Category Archives: Federal Skilled Workers

Questions & Answers – FSWP Education Points and On-Campus Work Permits (IR-04)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding Education Points under the Federal Skilled Worker Program, as well as a question about On Campus Work Permits.

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 06, 2013

Dear Sir / Madam,

I have two questions:

1. For submissions under the Federal Skilled Worker Program, do applicants need to submit proof of completion of secondary school if their highest level of education is a bachelor’s degree (or higher)?  In other words, is documentation required for all secondary and post-secondary students, or just for the highest level of education claimed?

2. Is there a maximum number of hours that a student with a valid study permit can work ON campus?  I understand that Off-campus work permit holders can only work 20 hours and I was wondering if the same restriction applies to On-campus work.

Best regards,

Answer – May 27, 2013

1) As noted in the Federal Skilled Worker Program application guide, in order to meet the minimum education requirement, all applicants must submit proof of:

  • a completed Canadian secondary or post-secondary credential, or
  • a completed foreign educational credential and an Educational Credential Assessment (ECA) report issued by an organization designated by CIC if their educational credential was obtained outside Canada.  The ECA report must confirm the equivalency of the completed foreign educational credential to a completed Canadian secondary or post-secondary educational credential.

An applicant submitting proof of a Canadian post-secondary educational credential (or an equivalent foreign educational credential) does not need to also submit proof of completion of a secondary educational credential.

2) There is no restriction on the number of hours that a student with a valid study permit can work on campus.

However, as per section 5.21 of OP12, “to be eligible for employment on campus, the student:

  • be registered full-time at a public university, community college, CEGEP, publicly funded trade/technical school or private institution authorized by provincial statute to confer degrees; 
  • be in possession of a valid and subsisting study permit; and
  • work on campus at the institution where they are registered, whether for the institution itself or for a private business located on campus.

 

Question & Answer – FSW Arranged Employment and ICTs (IR-03)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding Arranged Employment under the Federal Skilled Worker Program for Intra-Company Transferees.  The Federal Skilled Worker Program allows certain individuals employed in Canada without a Labour Market Opinion to qualify for Arranged Employment.  As with any program, questions emerged regarding specific requirements, including whether intra-company transferees qualify for Arranged Employment without a Labour Market Opinion.

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 28, 2013

Hello,

Could you please confirm if the intra-company work permit holders in Canada can be considered to have arranged employment under the new rules (as of May 4th 2013) and could submit a FSW application based on the fact they hold ICT work permit and have an indeterminate job offer from the same employer.

Answer – May 28, 2013

Intra-company transferees in Canada who hold a valid work permit which is exempt from the Labour Market Opinion (LMO) requirement under R204(a), are working for an employer specified on the work permit and have a qualifying offer of arranged employment from the same employer are eligible to apply under the arranged employment stream under the Federal Skilled Worker Program under the new rules which came into effect on May 4, 2013 [R82(2)(b)].

All other intra-company transferees who hold a valid work permit which is LMO-exempt under R205 would also be eligible to apply provided they had a qualifying offer of arranged employment from their prospective employer, and that employer had obtained a positive LMO [R82(2)(d)].

The Immigration and Refugee Protection Regulations are actually very clear on the above.  I presume that the representative who asked the above question knew what the answer was, but wanted Citizenship and Immigration Canada to explicitly confirm this requirement for the Federal Skilled Worker Program.

I do not understood the Government of Canada’s policy rationale for why intracompany transferees under NAFTA, the Canada-Chile FTA, the Canada-Peru FTA, and other free-trade agreements are eligible under the new Federal Skilled Worker Program for Arranged Employment without a Labour Market Opinion, while general intra-company transferees are not.  When the law first came out I thought that a possible solution would be to request that officers process general intra-company transferees under the GATS agreement.  However, the Foreign Worker Manual now instructs officers to process GATS intra-company transferees under R205(a), C12, thereby excluding them from qualifying for Arranged Employment without a Labour Market Opinion.

ATIP Results for CAPIC Presentation

I will be presenting in Vancouver tonight at the Canadian Association of Professional Immigration Consultants annual general meeting  on the recently changed Federal Skilled Worker Class and the Canadian Experience Class.  This follows up on a presentation I made on the same topic at the Canadian Bar Association annual immigration conference in Montreal.

As part of my presentation, I have made available the following ATIP result publicly available.  This ATIP contains training manuals and internal procedures used at Citizenship and Immigration Canada’s Centralized Intake Office in Sydney, Nova Scotia.  It can be viewed by clicking the link below.

ATIP CIO TRAINING MANUALS – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/compressed.PDF

I have also reposted the following copies of ATIP results which I made available for the Canadian Bar Association conference in Montreal.

ATIP 1 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP1.PDF

Contains:

  • An e-mail discussion on substituted evaluation;
  • Several e-mail discussions regarding issues with the PhD program;
  • Processing delays with the CEC;
  • Issues with the 2D barcode and GCMS;
  • Addressing problems with Indian Birth Certificates;
  • and more.

ATIP 2 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP2.PDF

Contains:

  • An e-mail discussion on working overtime to process capped applications;
  • Clarifying the use of Academic IELTS;
  • E-mails on processing reconsideration requests; and
  • Several OBs (most already public, and some not).

ATIP 3 - https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP3.PDF

Contains:

  • GCMS Shortcuts and Tips;
  • Case Studies on Removal Orders and ARC;
  • Cheat Sheet on Calculating the Start of the 5 Year Period for Rehab;
  • Training guides for misrepresentation;
  • Assessing medical specializations and professional degrees;
  • Assessing Skilled Workers (Islamabad Caseload);
  • Exercises on assessing Ministerial Instructions;
  • Federal Skilled Worker Cheat Sheet;
  • C-50 Summary;
  • Australian Police Certificates;
  • Criminality in the UK, equivalency sheets, and a whole lotta rehab stuff;
  • War Crimes (including a chart of every organization the courts have upheld as being brutal or non-brutal);

Please note that the ATIP results above are copies of official works by the Government of Canada which were obtained through Access to Information and Privacy Act Requests, and to my knowledge is not otherwise publicly available.  While I believe that most of the data is still current, I cannot be assured of this, and some programs may have changed lately.  The documents should only be used for informational purposes current as to the date that they were originally produced.  The reproduction of these documents has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated - Federal Court of Appeal Dismisses Appeal]

In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“).  Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012.

Section 87.4(1) reads:

87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).

The Court’s certified questions are:

  1. Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?
  2. Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?
  3. Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?

The applicants argued that Section 87.4 did not apply retrospectively to interfere with vested rights, and that it did not operate to terminate the applications as a matter of law.  Rather, they argued that individualized adjudication must follow to determine which applications were encompassed.

In rejecting this argument, the Court reiterated that the principles of statutory interpretation are that courts will not interpret legislation in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear.  However, when a statute is unambiguous the courts have to interpret it according to its ordinary meaning.  On the issue of Section 87.4, the Court wrote:

Here, the ordinary meaning of the provision governs.  The meaning and effect of the word “terminated” is clear.  Section 87.4, by its terms, is explicitly designed to apply retrospectively to applications dated before February 27, 2008 and to eliminate the obligation to further process pending applications.  The plain and obvious meaning of section 87.4 requires that the provision be retrospective and interfere with vested rights, regardless of any perceived unfairness.  The three presumptions relied on by the applicants are displaced by the clarity of Parliament’s intention.  Further, to interpret the section otherwise would leave it without any effect beyond refunding the application fee.

The Court further held that Section 87.4 entailed a non-discretionary application of law to verifiable and incontrovertible facts.

Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?  

Subsection 1(a) of the Bill of Rights protects the right not to be deprived of property except by due process of law.  Subsection 2(e) guarantees a fair hearing for the determination of rights and obligations.  The applicants argued that Section 87.4(1) of IRPR breached both of these requirements.

On the latter issue, the Court determined that due process protections of the Bill of Rights do not apply to legislative enactments, and that the Bill of Rights only guarantees the fairness of proceedings before a tribunal or administrative body that determines rights and obligations.  In reaching this decision, the Court relied on the following passage from the Supreme Court of Canada’s decision in Authorson v Canada (Attorney General):

Similarly, s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960.  Certain procedural rights in this regard have long been recognized.  In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension.  Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required.  For example, such rights may exist where the government eliminates a veteran’s benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces.  However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits.

The Court also found that submitting an economic immigration application did not vest any rights in an applicant, but rather was a mere chance to gain access to economic opportunities in Canada.

Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

After extensive obiter about whether the applicants could even claim to be entitled to Charter protection, the Court ruled that it did not matter in any event because Section 87.4(1) of IRPA did not breach the Charter.  

Regarding s. 7, the Court found that it was primarily (though not exclusively) concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment, as well as in the non-criminal contexts of the freedom to make fundamental personal choices, and the freedom to physical and pyschological integrity.

The Court further stated, however, that it did not extend to immigration, as the ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy which would engage s. 7 of the Charter.  To paraphrase, while immigration may have life-altering consequences, the possibility of immigrating to Canada as a successful economic applicant does not engage life or liberty interests.

Regarding s. 15, the applicants argued that Section 87.4 codified and legitimized past discrimination on the basis of national origin and country of residence.  The evidence was that approximately 92% of the terminated applications originated in Africa, the Middle East, Asia and the Pacific, while 8% of the terminated applications originated in Europe and the Americas.  However, the Court found that the fact that immigrants arrive from all over the world, that Citizenship and Immigration Canada tried to address backlogs by transferring processing, and that people from all over the world living in Canada could (then) apply to the Canadian Consulate in Buffalo, showed that there was no discrimination.

Conclusions

Considering that around 1,000,000 people were affected by the Tabingo decision, it is not surprising that the Court certified the above three questions.  The matter is now on its way to the Federal Court of Appeal.

[UPDATE - September 17, 2014] 

The FCA has dismissed the appeal. More to follow.

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/73144/index.do

Educational Credential Assessments (Updated May 22)

Citizenship and Immigration Canada has released the names of the designed Educational Credential Assessment agencies.

Starting on May 4, 2013, applicants to the Federal Skilled Worker Program will be required to submit an Educational Credential Assessment.  Subsection 75(2)(e) makes this a requirement even if the applicant does not wish to rely on Education points.

The four designated organizations are:

The Medical Council of Canada has been designated only for those applicants who intend to apply with “specialist physician” or “general practitioner/family physician” as their primary occupation in their Federal Skilled Worker Program application.

I have browsed the websites of each of the above agencies, and produced the table below.  Getting educational credentials assessed is going to be a very time consuming process.  Right now the World Education Services website strongly suggests that it is faster, cheaper, and less document heavy than the other two organizations.  However, I would not be surprised if competition forces the other two organizations to change, and applicants are advised to check all websites to determine which one agency would be best for them.

Factor Comparative Education Service International Credential Assessment Service of Canada Word Education Services Medical Council of Canada
Documents Required Application Form

Color photo ID showing DOB.

 

Color copy of credential and official translation.

 

Color copy of both sides of transcripts and official translation.

 

Sealed academic records mailed directly from institution to agency.

Copy of name change (if applicable).

Online application. 

Copy of each side of credential and translation.

 

Copy of both sides of transcripts and  translation.

 

Copy of abstract of thesis/dissertation and translation.

 

Copy of name change (if applicable).

 

Sealed academic record mailed directly from institution to agency.

 

Online application. 

No general documentation requirement, but country specific checklists generally include copies of credentials, letters confirming awarding of documents, and transcripts.

Copy of name change (if applicable).

Sealed academic records mailed directly from institution to agency.

Open an account with the MCC Physician Credential Repository 

Submit a Source Verification Request for their Final Medical Note

 

Certified copy of the medical diploma.

 

Translations.

Country Specific Additional Documents Yes. Yes. Yes. Not clear.
Cost Regular – 226Rush – 508.50 200 + HST 180 + HSTRush – 280-300 + HST 300+
Processing Regular – 11 weeksRush – five days after receipt of all documents 6-8 weeks Standard – Seven days upon receipt of all documents.Three day and same day processing available. 75-105 days

 

New 2013 Federal Skilled Worker Class (Updated – April 18, 2013)

(On August 17, 2012, Citizenship and Immigration Canada (“CIC”) announced that it would be overhauling Canada’s Federal Skilled Worker Class (“FSWC”).  Numerous program announcements have been introduced since then.  Each time we have revised and updated this blog post.  The most recent update was on April 18, 2013.)

In brief, the FSWC will now focus on youth and language fluency.  It will also require foreigners to have their educational credentials assessed by designated agencies.  The Arranged Employment Opinion process is being abolished.  The program will continue to feature limits on the number of occupations which can apply, and there will be caps.

The revised program will begin accepting applications on May 4, 2013.

Eligible Occupations List

For those not applying under the Arranged Employment stream or the PhD Stream, applicants must have at least one year of continuous work experience in one of 24 occupations (the “Eligible Occupations Stream”).

The Eligible Occupations are:

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

The eligible occupations stream will have an overall cap of 5,000 new applications and sub-caps of 300 applications in each of the 24 occupations on the list.

The New Points Breakdown

Under the new Federal Skilled Worker Class (“FSWC“), the six selection factors and the maximum number of points available for each factor will be as follows:

SELECTION FACTORS CURRENT POINT SCALE NEW POINT SCALE
1. English / French Ability Maximum 24 points Maximum 28 points
2. Education Maximum 25 points Maximum 25 points
3. Experience Maximum 21 points Maximum 15 points
4. Age Maximum 10 points Maximum 12 points
5. Arranged employment Maximum 10 points Maximum 10 points
6. Adaptability Maximum 10 points Maximum 10 points
Total Maximum 100 points Maximum 100 points
Pass Mark 67 points 67 points

Factor 1: Ability in English and or French

The FSWC’s language requirements are being completely re-done, and made much more stringent.  Previously, using applicants who submitted International English Language Testing System (“IELTS“) results as an example, applicants were awarded points as follows:

LEVEL POINTS (PER ABILITY) TEST RESULTS FOR EACH ABILITY
SPEAKING LISTENING READING WRITING
High First official language:4 6.5 – 9.0 7.5 – 9.0 6.5 – 9.0 6.5 – 9.0
Second official language: 2
Moderate Either official language: 2 5.5 – 6.0 5.5 – 7.0 5.0 – 6.0 5.5 – 6.0
Basic Either official language: 1
(maximum of 2)
4.0 – 5.0 4.5 – 5.0 3.5 – 4.5 4.0 – 5.0
None 0 Less than 4.0 Less than 4.5 Less than 3.5 Less than 4.0

Under the new FSWC, the Canadian Language Benchmark requirements to be eligible for points are much higher.  The points allocation system will initially be as follows:

LEVEL POINTS (PER ABILITY) TEST RESULTS FOR EACH ABILITY
SPEAKING LISTENING READING WRITING
High First official language:6 9.0 9.0 9.0 9.0
High First official language: 5 8.0 8.0 8.0 8.0
High First official language: 4 7.0 7.0 7.0 7.0
Less than High 0 Less than 7.0 Less than 7.0 Less than 7.0 Less than 7.0

The IELTS equivalence is as follows:

LEVEL POINTS (PER ABILITY) TEST RESULTS FOR EACH ABILITY
SPEAKING LISTENING READING WRITING
High First official language:6 7.0 8.0 7.0 7.0
High First official language: 5 6.5 7.5 6.5 6.5
High First official language: 4 6.0 6.0 6.0 6.0
Less than High 0 Less than 7.0 Less than 7.0 Less than 7.0 Less than 7.0

Importantly, the FSWC will now contain a minimum language requirement.  Applicants who score less than 7.0 in any CLB language indicator will be ineligible to apply to the program.  The Minister of Citizenship and Immigration Canada (the “Minister”) shall have the discretion to increase or decrease this minimum language threshold, as well as the points allocated for test results, to meet program processing objectives.

The maximum number of points available for the second official language is 4.  To be eligible for second official language points, applicants must score a minimum of 5.0 or above in all abilities.  Essentially, points for second language will only be available for applicants who are functionally bilingual.

Factor 2: Education

Points for education are being rebalanced as follows:

CURRENT FSWC NEW FSWC
EDUCATION POINTS EDUCATION POINTS
Master’s or PhD (+17 years) 25 Doctoral 25
Two or more university degrees (+15 years) 22 Master’s Level or Professional Degree 23
A three-year diploma, trade certificate or apprenticeship (+15 years) 22 Two or more post-secondary credentials (one of which is >2 years) 22
A university degree of two years or more at the Bachelor’s level (+14 years) 20 Three-year or longer post-secondary credential 21
A two-year diploma, trade certificate or apprenticeship (+14 years) 20 Two-year post-secondary credential 19
A one-year university degree at the Bachelor’s level (+13 years) 15 One-year post-secondary credential 15
A one-year diploma, trade certificate or apprenticeship (+13 years) 15
A one year diploma, trade certificate or apprenticeship (+12 years) 12
Secondary school 5 Secondary school 5

CIC is removing from applicants and immigration officers the often confusing responsibility of determining how a foreign credential should be compared to a Canadian one (previously done by comparing the number of years it took to achieve the credential). CIC is transferring this responsibility to designated organizations   Applicants with foreign credentials will be required to have a designated organization authenticate and assess their credentials prior to applying for the FSWC.  Applicants whose credentials either do not eixsit in Canada or do not have a Canadian credential equivalent will not be eligible to apply to the FSWC.

Four organizations have been designated by the Minister to provide educational credential assessment reports. The designated organizations are:

Factor 3: Experience

Under the new FSWC, points for experience in a skilled occupation will be allocated as follows:

Experience Current Points New Points System
1 year 15 9
2 year 17 11
3 year 19 11
4 year 21 13
5 year 21 13
6 + year 21 15

Prior to its recent suspension, the FSWC was limited to applicants with at least one year of experience in one of 29 eligible occupations.  This limitation was implemented through Ministerial Instruction, and it is not clear whether the Ministerial Instruction will continue, or if it is being abolished.  As such, it is not yet clear whether the FSWC will be reduced to experience in certain occupations.

Factor 4: Age

Under the new FSWC, points for Age will be allocated as follows: :

AGE FACTORS
CURRENT SYSTEM NEW SYSTEM
AGE POINTS AGE POINTS
16 or under 0 17 or under 0
17 2 18-35 12
18 4 36 11
19 6 37 10
20 8 38 9
21-49 10 39 8
50 8 40 7
51 6 41 6
52 4 42 5
53 2 43 4
54 and over 0 44 3
45 2
46 1
47 and over 0

Factor 5: Arranged Employment

The Arranged Employment Opinion process is being eliminated.   Instead, points for Arranged Employment will be available as follows:

POINTS ARRANGED EMPLOYMENT POINTS
10 Applicant is a Temporary Foreign Worker (“TFW”) in Canada pursuant to either a positive Labour Market Opinion (“LMO”) or is authorized to work in Canada without a work permit, is working in a skilled position, and has been offered indefinite employment.Applicant is a Temporary Foreign Worker working in Canada pursuant to an international agreement or an agreement between the federal government and the province(s), is working in a skilled position, and has been offered indefinite employment.Applicant is not in Canada however an employer or an officer has obtained a positive LMO for the applicant.

CIC has indicated that switching from the Arranged Employment Opinion to the LMO will increase efficiency and reduce fraud.  While it will certainly do the former, it is not yet clear why abandoning the AEO in favour of the LMO will reduce fraud.

As well, it is unclear in the third scenario above whether the LMO only has to be valid at the time of application, or if a new LMO must be obtained prior to the permanent resident visa being issued.

Factor 6: Adaptability

Points for adaptability are being rebalanced as follows:

CURRENT FSWC ADAPTABILITY POINTS NEW FSWC ADAPTABILITY POINTS
EDUCATION POINTS EDUCATION POINTS
Spouse’s partner’s education. 3-5 Spouse’s education. 0
Applicant or spouse has one year of full-time previous work in Canada. 5 Applicant has one year of full-time skilled previous work in Canada. 10
Possession of Arranged Employment Offer 5 Applicant has Arranged Employment points. 5
Any relatives in Canada who are a Canadian citizen or permanent resident. 5 Any relatives in Canada who are a Canadian citizen or permanent resident and over the age of 18 5
Applicant has previous study of 2 or more years in Canada. 5
Applicant’s spouse has previous study of 2 or more years in Canada. 5
Applicant’s spouse scores 4 on all language abilities. 5
Applicant’s spouse has previous work in a skilled position in Canada. 5

The maximum number of points available for adaptability continues to be 10.

Visa Officers can Overrule AEOs

The Federal Court has ruled that a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development (“Service Canada“) that an arranged offer of employment is genuine.

In Ghazeleh v. Canada (Citizenship and Immigration), the Court had to determine whether a visa officer erred in awarding a Federal Skilled Worker Class applicant zero points for Arranged Employment because the officer was not satisfied by Service Canada’s Arranged Employment Opinion (“AEO“).  Specifically, the officer had concerns with the employer’s ability to employ the applicant as the company was losing money.  The applicant was unable to alleviate the officer of his concerns.

At Federal Court, the applicant’s lawyer argued that the visa officer erred in overriding the AEO.

The Court, however, disagreed, and stated that Service Canada’s opinion is only the first step in the validation of an employment offer, and does not end the inquiry.  Citing Bellido v. Canada (Minister of Citizenship and Immigration), the Court also noted:

HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.

In this case, the visa officer was not satisfied that the applicant could perform the work sought because the officer concluded that the employer’s financial circumstances meant that it could not even pay the applicant to do work.

The Court described the division of responsibilities between Citizenship and Immigration Canada and Service Canada as being:

It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa.  To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister’s statutory obligations under the IRPA or a fettering of the Minister’s discretion.  To conclude, it is the Minister of Citizenship and Immigration who makes the decision, not the Minister of HRSDC.  HRSDC rather, offers an opinion.

If that is the case, then there’s a lot of time and money being spent on something to obtain from Service Canada something that is apparently just an “opinion.” While I appreciate that the decision to issue a visa is ultimately Citizenship and Immigration Canada’s (“CIC“), considering the amount of documentation that employers provide to Service Canada to obtain AEOs (and Labour Market Opinions), as well as the fact that Service Canada officers actually speak with the employer (something almost unheard of at CIC) to determine the genuineness of job offers, I think that there should be clear guidelines as to when CIC can overrule Service Canada on their area of expertise.  This is only logical considering that administrative law is based on the concept of specialized tribunals with expertise in their respective areas making decisions, and it is Service Canada which is trained to examine the  Canadian labour market and an employer’s capabilities.

Federal Skilled Trades Class to be Capped at 3,000 Applicants

As previously discussed here, Citizenship and Immigration Canada (“CIC“) will be introducing a new Federal Skilled Trades Class (“FSTC”), which will facilitate the immigration of certain skilled tradespersons in Canada.  The Government of Canada originally “announced” the creation of the FSTC in August through the publication of regulatory changes, however, CIC today released new information which will be relevant to prospective applicants.

The FSTC will be open to individuals with experience in the following National Occupation Classification (“NOC“) B occupational areas:

  • Industrial, Electrical and Construction Trades;
  • Maintenance and Equipment Operation Trades;
  • Supervisors and Technical Occupations in Natural Resources, Agriculture and Related Production;
  • Processing, Manufacturing and Utilities Supervisors and Central Control Operators;
  • Chefs and Cooks; and
  • Bakers and Butchers.

Applicants to the FSTC will be required to meet the following four minimum requirements:

  1. Be working in Canada, or possess a LMO-supported offer of employment from up to two employers in Canada of at least one year duration, or possess a Certificate of Qualification from a provincial or territorial Apprenticeship Authority;
  2. Meet the same minimum language threshold as required by the concurrently to be introduced new Federal Skilled Worker Class, namely a 7.0 on every language ability;
  3. Have twenty-four months of work experience (after qualification/certification in the country where the work was performed, where applicable) in the same skilled trade as which they are applying under in the last five years; and
  4. Have qualifications that satisfy employment requirements as described by the NOC, except for certification and licensing requirements.

The FSTC will be capped at 3,000 applications in its first year.

Individuals who are keenly anticipating the launch of the new Federal Skilled Worker Program (“FSWP“) should note that when the Government of Canada in August announced the creation of the FSTC, they did not indicate that the program would be capped.  The capping of the FSTC will presumably be done through Ministerial Instructions.  I strongly believe that at the same time that these Ministerial Instructions will be published officially capping the FSTC, concurrent Ministerial Instructions will also be published capping and limiting who can apply to the new FSWP.  Prospective applicants should be aware of this possibility while they prepare their FSWP applications.