Immigration Update 2013


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Immigration Update 2013

  1. 1. IMMIGRATION UPDATE 2013 Evelyn L. Ackah, Managing Lawyer Robyn Smith, Associate Lawyer October 10, 2013
  2. 2. Immigration Update • International recruitment becoming more common • Canadian economy requires more skilled workers • HR the first to know about potential immigration needs • How to work successfully/efficiently with external immigration law providers 3
  4. 4. Canadian Immigration Law • Governed by web of statutes, regulations, policies and programs • Significant discretion of immigration officers leads to inconsistencies • Post 9-11 much tougher entry and increased security concerns • The new normal is “constant change” • Employers must be proactive – not reactive 5
  5. 5. Canadian Work Permit Rules All Foreign nationals need valid authorization to work in Canada – you must ask: a) Is a work permit required? (The answer is always “yes” if the person is being recruited to work in Canada) b)If yes, is there an applicable work permit category under the Immigration and Refugee Protection Act (“IRPA”), a treaty (e.g. NAFTA, GATS), or a special immigration program? c) If not, a Service Canada (formerly HRSDC) Labour Market Opinion (LMO) must first be obtained 6
  6. 6. Immigration and Refugee Protection Act (IRPA) • Work defined as: “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market” • Under Canadian immigration law, foreign nationals are prohibited from engaging in work or assuming employment without first obtaining a work permit (there are limited exceptions to this rule) 7
  7. 7. Using NAFTA • The preferred tool to facilitate cross-border movement between Canada and the U.S. • Used for temporary entry – not permanent • Must be a U.S. or Mexican citizen • Three main categories: 1) business visitors 2) professionals 3) intra-company transferees 8
  8. 8. NAFTA: Business Visitors • Intended for short-term entry – meetings, training, sales activity • Should ensure employees always have employer letter when crossing border • Remuneration must be paid from home country • Cannot be engaged in “work” activity • Must ensure employee is prepped before attending at port of entry 9
  9. 9. NAFTA: Professionals • Renewable indefinitely (recently changed to up to 3 year work permits) • Must meet educational or experience criteria • Must be exercising the skills of the profession • Must have an offer or contract • NAFTA lists 66+ professions including Engineer, Geophysicists, Systems Analyst, Scientific Technician – “Manager” or “Director” are not eligible positions 10
  10. 10. NAFTA Intra-Company Transferees • For employees at “Executive” or “Managerial” level, or who have “Specialized Knowledge” • Must have worked 12 consecutive months in preceding 3 years for the foreign related entity • Must prove proper corporate affiliation of entities • Time caps: Up to 5 years for specialized knowledge workers and 7 years for managers/executives • Non-NAFTA Intra-Company Transfer category for those who are not American or Mexican 11
  11. 11. PART II • Labour Market Opinions • Recent Changes in the Law 12
  12. 12. The New TFW Regulations • “New” Immigration regulations became effective as of April 1, 2011 • Changes focus on “compliance” • Strengthening protection for TFWs and limiting the duration of temporary employment in Canada • Minimizing the potential for TFW exploitation and implementing stricter employer monitoring mechanisms 13
  13. 13. Labour Market Opinion Based Work Permits • To increase employer monitoring, HRSDC/SC/CIC have increased data collection, closer monitoring of TFW conditions, capped work terms • Priorities: – Employer Information – Genuineness – Compliance – Cumulative Duration 14
  14. 14. LMO Based Work Permits Employer Information •Database for history of each employer (CIC/Service Canada/CBSA) •Signed statement that employer will abide by Program requirements •Copy of business license/permit; proof of legitimate existence as an active business required for first-time LMO applications 15
  15. 15. LMO Based Work Permit Genuineness • • • • • Reg. 200(5) – sets out criteria for examining the genuineness of a job offer: The employer must be actively engaged in the business in respect of which the offer is made The offer must be consistent with the reasonable employment needs of the employer The employer must be reasonably able to fulfill the terms of the offer and The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work 16
  16. 16. LMO Based Work Permits Genuineness • Increased documentary requirements assist in determining employer genuineness • One area affected is how positions are now advertised: – Depending on National Occupation Classification Code (NOC), minimum 4 weeks posted on Canada Job Bank and two additional advertising methods – three job postings in total – Particular wording regarding NOC descriptions – Be careful with “Tailoring” 17
  17. 17. LMO Based Work Permits Compliance • Increased enforcement of regulations and enhanced monitoring • Employers must demonstrate past compliance by proving they met substantially the same terms and conditions of employment as set out in previous LMO 18
  18. 18. LMO Based Work Permits Compliance • Reg. 200(1): During the 2 years prior to the date the application was received, the employer must have substantially complied with the wages, working conditions, and occupation set out in the original offer of employment for each foreign national employed by the employer • This is retroactive going back two years! 19
  19. 19. LMO Based Work Permits Compliance • Some employers may have to undergo Employer Compliance Review (ECR) • With every new LMO application, HRSDC-SC has authority to review past compliance for every TFW employed in the past 2 years • If found not to have met compliance requirements, must provide “reasonable justifications” 20
  20. 20. LMO Based Work Permits Compliance – Reasonable Justifications • a change in federal or provincial law, or collective agreement • a dramatic change in economic conditions that directly affected the business, provided that the measures were not directed disproportionately at foreign nationals • an error in interpretation made in good faith (if the employer subsequently provided compensation or made significant attempts to correct the error) • an unintentional accounting or administrative error (if the employer subsequently provided compensation or made significant attempts to correct the error) or circumstances similar to those set out above. 21
  21. 21. LMO Based Work Permits Compliance – “Bad Employer” List • Public non-compliance list maintained by CIC: • Posted on CIC website • Includes names-addresses of employers found non-compliant by either CIC or Service Canada • Employer will be notified of non-compliance first • Include the date on which the determination of non-compliance was made 22
  22. 22. LMO Based Work Permits Cumulative Duration – “Cap” • Reg. 200(4)(f) – an officer shall refuse to issue a work permit where the foreign national has accumulated one or more periods of work totalling 4 years unless: • A period of 48 months has elapsed since the date the TFW accumulated 4 years of work • The work would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents, or • The foreign national intends to perform work pursuant to an international agreement 23
  23. 23. LMO Based Work Permits Cap Exceptions • TFWs in Managerial (NOC 0) and professional (NOC A) occupations • TFWs who have applied for PR and received a positive assessment in accordance with: • Provincial Nominee Program certificate if a provincial nominee • Positive selection decision under Federal Skilled Worker Class • Positive selection under Canadian Experience Class 24
  24. 24. LMO Based Work Permits Cap Exceptions • TFWs who are employed under International agreements such as NAFTA or other agreements • TFWs who are LMO exempt – including: • Spouses and common law partners of international grads in the Post-Grad Work Permit program • Entrepreneurs, Intra-company transferees, researchers and academics 25
  25. 25. Labour Market Opinions Advertising – Skilled positions NOC 0, A & B •Posting on Canada Job Bank or conduct recruitment activities consistent with industry – posting in three different venues •If using a recruiter, be sure they are in compliance with Service Alberta’s Employment Agency Licensing requirements under the Fair Trading Act and the Employment Agency Business Licencing Regulation •Minimum 4 weeks for advertising within 3 months of LMO application •Make sure advertising is consistent with LMO application 26
  26. 26. Labour Market Opinions Description of duties • Recommended attaching company job description to ensure consistency • Check the NOC job description to ensure no inconsistencies – may want to list NOC code to ensure Service Canada looks at same NOC 27
  27. 27. Labour Market Opinions Educational Requirements • Critical to ensure that the foreign workers meet educational and experience requirements listed on LMO and advertisements • If willing to accept work experience in lieu of education, this must be clearly specified and noted on the LMO and in the advertisements 28
  28. 28. Labour Market Opinions Work Experience Requirements • Ensure that description of any specialized work experience that is important for the position is included • Also include any occupational designations such as CA, CMA, CGA, RN, P. Eng • This information should mirror advertising conducted 29
  29. 29. Labour Market Opinions Wages & Benefits • Generally must be equal to or higher than the prevailing wage – (cannot offer wages below rates paid to Canadians in the same occupation and region) • Also must include holiday pay as a percentage or number of days – confirm provincial employment standards • This information should mirror advertising conducted 30
  30. 30. ALBERTA TRADES AND LMO Applying through the Alberta Occupation-Specific Pilot: • If employers want to hire a journeyperson level carpenter or millwright, the worker will require an approval letter from Alberta Apprenticeship and Industry Training (AIT) for the Alberta Qualification Certificate Program before being eligible to participate in the pilot • TFWs coming to Alberta who are experienced tradespeople can obtain a Qualification Certificate – Work Experience Application Guide for Temporary Foreign Workers and the application form. Additional information about the certification process is available on the Alberta’s Trade Certification Process information sheet • Applying through the Labour Market Opinion (LMO) process: Employers who don’t require a journeyperson level carpenter or millwright are not required to participate in the pilot but may instead hire a worker under the LMO process 31
  31. 31. Bridging Open Work Permits • Allows for work permit extensions for those who have been approved for PR by way of CEC, AINP and Federal Skilled Worker (the PR applications under the Economic Class), so they can maintain their valid work permit status while the PR is in process • The Bridging Open Work Permit is not available to those seeking PR under the spousal or common law class or under the low-skilled category 32
  32. 32. Implied Status and Related Issues What does implied status mean? If your work permit expires after you have submitted your application for an extension of your authorization to remain in Canada, you will be considered in status as a temporary resident (visitor) until a decision is made on the application. This is known as implied status. YOU CANNOT LEAVE CANADA WHILE UNDER IMPLIED STATUS! What can be impacted by it: SIN cards – As soon as a decision has been rendered by CIC authorizing the employee to continue to work in Canada, the employer must verify the new immigration document and the expiry date. The employer must also inform the employee to apply with his or her new immigration document to Service Canada for the SIN record to be updated with the new expiry date Health coverage – A designation by CIC of “implied” status does not qualify you to maintain your AHCIP coverage. A new Canada entry document is required for your coverage to continue. While waiting in Alberta for a new work*, study* or visitor* permit, or confirmation of permanent residency, you may be eligible for a one time only temporary extension of health care insurance coverage for 3 months. Drivers license – If a TFW has an Alberta Drivers Licence that is about to expire (note: the expiry date is the driver’s date of birth), they must go to an Alberta Registries office and present a copy of the Citizenship and Immigration document that they have submitted to either extend their Work Permit or to obtain permanent Residency. The Alberta Registries staff will then issue the TFW a new drivers licence that expires on their next birthday. The TFW should do this at least one month in advance of the expiry date 33
  33. 33. Federal-Provincial-Territorial Agreements • Each province and territory has signed as immigration agreement with CIC • Provincial Nominee agreements: BC, AB, SK, MB, ON, NB, PEI, NFLD, NWT, YK • Increase admission of PNs to 42-45,000 between 2013 – 2014 • Focus on regional needs, LMO-exempt categories 34
  34. 34. AINP to Permanent Residence Engineering Stream • Must be living in the province and intend to live permanently in Alberta • Must provide evidence of related educationtraining as an engineer, designer or drafter • Must be currently working or have worked within the last two years in Alberta for recognized, reputable and established Alberta Engineering, Procurement and Construction company and/or a company that is member of the Consulting Engineers of Alberta 35
  35. 35. AINP to Permanent Residence Engineering Stream • Specific NOC codes are listed on the AINP website that advise on whether a letter of no objection is required from APEGA • The Employee is self sponsoring in this stream • The challenge may be if the employee is qualified, but they may not be working exactly in an engineering capacity – perhaps management? Review of position description is very important in this instance 36
  36. 36. AINP to Permanent Residence Employer Driven Stream • For Alberta employers who want to retain foreign workers on a permanent, full-time basis • Categories: – Skilled Worker Category – International Graduate Category – Semi-Skilled Category Bridging Open Work Permits now available for those waiting to complete PR process 37
  37. 37. Canadian Experience Class - PR The Canadian Experience Class (“CEC”) is a PR category for individuals with experience in Canada. It was developed for TFWs or graduates with Canadian work experience who: •are familiar with Canadian society and Canada’s job market •have knowledge of English or French and •have additional abilities that assist them in making a successful transition from temporary to PR in Canada. The CEC is prescribed as a class of persons who may become PR on the basis of their Canadian experience and who: •intend to reside in a province or territory other than Quebec; •maintained temporary resident status during their qualifying period of work experience as well as during any period of full-time study or training in Canada. 38
  38. 38. Canadian Experience Class – PR There are two streams available under the CEC: 1. Temporary Foreign Worker •Under this stream, an applicant must have acquired, in Canada, within the 36 months before the date the application is made, at least 24 months of full-time work experience, or the equivalent in part-time work experience, in a NOC type 0, A or B occupation (i.e., managerial, professional, or skilled and technical) 2. Post-Graduation Stream An applicant must have: •completed a required program of study in Canada and obtained a Canadian educational credential (e.g., degree, diploma, or certificate) •been enrolled full-time in this program of study or training for two years •acquired, in Canada, at least 12 months of full-time work experience, or the equivalent in part-time work experience in a NOC type 0, or level A or B occupation, within the 24 months before the date the application is made •Under both streams applicants must demonstrate that they have met the minimum language requirements and provide the results of their English or French language test from a designated language testing agency 39
  39. 39. Labour Market Opinion Process Flowchart When the Candidate arrives in Canada, NOVA sends us a copy of their WP and Ackah law does a Reporting Letter to NOVA and we keep track of the WP expiry date As soon as we receive the fax confirming a Positive LMO, we send the draft Work Permit application to NOVA for review and finalization, and then on toe the Candidate so they can either submit it to the Consulate in their home country OR book flights and travel to a Port of Entry In anticipation of a Positive LMO being received in about 8-12 weeks, Ackah Law drafts a Work Permit application which may be a Port of Entry OR Consular application, depending on which country the Candidate is coming from Ackah Law receives an email from NOVA saying that NOVA wishes to obtain an LMO for a particular candidate and NOVA indicates the appropriate NOC Code, Job Title and Timeline for when they hope the candidate can start work in Canada Ackah Law doublechecks that the NOC Code selected by NOVA is appropriate, and then asks NOVA to send over its Job Ads to be checked against the Job Description Because NOVA has usually already posted the Job Ads by the time Ackah becomes aware of the need for an LMO, Ackah will advise if the Job Ads need any revisions in order to comply with Service Canada’s Recruitment and Advertising requirements. (the NOVA Ads usually do not need revision) Ackah then drafts the entire LMO package which includes: 1. Index of Documents When 4 full weeks of advertising are complete, we submit the LMO application to Service Canada (usually the Edmonton Office) 2. Our submission letter to Service Canada 3. The EMP5517, LMO Application Form with Schedule A Appointment of Representative form 4. NOVA’s employer support letter 5.Offer of Employment – NOVA-Candidate 6. Proof of Recruitment Efforts 7. Candidates CV, Position Description and University Degrees/Qualifications 8. Copy of Candidate’s Passport Photo/Bio Page 9. Corporate Info about NOVA and the $275 LMO Processing Fee sheet Within a week of receiving it Service Canada faxes Ackah Law a “Confirmation of Receipt” Ackah law then send the draft Index, Submission Letter, Employer Support Letter, EMP 5517 and Appointment of Representative, NOVA’s Employer Support letter for thorough review and finalization. NOVA then sends it back to Ackah Law and we wait for 4 full weeks of advertising to complete 40
  40. 40. Current Processing Times For Work Permits If processed within Canada •WP with new employer – 54 days (paper application) •41 days (online application) •CIC is currently processing WP applications that were submitted in August 2013 For LMOs •On average across the country is 8 weeks because they process files “virtually” – (for example: Service Canada office in one part of Canada can process Alberta LMOs to share workload if necessary) •Call Service Canada’s Employer Contact Centre at 1-800-367-5693 for current processing times For Permanent Residency •CEC – average of 18 months •Provincial Nominees – (Alberta Immigrant Nominee Program) – anywhere from 12 months to 44 months, depending on where the Canadian visa office is located See: •Federal Skilled Worker – anywhere from 12 months to 28 months, depending on where the Canadian visa office is located See: 41
  42. 42. Practical Pointers Before Submitting Immigration Application: 1. Be proactive and consider immigration issues early 2. Properly assess person and purpose of entry and then develop appropriate immigration strategy and supporting documents (legal counsel can assist) 3. Consider whether mail-in application more prudent versus Port of Entry application 4. Choose best Port of Entry (legal counsel can assist) 43
  43. 43. Practical Pointers 5. Watch out for: – ineligibility due to criminal convictions or prior refusals – Ineligibility due to medical inadmissibility – entry visa requirements – immigration medical requirements – accompanying dependants – changes in laws, policies or procedures 44
  44. 44. Practical Pointers At the Border 1. Educate the person crossing the border 2. Know the purpose of entry and your itinerary 3. Always be courteous with immigration officers – they have a lot of power and discretion 4. Always be honest – this avoids potential misrepresentations 45
  45. 45. Practical Pointers 5. Always travel with proper supporting documentation and package (this includes Business Visitors) 6. Try to travel during regular business hours. Then help can be contacted if there are problems 7. Never insist on entry if problems occur. May be allowed to withdraw the application, this is better than a refusal 46
  46. 46. Summary • Employers need to comply with immigration laws when recruiting foreign nationals • Immigration issues must be carefully reviewed and proper application materials prepared to ensure initial success – much harder to fix a refusal • BE PROACTIVE: obtain proper advice first • Latest developments focus on improving processes and decreasing timelines • Properly utilized, immigration solutions may be used to address labour needs and as part of overall human resources strategy 47
  47. 47. Why is immigration planningcompliance important • • • • • • Denial of service (work permits/LMOs) Loss of valuable employees (4 year cap) Damage to image (“bad employer” list) Costly-time consuming audits Exclusion-removals for foreign nationals Fines for employers (unauthorized work) 48
  48. 48. Focus on Compliance • Ensure all work is “authorized” and documented • Know which of your employees are TFWs – (Tip: Internal SIN audits every 4 months) • Ensure LMO and WP conditions are met at all times (especially wage and geographical conditions) • Seek change of conditions where necessary in advance (i.e. geographical change, change in employer name, job title) 49
  49. 49. Focus on Compliance • Employers must establish a culture of immigration compliance by: – Developing, implementing and enforcing immigration compliance policies – Be clear who has ownership over immigration compliance (ideally two or three people) – Clearly communicate immigration compliance policies and expectations to all employees; and – Maintain proper records and conduct frequent immigration audits to ensure compliance across the corporate entity 50
  50. 50. Focus on Compliance • Obtain extensions for work permits well in advance – we recommend at least 6 months in advance • Ensure compliance with special rules re: external recruiters • Keep up to date and accurate records • Be aware of how provincial legislation may relate to TFWs (i.e. OH&S, Employment Standards, etc. 51
  51. 51. Create an Immigration Program • Comprehensive Immigration Policy and Procedures • Be clear who has ownership over immigration compliance (ideally one person) • Accurate and up to date record keeping • In house training for managers, recruitment personnel, HR and TFWs • Key personnel are up to date on regulatory and policy changes 52
  52. 52. What records should be kept? • Wage and benefit information • Each TFW’s name, address, telephone number, job title and the location where they do most of their work • Expenses incurred (directly or indirectly) during a recruiting process (including proof of who was paid) • Copy of LMO and WP • All contracts-agreements entered into with foreign workers and external recruiters – especially with new legislation • Record keeping must meet employment standards minimum requirements 53
  53. 53. Proposed New Compliance Rules • There are anticipated legislative changes coming that will affect employers. • If passed, Federal officials will now be allowed to review foreign worker applications and files up to 6 years after the date of their employment termination – we recommend employers keep these records for a full 7 years. 54
  55. 55. Case Studies An application for a work permit into Canada is refused as it turns out the employee has a criminal conviction: •May be eligible for Deemed Rehabilitation if only one conviction that took place, and more than five or ten years has passed since the conviction – this could allow entry to Canada right at the port of entry •If not eligible because there is more than one conviction and it is recent, you will need to apply for a Temporary Resident Permit at a Canadian Consulate and you may also want to apply for a permanent Criminal Rehabilitation at a Canadian Consulate 56
  56. 56. Case Studies Applied for work permit too late and it has expired – what do you do? Restoration of Status - TFW may seek restoration within 90 days after status as a worker has been lost, because TFW failed to comply with one or more of the following conditions: •Remained in Canada longer than the period authorized for their stay (but not longer than 90 days) •Changed employers or type of work before obtaining a new work permit TFW may still be eligible for restoration if they continue to meet the initial requirements for their stay and have not failed to comply with other conditions imposed 57
  57. 57. Case Studies Common law spouse or same-sex spouse •In Canada we recognized common law/same – sex spouses as dependents that are entitled to a spousal open work permit or visitor record – not in the US •However to prove common-law, will need a statutory declaration and supporting documents like joint bank accounts, benefits statements, mortgage papers showing joint title 58
  58. 58. THANK YOU! 59
  59. 59. QUESTIONS? Ackah Business Immigration Law (403) 452-9515