on record JULY 2015 BUSINESS IMMIGRATION

Transcription

1 on record JULY 2015 BUSINESS IMMIGRATION Recent Changes to the Citizenship Act Express Entry Program Recently Launched with Employers in Mind The New Offer of Employment Form LMIA Application Requirements LMIA Stream for High Wage Positions: A Faster Process

2 2400, 525-8th Avenue SW Calgary, AB T2P 1G1 Phone: Fax: On Record Contents: See other BD&P articles under Publications on our web site 1 Recent Changes to the Citizenship Act 3 Express Entry Program Recently Launched with Employers in Mind 4 The New Offer of Employment Form 5 LMIA Application Requirements 6 LMIA Stream for High Wage Positions: A Faster Process BUSINESS IMMIGRATION, EDITOR-IN-CHIEF Rita R. Tripathy rrt@bdplaw.com BUSINESS IMMIGRATION, MANAGING EDITOR Rhonda G. Wishart rwishart@bdplaw.com GENERAL NOTICE On Record is published by BD&P to provide our clients with timely information as a value-added service. The articles contained here should not be considered as legal advice due to their general nature. Please contact the authors, or other members of our Business Immigration team directly for more detailed information or specific professional advice. Business Immigration Professionals Lawyers Rita R. Tripathy... rrt@bdplaw.com Jonathan Selnes... jselnes@bdplaw.com Paralegal Clara Liu... cliu@bdplaw.com

3 IMMIGRATION PAGE 1 Recent Changes to the Citizenship Act By Fraser Wayne, Summer Research Student Citizenship and Immigration Canada (CIC) has introduced significant changes to Citizenship Act 1 as of June 11, The policy behind the changes is the Canadian government s desire to ensure that citizenship applicants maintain strong ties to Canada. Critics describe the new Canadian Citizenship as being harder to obtain and easier to lose as the revocation rules for citizenship have also been changed. This article highlights a few of the key changes to the Citizenship Act.

4 IMMIGRATION PAGE 2 Not only does the requirement restrict mobility rights, but it draws a distinction between natural born and naturalized Canadian citizens; the latter group being at risk of losing their citizenship if they leave Canada despite having a bona fide intention to reside in Canada at the time of their application. Residency Requirement Clarified and Increased Prior to these reforms the term residency was not defined as physical presence and citizenship judges were authorized to grant citizenship based on the arbitrary test of establishment in Canada. The new residency requirement addresses this ambiguity by focusing on physical presence within Canada. Applicants are required to live in Canada for 4 out of 6 years (1,460 days) prior to the date of application. This includes 183 days of physical presence in Canada per year in 4 out of the 6 years. The physical presence requirement carries tax implications as applicants must file at least four Canadian tax returns during the relevant application period. Additionally, only time spent in Canada as a permanent resident can be counted toward residency for citizenship. The physical presence requirement is in line with the government s goal to add value to the Canadian citizenship by cutting down on the number of people who hold passports for travel purposes or consular assistance with no real connection to Canada. However, the strict physical presence test may prevent worthy applicants with significant ties to Canada from ever becoming citizens. Permanent residents will also need to prove intent to reside in Canada. The pragmatic underpinnings of this provision remain unclear, but it would be safe to assume applicants will need to demonstrate stronger ties to Canada and an intention to make Canada their home. Applicants who declare intent to reside in Canada without actually doing so after attaining citizenship may face misrepresentation allegations that could jeopardize their citizenship status. It will be interesting to see if this requirement withstands constitutional scrutiny. Not only does the requirement restrict mobility rights, but it draws a distinction between natural born and naturalized Canadian citizens; the latter group being at risk of losing their citizenship if they leave Canada despite having a bona fide intention to reside in Canada at the time of their application. Language/Knowledge Requirements The new language and knowledge requirements are controversial. The age bracket for applicants required to pass the knowledge and language tests is expanded from to Interpreters are no longer allowed to assist applicants on the tests. Knowledge of Canadian values, norms and responsibilities ideally correlates with civic participation and economic success. Research studies also indicate that the ability to communicate in one of the official languages is a determining factor in the success of new citizens. However, one has to wonder why interpreters are no longer allowed to assist applicants on the knowledge test. Language competency required to pass a Canadian knowledge test is quite different than language competency required to work and live in Canada. If the goal is to ensure that applicants have the ability to become contributing members of society, then this requirement seems overly burdening. The age expansion for testing is arguably arbitrary; particularly as it extends down to include minors. Having a 14 year old take the test could result in a situation where a minor (who fails the test) has to remain a permanent resident while his/ her parents become citizens. This could lead to family separation ramifications, especially if the minor child gets in trouble before turning 18. Revoking Citizenship Previously, revocation of citizenship was limited to naturalized citizens who acquired their citizenship by fraud or misrepresentation. The reforms aim to expand these limits by giving the government the power to strip citizenship from dual citizens for acts against Canada. 2 These acts include terrorism, treason, spying and membership with an armed force engaged in conflict with Canada. Revocations will either be made by the Citizenship and Immigration Minister or the Federal Court depending on the complexity of the case. This means that some revocation decisions will not afford the deprived citizen a live hearing or an opportunity to appeal. The changes are intended to protect the safety and security of Canadians. However, the fact that naturalized citizens are subject to exile while Canadian born citizens are not is bound to be controversial. Other Notable Changes The Citizenship Act changes specify that only regulated and licensed lawyers or immigration consultants can assist with citizenship applications for a fee. The fines and penalties for fraud and assisting in fraud have also been significantly increased. Domestic and/or foreign criminal charges and convictions will prevent applicants from obtaining citizenship. Foreign criminal charges and convictions were not previously a bar to obtaining citizenship. The amendments grant citizenship to lost Canadians and their first generation of children born abroad. Lost Canadians are those who were born before 1947 and do not have citizenship due to changes in the citizenship laws. Footnotes 1 Citizenship Act, RSC 1985, c C-29 2 Susana Mas, New Citizenship Rules Target Fraud, Foreign Terrorism, CBC News (3 June 2015)

5 IMMIGRATION PAGE 3 Express Entry Program Recently Launched with Employers in Mind By James Delaney, Summer Research Student In January 2015, Citizenship and Immigration Canada rolled out the highly anticipated Express Entry program. Express Entry is a new application management program for permanent residence applications which is designed to meet the needs of employers, foreign nationals and Canada s own macroeconomic goals. The idea is to fast-track applicants whose skill profile, work experience and education match the needs of Canadian employers. So far the program has experienced a slow start, and certain concerns about privacy and overbroad ministerial discretion remain, but the numbers show that the Ministry is certainly willing to adjust and tweak the program over time. How it Works To be eligible for Express Entry, foreign nationals have to first meet the criteria of one of three federal immigration programs: the Federal Skilled Worker Program, the Federal Skilled Trades Program or the Canadian Experience Class. Secondly, once their information is entered into the Express Entry database, foreign national applicants are awarded a score out of 1200 according to a formula. The categories for the scoring are set out in the following grey box. Finally, the Minister of Citizenship & Immigration ( the Minister ) chooses a score every month and all applicants with a score higher than the one chosen by the Minister are sent an invitation to apply ( ITA ). The expectation A + B + C + D = score/1200 A: core human capital = score/500 B: spouse, if applicable = score/40 C: skill transferability = score/100 D: additional points = score/600 Note: if the applicant has a spouse, then A is scored out of 460 so as not to disadvantage single applicants. is that the average points required to receive an ITA will range between 350 and 450 points. After the ITA is sent out and the foreign national applies, Citizenship and Immigration promises to complete the application within six months. If an application sits in the Express Entry pool for 12 months without receiving an ITA, the applicant has to resubmit his/her profile. Crucially, half of the 1200 points can only come from either a job offer with a positive labour market impact assessment or a provincial nomination these factors make up the additional points category. Certainly, having a job offer or provincial nomination can make the difference between being given an ITA or having to wait.

6 IMMIGRATION PAGE 4 Slow Start Numbers-Wise Last November, Citizenship and Immigration announced that Canada would welcome more than 260,000 new permanent residents in In the first 5 months of Express Entry, however, there have been only a little over 10,000 successful applicants through the new program. Extrapolating, it looks like Express Entry is on track to cover approximately 10% of the total number of successful applications for permanent residency this year. These numbers demonstrate that for most foreign nationals this program may not offer improvements on the old system. Still, for applicants with a job offer, the program may be more promising as a job offer in addition to a strong work experience, language and educational profile can certainly be sufficient to secure an invitation to apply. For employers, this should facilitate permanent residency for their workers. It is also important to note that there may be a back log as the new program is being implemented. But an Upwards Trend It is also worth noting that Citizenship and Immigration has been lowering the bar slowly and surely, and in March the first ITAs went out to applicants who did not have job offers. Until then the points required to receive an ITA were greater than 600, making a job offer or provincial nomination necessary. In March, Citizenship and Immigration lowered the bar to 480 points, making it possible to receive the ITA on a strong human capital profile alone. Be Prepared for Invitation Once an individual receives an invitation, there is a 60-day requirement to submit a significant number of documents. Everything that has been listed as part of an individual s profile will become a part of the required document checklist. It is highly recommended that the documents are completed at the time of the application. Currently a completeness check of the documents is taking approximately one to two months. The goal is a 10-day review time. Concluding Thoughts Express Entry is a promising program for employees. Employees who have a job offer with a positive labour market impact assessment and good work experience profiles are much more likely to receive an invitation to apply for permanent residency. In addition, shorter wait times are anticipated. And if the Ministry continues to tweak the minimum number of points, foreign nationals looking to acquire permanent residency status even if they do not have an existing job offer or a provincial nomination, may be encouraged to apply. From an employer s perspective, it should be noted that once an employee has permanent residence, the employee is no longer obligated to work with the same employer. The New Offer of Employment Form By Fraser Wayne, Summer Research Student The International Mobility Program (IMP) has undergone significant changes over the last year. Further changes are anticipated and it is critical to be aware of the ongoing modifications that will affect practice and policy. Under Canada s Temporary Foreign Worker Program (TFWP), foreign workers may be required to obtain Labour Market Impact Assessment (LMIA) work permits. The IMP encompasses all foreign workers who are LMIA exempt. However, being LMIA exempt does not mean that you are exempt from obtaining a work permit. In fact, all LMIA exempt applicants must still obtain a valid work permit to legally work in Canada. In order to enhance compliance monitoring systems for employers that are employing foreign workers under the IMP, Citizenship and Immigration Canada (CIC) implemented major reforms that came into effect on February 21, These reforms impose more restrictions and higher standards on employers hiring through the LMIA exempt process. One of the additional requirements is the Offer of Employment Form (IMM5802) (the Form ). Along with additional fees, employers will now have to provide this form to CIC prior to making their work permit applications. Prior to these reforms, no information was required to be submitted to CIC for LMIA-exempt foreign workers. Receipt of this Form will also need to be included in the prospective employee s work permit application. The Form collects information about the employer s business/organization, the available job and the foreign worker. It also requires the employer s official declaration. The Form must be submitted by after the employer pays the compliance fee. By July 2015, CIC hopes to have an Employer Portal for employers hiring under the IMP that would facilitate submission of the Form and the compliance fee. Foreign nationals with valid open work permits who wish to apply for a new work permit with a specific employer will have to get the prospective employer to pay a separate compliance fee and submit the Form before making their work permit application. The fees will be used to improve data collection and to help offset the cost of the new employer compliance initiatives. The increased costs of IMP compliance may not sit well with many employers who feel they should not have to fund these reforms. Nevertheless, it is important for all relevant employers and their legal representatives to have an understanding of these new changes. Failure to adhere to this process may result in application refusal.

7 IMMIGRATION PAGE 5 LMIA Application Requirements By Rita R. Tripathy With an increasing rate of refusal on the Labour Market Impact Assessments (LMIA), it is necessary to ensure all of the LMIA requirements are satisfied prior to submitting an application. Advertisements must include all of the details of the job and all ads must contain the same information. The exception would be the job bank that does not always enable complete information. LMIAs may be rejected for missing relatively minor details. Given the policy of Service Canada to ensure that Canadians have the full opportunity for Canadian jobs, it is recommended that employers go beyond the minimum in the advertising requirements. This includes not only advertising on industry websites but also posting with additional sources. Avoid the temptation to specifically tailor an advertisement to the foreign worker who will fill the job as Service Canada will want to ensure that the advertisement is in fact a good faith effort to recruit Canadians. The prevailing wage rate often ends up being a stumbling block for employers as the rate is sometimes higher than current employees are being paid. It is important that the prevailing rate be met. When the position is within a stream for low wage positions, it is important to note that there is a refusal to process certain lowwage, lower skilled occupations. An employer will be affected by a refusal to process an LMIA where the employer is seeking to hire temporary foreign workers in a region with an unemployment rate of six percent or higher; the employer is classified as being in the accommodation and food service or retail trade; or the employer is applying to hire temporary foreign workers in one of these occupations: food counter attendants, kitchen helpers, light duty cleaners, cashiers, grocery clerks, store shelf stalkers, constructions trades helpers or laborers, landscaping and ground maintenance laborers, other attendants in accommodation and travel, janitors, caretakers, building superintendants, specialized cleaners and security guards and related occupations. It is critical to provide a strong business argument to justify the hiring of foreign workers, particularly where an employer requires the foreign workers for a longer duration. The program is a temporary foreign worker program with an intention of addressing a short-term labour need, not a permanent one.

8 IMMIGRATION PAGE 6 LMIA Stream for High Wage Positions A Faster Process By Rita R. Tripathy Many employers have chosen not to obtain Labour Market Impact Assessments (LMIAs) because the requirements for obtaining LMIAs have become very strict, the processing fee has increased and the wait time has grown. It is important to note that there is an expedited stream available for high wage positions where the LMIAs will be processed within a suggested 10-day business time. The requirements for an application to be processed within 10 business days are that the employer meets one or more of the following criteria. Highest demand occupation The job is one of the skilled trades on a list of eligible occupations and has a prevailing wage in the economic region that is at or above the provincial territorial medium hourly wage. Short duration work periods The employee is required for 120 calendar days or less and the prevailing wage is at or above the provincial territorial meeting hourly wage. Highest paid occupation The job is at the top ten percent of wages in the province or territory. Note that the 10-day service standard will not be met if the application is missing information, if additional time is required to consult the employer on details or if the employer selected for an employer compliance review or inspection. The employer compliance review or inspection is becoming more and more common.

9 News Partner Jody Wivcharuk Interviewed in Advantage Magazine BD&P Partners Named in Lexpert s 2015 Guide to the Leading US/Canada Cross Border Corporate Lawyers in Canada BD&P Partners Named in Lexpert s 2015 Special Edition on Canada s Leading Corporate Lawyers BD&P Partners Named to Who s Who Legal, Canada 2015 Shell & B.G. Merger: What Does It Mean for B.C. s LNG Projects? To read more about these and other BD&P news items click HERE COMMON SENSE, UNCOMMON INNOVATION. BD&P is a leading Canadian law firm of over 140 lawyers skilled in virtually every aspect of business law and litigation. 2400, 525-8th Avenue SW, Calgary, Alberta T2P 1G1 Phone: Fax: