Author Archives: Steven Meurrens

Service Canada “Refusal to Process” in Certain Economic Regions

On June 23, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”).  One of the changes was:

Refusing Low-Skilled Applications in Areas of High Unemployment in Some Occupations

ESDC will refuse to process certain LMIA applications in the Accommodation, Food Services and Retail Trade sectors. Specifically, ESDC will not process LMIA applications for employers if they meet all of the following criteria:

  • the employer is applying for an LMIA in a Statistics Canada economic region with an annual unemployment rate over 6%;
  • the employer is seeking an LMIA in a specific occupation identified under North American Industry Classification System as Accommodations & Food Service or Retail Sales; and
  • the employer is seeking an LMIA in an occupation in one of the following occupations:
    • Food Counter Attendants, Kitchen Helpers and Related Occupations ;
    • Light Duty Cleaners ;
    • Cashiers;
    • Grocery Clerks and Store Shelf Stockers;
    • Construction Trades Helpers and Labourers;
    • Landscaping and Grounds Maintenance Labourers;
    • Other Attendants in Accommodation and Travel;
    • Janitors, Caretakers and Building Superintendents;
    • Specialized Cleaners; and
    • Security Guards and Related Occupations.

In today’s post, I wish to elaborate on the above.

 

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The National Occupational Classification System

Much of Canada’s immigration system is based on Human Resources and Skills Development Canada (“Service Canada’s“) National Occupational Classification (“NOC“) system.  Economic class applicants generally need to understand the NOC system because the success of their applications will depend on them demonstrating that they have qualifying experience or pre-arranged employment in certain NOCs.  Employers submitting Labour Market Impact Assessment applications to the Ministry of Economic and Social Development Canada (“ESDC“) need to know which NOCs their vacant positions fall under because this will determine the respective prevailing wage and recruitment requirements.  Indeed, it is arguable that international graduates should pay attention to the NOC of their first jobs out of post-secondary school because only experience in certain NOCs will count towards immigration.

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The Canada-European Union: Comprehensive Economic and Trade Agreement

On September 26, 2014, Canada and the European Uniona agreed to adopt the The Canada-European Union: Comprehensive Economic and Trade Agreement  (“CETA“), with the goal being that the agreement will take effect in 2016.

Chapter 12 of CETA provides for the facilitation of the temporary entry of business persons.  The CETA Techinical Summary of the Final Negotiated Outcomes notes that the European Union’s commitments are the most ambitious that the region has ever negotiated in a free trade agreement.  For Canada, the CETA’s temporary contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences.  

CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs”).  

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA.  When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union.

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LMO Exemption for Francophones (Discontinued September 30, 2014)

[Update - October 2, 2014 - Please note that CIC has terminated the LMIA exemption for Francophones]

On June 1, 2012, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 429 (“OB 429“).  OB 429 provides that francophones destined to a province other than Quebec who will be working in a high skilled occupation can receive two year significant benefit work permits.  The benefit of a significant benefit work permit is that no Labour Market Opinion (as of June 20, 2014, referred to as a Labour Market Impact Assessment (“LMIA“)) is required.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • have been recruited through Destination Canada or other events coordinated with the federal government and francophone minority communities;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Importantly, the job itself does not have to require French.

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Proposed Changes to Temporary Foreign Worker Program Compliance

On September 24, 2014, the Ministry of Economic and Social Development Canada (“ESDC“) posted on its website a discussion paper titled “Regulatory proposals to enhance the Temporary Foreign Worker Program and International Mobility Program compliance framework.”  ESDC appears to recognize that the existing legal authority to ban a non-compliant employer for two years and revoke associated Labour Market Impact Assessments (“LMIA“) may be too severe in some circumstances and not severe enough in other cases.  As such, the Government of Canada is proposing to introduce some compliance activities that are preventative and educational in nature, and others where the penalty for non-compliance is more severe. Specifically, ESDC is proposing to expand the range of bans from two years to include one, five, and ten year bans.

As will be seen below, however, there appears to be alot more “stick” than “carrot” in ESDC’s approach.

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The Canada-Korea Free Trade Agreement

On September 22, 2014, Canadian Prime Minister Stephen Harper and South Korean President Park Geun-hye signed the Canada-Korea Free Trade Agreement (“CKFTA“).  Chapter 12 of the CKFTA provides for the facilitation of the temporary entry of business persons.  The CKFTA Final Agreement Summary notes that South Korea’s commitments are the most ambitious the country has ever negotiated in a free trade agreement.  For Canada, the CKFTA’s temporary entry provisions are pretty similar to those contained in the North American Free Trade Agreement (“NAFTA“), although there are differences.

The CKFTA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under the CKFTA do not require Labour Market Impact Assessments (“LMIA”).  Indeed, as the CKFTA Final Agreement Summary states:

When it comes to investing and providing services, there is no substitute for being on-site, where clients are located. Investors want to witness their investments, talk to their partners and get a feel for the local environment. Professionals, including architects, management consultants and engineers, need to contact clients on-site in order to fulfil contracts in the South Korean market.

Temporary-entry provisions in the Canada-Korea Free Trade Agreement address barriers that business persons face at the border, particularly by eliminating the need to obtain a labour market opinion and/or economic needs test. The Agreement will establish new preferential access to our respective markets and facilitate greater transparency and predictability for the movement of business persons between Canada and South Korea. The Agreement’s temporary-entry provisions complement commitments taken in the area of services, investment, goods and government procurement.

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA.  When the CKFTA takes affect, the same will be true for Canadian employers hiring Korean nationals.

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The ICCRC Disciplinary Process [Updated 13/09/14]

Two days ago I met with an individual who claimed to have received horrible treatment from two separate immigration consultants in Metro Vancouver.  The specific alleged deplorable actions included that:

  • Consultant A refused to give the individual her Visitor Record until she paid him $2,000.00.
  • Consultant A refused to provide her with a BC PNP refusal letter, and to this day has not provided a copy of the refusal letter.
  • Consultant B refused to submit a response to a BC PNP fairness letter without receiving a large payment that was not mentioned in the retainer agreement.
  • Consultant B refused to meet with her once the application was refused.

Both of these consultants are licensed consultants and members of the Immigration Consultants of Canada Regulatory Council (“ICCRC“).  I recommended that the individual file complaints against both consultants.  Unfortunately, my recommendation came with the caveat that to my knowledge the ICCRC has not once yet disciplined a single consultant against whom a complaint was filed.

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The Right to Counsel at the Port of Entry

Section 10 of the Canadian Charter of Rights and Freedoms provides that:

10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

In the immigration context, the right to counsel does not arise at most secondary examinations.  CBSA’s policy is not to permit counsel at examination if detention has not occurred, although officers will often waive this policy if they are satisfied that legal representatives will not interfere with the examination process.  The right to counsel does, however, arise when a routine search or examination becomes a detention.

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