP has long faced criticism.  In 2010, Ryan Rosenberg, a Partner at our firm, wrote  in The Canadian Immigrant that:

Many savvy investors, like my client, look at a $400,000 investment without interest as a lost opportunity and, instead of investing the full amount, seek out financing from one of a number of government-authorized financial intermediaries (“banks”).

For years now, the banks themselves, consultants and lawyers have promoted a financing option at $120,000. For $120,000, a bank will lend an investor funds required for investment under the program and facilitate the investment itself. The investor is also required to sign an assignment of the $400,000 refund from the government to the bank at the end of the five-year term.

The $120,000 covers all interest charges and bank fees associated with the investment and at the end of the five-year term the investor receives no money in return. So where does all that money go?

Based on today’s interest rates (which we know are going up sometime soon), the cost to finance a $400,000 loan for five years is about $1,000 a month in interest alone. So, over 60 months, the cost should run about $60,000. If any of the $120,000 payment is used to bring down the total amount borrowed (think of it like a down payment on your house), the monthly interest payment would also drop. So, if $60,000 of the $120,000 goes to the bank for interest that does seem quite reasonable. Banks are in the business of lending money, after all.

So now we are left with $60,000 — where does that money go?

Commission omission

And it isn’t only $60,000 left in the pool. It’s more like $88,000. Theoretically, it is the provinces who benefit from the $400,000 investments made under this program; in return for raising money, the provinces pay out a commission of $28,000 to the banks and that commission trickles down to the consultant and lawyers (a large number of whom aren’t even Canadian taxpayers) who refer clients to the banks.

Most banks top up that commission and my research shows a range in commissions payable to consultants and lawyers of $23,000 to $58,000. Assuming $58,000 goes to the referring party, $30,000 of the $88,000 remains for the bank in addition to the $60,000 earned in interest, for a total of a $90,000 profit. Although most were forthcoming, when I called one of our banks to ask about their terms under the program, the representative refused to tell me what commission they were willing to pay.

When I explained to her that I wanted to know because I wanted to tell my client where his money was going, she was shocked and appalled that I would be so honest with him. Most people, she explained, don’t tell their clients about the commission. I’ve come to learn that the $120,000 financing option is so popular and is marketed so well that most immigration practitioners rely on it without any consideration to other options or where the money goes.

I’ve also come to learn that the practice of not disclosing commissions to clients is also widespread in the consulting community and quite possibly in the legal community albeit to a lesser extent based on the people I’ve talked to.

In addition to questionable practices surrounding commissions, the Government of Canada began to question whether the FIIP was attracting the type of immigrants that the Government of Canada wanted.  According to CIC, over a 20-year career, an immigrant investor pays about $200,000 less in income taxes than a federal skilled worker and almost $100,000 less in taxes than one live-in caregiver.  A CIC backgrounder further stated that:

A recent survey concluded that immigrant investors have the lowest official language ability of any immigrant category, including refugees. Official language ability is a key factor in the successful integration of immigrants. Data also indicate that immigrant investors are less likely than other immigrants to stay in Canada over the medium to long term.

The existing IIP is of limited economic benefit to Canada. There is very little “new” money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments.

The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested.

Step by Step to Termination

The first change that the Conservative Party of Canada made to the FIIP was to increase the required investment amount from $400,000 to $800,000, and “pause” the intake of applications.  At the same time, Citizenship and Immigration Canada’s Ministerial Instructions II stated that FIIP applications submitted after June 26, 2010, would be processed concurrently (rather than after) applications submitted before.  MII stated:

Federal Immigrant Investor applications received on or after the coming into force of the proposed regulatory amendments to the definitions of “Investor” and “Investment” applicable to Business Immigrants in Division 2 of Part 6 of the Immigration and Refugee Protection Regulations shall, as a category, be processed concurrently with those federal applications received prior to the administrative pause in a ratio consistent with operational requirements.

Operational Bulletin 252 provided even further instructions, stating that for every two $400,000 investor applications visa offices had to process one $800,000.  OB 252 stated:

In addition, effective December 1, 2010, visa offices are to put new applications under the federal IIP – those received on or after December 1, 2010, – into process immediately. New and old (i.e. applications under the federal IIP received before June 26, 2010) applications will be processed concurrently. As a general rule, visa offices should process applications under the federal IIP in a 2:1 case processing ratio of old inventory applications to new applications received on or after December 1, 2010. The concurrent case processing ratio of 2:1 is provided as a guideline only; this ratio may change over time in accordance with operational requirements and may not apply equally to all visa offices depending on the volume of investor class applications processed by a given visa office.

The decision not to process applications in the order that they were received was but one of many examples of Citizenship and Immigration Canada abandoning first-come-first-served processing.

The Backlog

Not surprisingly, the FIIP backlog grew. As of February 11, 2014, it stood at 65,000 individuals.

In January, the Federal Court dismissed an application by several investors who sought that the court order Citizenship and Immigration Canada to expedite the processing of their application.  An affidavit filed in support of Citizenship and Immigration Canada, which we have obtained, provides useful insight into how bogged down visa posts were with applications, and how long it would likely take for many applications to even be opened.

Budget 2014

Perhaps not surprisingly then, Budget 2014 states that:

The Government of Canada is committed to immigration that contributes to job creation and economic growth. In recent years, significant progress has been made to better align the immigration system with Canada’s economic needs.

The current Immigrant Investor Program stands out as an exception to this success. For decades, it has significantly undervalued Canadian permanent residence, providing a pathway to Canadian citizenship in exchange for a guaranteed loan that is significantly less than our peer countries require. There is also little evidence that immigrant investors as a class are maintaining ties to Canada or making a positive economic contribution to the country. Overall, immigrant investors report employment and investment income below Canadian averages and pay significantly lower taxes over a lifetime than other categories of economic immigrants. For these reasons, the Immigrant Investor Program has been paused since July 2012 and the Entrepreneur Program since July 2011.

Economic Action Plan 2014 proposes to end these underperforming programs.

To eliminate the existing backlog, which is diverting resources away from better performing economic immigration streams, the Government intends to return applications and refund associated fees paid by certain federal Immigrant Investor Program and Entrepreneur Program applicants who applied on or before Budget Day.

In place of the current Immigrant Investor Program, the Government will introduce a new Immigrant Investor Venture Capital Fund pilot project, 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. Together, these pilots will test new and innovative approaches to business immigration that will better fuel the continued growth of the Canadian economy.

To Follow

As noted above, we were not surprised by the Government of Canada’s decision to both end the FIIP and to terminate the backlog.  It remains to be seen which FIIP applications will be terminated and which ones will not be.  I would be surprised if the Government of Canada terminated applications where investors committed to loaning the Government of Canada $800,000, and expect that it will only be the $400,000 applications which are terminated.  That is just speculation.

It will also be interesting to see what, if anything, Quebec does.  Quebec has its own investor program which is almost identical to the FIIP.  The processing times for it are massive.  What Quebec chooses to do, and/or anything the federal government tries to do on this issue, will be extremely interesting to watch over the next several months.