Edited by Bill MacGregor and Lesley Love
Contents
- About Immigration Update @ Gowlings
- New National Recruiting Standards for Labour Market Opinion
Applications
- Wages for LMOs for Unionized Positions
- Regional Occupations List Program Ends
- Ontario PNP Expands
- OHIP Eligibility Changes Extend Coverage for Foreign
Workers
- Alberta Immigrant Nominee Program Expands
- Changes to E-LMO Program
- Croatian Citizens May Now Enter Canada without a Visa
- Tougher U.S. Entry Requirements at Land Ports of Entry
- Electronic System for Travel Authorization
- Practical Tips: Work Permit Extensions and the Traveling
Employee
About Immigration Update @ Gowlings
The ability to move personnel across borders and to recruit skilled workers from abroad is of increasing importance to many business operations. It is essential that companies and their personnel recognize and comply with applicable immigration laws. Immigration Update @ Gowlings, prepared by Gowlings' Immigration Practice Group, provides information on corporate immigration matters, including new developments and changes that may affect your ability to move personnel across borders. Gowlings' Immigration Practice Group offers a full range of immigration services and strategic solutions to clients. For example, we assist with executive transfers, and with obtaining business visitor status, work permits, temporary resident visas, permanent resident status and citizenship.
New National Recruiting Standards for Labour Market Opinion Applications
As previously reported in Special Bulletins, Service Canada introduced new national minimum recruitment requirements which apply to all Labour Market Opinion (LMO) applications made after January 1, 2009.
The requirements correspond to the skill level of the occupation under Canada's National Occupation Classification (NOC) system. The requirements are:
1. For NOC skill level 0 or A occupations (management occupations and occupations usually requiring a university degree), employers must in the 3 months prior to making the LMO application either (a) advertise on the national Job Bank for at least 14 calendar days; or (b) conduct similar recruitment activities consistent with the recruiting practices for the occupation.
2. For NOC B occupations (occupations usually requiring a college diploma or apprenticeship training), employers must: (a) advertise on the Job Bank for at least 14 calendar days in the 3 months prior to the application; and (b) the advertisement must specifically include the employer's name, business address and the wages being offered.
3. For NOC C and D occupations (under the Low-Skill Program), employers must in the 3 months prior to making the application: (a) advertise on the Job Bank for a minimum of 14 calendar days; (b) conduct similar recruitment activities consistent with the practice within the occupation; and (c) demonstrate reasonable ongoing recruitment efforts to recruit from communities that traditionally face barriers to employment.
Service Canada's Directives include a narrow list of specific situations where recruiting efforts are not required.
The Directives have been amended from time to time since January, and further amendments are likely.
It remains to be seen how Service Canada will ultimately interpret and apply the new recruiting requirements. An issue is whether Service Canada will insist on recruiting in all situations (except the narrow exemptions listed in the Directives), or if other positive factors (for example, job creation for Canadians) could be used to ground a positive LMO decision without have to show recruitment efforts.
Employers need to be aware of the new requirements, and should take steps to ensure that they meet the recruiting standards prior to seeking an LMO.
Announcement on New Recruitment Requirements for LMO Applications
Special Bulletin from Gowlings with More Details
Wages for LMOs for Unionized Positions
Effective March 31, 2009, employers seeking a LMO to hire a temporary foreign worker in a position in a unionized environment must offer the foreign worker the same wage rate as established under the collective bargaining agreement. Benefits must also be the same as those enjoyed by Canadian employees. Consequently, the amount that must be offered in wages may be more than the prevailing wage rate for that occupation in the geographic location of the position.
Wages for LMOs Sought for Unionized Positions
Regional Occupations List Program Ends
When Service Canada introduced the new recruiting guidelines for LMOs, it also announced the end of the Regional Occupations List Program. These lists were unique to each province, and identified "occupations under pressure" which were those in which there was a recognized labour shortage. Employers wishing to obtain an LMO to hire a foreign worker in a listed occupation only had to conduct minimum advertising as compared to the usual recruitment efforts expected by Service Canada. With the elimination of this Program, employers will be expected to demonstrate recruiting efforts as set out in the new recruiting directives discussed elsewhere in this newsletter.
Ontario PNP Expands
The Ontario Provincial Nominee Program has been renamed and expanded. Instead of narrowly focusing on twenty listed occupations, in the health, education, manufacturing and construction sectors, the new program, called Opportunities Ontario, may be available for any occupation under NOC skill level A, B or 0. Applicants must have at least two years of work experience in any occupation.
Investors in Ontario may now recruit employees to become permanent residents in Ontario under the General Category. Investments must create jobs for Ontarians and be endorsed by an Ontario Government Ministry. Under the old program, investors were required to invest $10 million or more in the province and create at least 25 permanent full time jobs. Opportunities Ontario has relaxed these requirements to a required investment of $3 million and the creation of 5 permanent full time jobs.
If an employer wishes to hire an international student, the position must be in a skilled occupation (NOC A, B or 0). However, the occupation no longer has to be related to the student's field of study in Canada. International students are not required to have any previous work experience under the new program. In addition, their publicly funded Canadian university or college can be anywhere in Canada, not only Ontario.
Being nominated under the Opportunities Ontario Provincial Nominee Program entitles individuals to priority processing for Canadian permanent residency.
It is expected that the new program will target approximately 1,000 nominees.
Backgrounder on Changes to Ontario PNP
OHIP Eligibility Changes Extend Coverage for Foreign Workers
OHIP rules have recently been changed for foreign workers and their families in Ontario. Foreign workers will be eligible if they hold a work permit valid for at least six months and also have a formal agreement in place to work full-time for an employer situated in Ontario. The agreement should set out the employer's name, the occupation, and that the foreign worker will be working for at least six consecutive months. Accompanying spouses and children are also eligible.
This will allow holders of open work permits to obtain OHIP coverage. Previously, open work permit holders were not eligible for OHIP coverage due to the fact that their work permits did not state the name of a Canadian employer and did not set out the occupation. Now, temporary foreign workers or foreign graduates who are in Ontario with valid open work permits can obtain OHIP coverage.
Alberta Immigrant Nominee Program Expands
The AINP now has an expanded Strategic Recruitment Stream. This stream is split into three sub-categories: the Compulsory Trades Category, the Engineering Occupations Category, and the U.S. Visa Holder Category.
The Compulsory Trades Category is available for eligible foreign nationals who have completed the Qualifications Certificate Program with Alberta Apprenticeship and Industry Training. The applicant must show that they are either working for an Alberta employer in their trade or have worked in the past two years with an Alberta employer in their trade.
The Engineering Occupations Category may be available to applicants who have education and training as an engineer, designer or drafter. The applicant must currently be working in Alberta or have worked within the last two years in Alberta for an established Alberta Engineering, Procurement and Construction (EPC) company and/or an Alberta company that is a member of the Consulting Engineers of Alberta.
For the U.S. Visa Holder Category, an applicant must be currently employed in the United States on an H-1B, H-1C (a work visa for nurses) or E-3 (a work visa available to Australian citizens) visa and must have been working there for at least one year. The U.S. experience must be gained in an occupation listed in the AINP's Occupations Under Pressure List. This list will be revised from time to time as Alberta's labour market and needs change.
AINP's Strategic Recruitment Stream
Changes to E-LMO Program
The E-LMO Program is only available to B.C. and Alberta employers seeking LMOs to hire foreign nationals in one of the 33 occupations listed under the pilot project. Those occupations are viewed as being in short supply in those two provinces. The application process has been changed somewhat. Employers applying under the program are now required to submit evidence of recruitment efforts and must complete a new questionnaire when they apply. The new requirements will assist Service Canada in determining whether the employer has a legitimate need for temporary foreign workers.
E-LMO and New Recruitment Requirements
List of Occupations under the E-LMO Program
Croatian Citizens May Now Enter Canada without a Visa
Immigration Canada recently announced that citizens of Croatia no longer require Temporary Resident Visas to travel to Canada. This will facilitate the entry of Croatians to Canada.
Tougher U.S. Entry Requirements at Land Ports of Entry
Starting June 1, 2009 the U.S. will introduce tighter rules for Canadian and U.S. citizens traveling by land into the U.S. As of that date, such travelers must ensure that they have acceptable documentation to enter the U.S. by land. Passports or NEXUS cards are acceptable. In addition, for entry by land or water (but not by air) the U.S. Western Hemisphere Travel Initiative (WHTI) allows Canadians to use an enhanced driver's license, which Canadian provinces have been, or will be, introducing. Non-compliant driver's licenses will not be acceptable as of June 1, 2009.
New Documentary Requirements for Canadians Traveling to the United States
Electronic System for Travel Authorization
The Electronic System for Travel Authorization (ESTA) became mandatory for all Visa Waiver Program (VWP) travellers to the United States on January 12, 2009. Prior to travelling to the U.S. for business or pleasure, Visa Waiver travellers will be required to obtain approval by filling out an online application to be assessed by the Department of Homeland Security (DHS). Upon DHS approval, an ESTA authorization is valid for multiple entries to the U.S. for a period of up to two years, or until the traveller's passport expires, whichever comes first. There are currently 35 countries in the Visa Waiver Program.
When an employee is planning travel into or through the U.S., it is imperative to determine if the employee will require ESTA authorization well in advance of the expected date of travel. Registration under the program must be completed no later than 72 hours before travel.
Practical Tips: Work Permit Extensions and the Traveling Employee
Employers and human resources managers in Canada need to ensure that foreign workers always maintain valid status to work in Canada. To that end, work permit renewals should be filed in a timely manner in order to get a new work permit back from the Case Processing Centre (CPC) in Vegreville, Alberta prior to the end date of the employee's current work permit. Given that current processing times are in excess of 60 days (and we note that processing times for extensions are often longer than that) best practices dictate filing extension applications well in advance of the end date.
But what if the new work permit is not received prior to the end date of the current work permit?
As long as the extension application was submitted to the CPC prior to the expiry of the current document, the foreign employee may continue to work under the terms and conditions of the expired work permit until a decision on the extension application is received. This is referred to as having "implied status".
However, what happens to this implied status if the foreign employee leaves Canada after the expiry of the work permit but before a decision on the extension has been reached? Immigration Canada recently issued a bulletin clarifying this situation. A foreign worker loses implied status if they travel outside Canada during this period. This means that the foreign worker cannot work upon their return to Canada, unless they can apply for and are granted a new work permit at the port of entry.
A foreign employee who leaves Canada in these circumstances can re-enter Canada as a temporary resident but only if they are from a visitor visa exempt country or if they have a multiple entry visa. If they are allowed back in as a visitor, they may not resume work in Canada until their application for renewal has been granted by the CPC.
Alternatively, in certain circumstances, a border officer may grant a new work permit to the foreign employee upon re-entry to Canada, if the Regulations allow. Employees seeking a new work permit in these circumstances must be provided with an application package to support the request, and should also be given proof that an extension application had been filed at CPC Vegreville. CPC Vegreville does not record extension applications upon receipt. Therefore, there will be no computer record available to the border officer to confirm whether or not an extension application was filed in a timely manner.
Depending on the background of the foreign national and the circumstances of the situation, it may be necessary to postpone business travel outside Canada until the new work permit is received from CPC Vegreville.
We suggest that legal advice be obtained to assess situations where foreign national workers on implied status may be required to travel outside Canada, and to prepare an application package to support the re-entry of such personnel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
