WELCOME Added experience. Added clarity. Added value.

Transcription

1 WELCOME Added experience. Added clarity. Added value. VANCOUVER CALGARY EDMONTON SASKATOON REGINA LONDON KITCHENER-WATERLOO GUELPH TORONTO MARKHAM MONTRÉAL

2 New Developments, Categories and Challenges to the Hire and Retention of Foreign Workers Presented by: Veronica Choy / Shannon Houston 2015 HRIA Conference, April 22, Edmonton m

3 Legislative Changes to Canadian Immigration Notable Changes from Past 12 months June 9, 2014: Change to interpretation of specialized knowledge for Intra Company Transferee work permits. June 20, 2014: Federal Government s self-entitled overhaul of the Temporary Foreign Worker Program (TFWP), replacement of LMOs with Labour Market Impact Assessments, $1000 filing fee August 1, 2014: Change to the definition of child dependent for immigration purposes November 30, 2014: Revisions to Live-In-Caregiver Program December 22, 2014: Pilot Program granting Open Work Permits for applicants of in-land spousal sponsorship applications prior to Approval in Principle January 1, 2015: Launch of Express Entry System February 21, 2015: Revisions to International Mobility Program 3

4 Change to Interpretation of Specialized Knowledge - June 9, 2014 To have specialized knowledge and to meet the requirements of GATS, an Intra Company Transferee applicant must demonstrate, on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise Proprietary knowledge is company-specific expertise related to a company s product or services An advanced level of expertise is specialized knowledge gained through significant and recent experience with the organization and used by the individual to contribute significantly to the employer s productivity 4

5 Change to Interpretation of Specialized Knowledge - June 9, 2014, (Cont d) THEREFORE Advanced proprietary knowledge is: uncommon knowledge of the company s products or services and its application in international markets; and/or an advanced level of expertise or knowledge of the enterprise s processes and procedures such as its production, research, equipment, techniques or management. 5

6 Overhaul of TFWP June 20, 2014 LMO is now Labour Market Impact Assessment (LMIA) Considers wage and skill levels Transition Plan for high wage/high skill positions to state how you will transition your workforce to being primarily Canadian/Canadian Permanent Residents Cap calculation for low wage/low skill positions $275 application fee increased to $1, day processing for short term positions, high wage positions and trades 6

7 Overhaul of TFWP Significantly increased scrutiny on advertising requirements Job title Company name Business address Wage (must be at or above the prevailing wage rate) Benefits Permanent vs. temporary position Duties Education requirement Experience requirement Work location Contact information 7

8 Labour Market Impact Assessment Recruitment Efforts Varying types of advertising accepted LinkedIn and Facebook not accepted by Service Canada Issues with Monster AND Workopolis (or others targeting like groups) (Kijiji and Craigslist) Issues with Indeed.ca and other similar websites Strongly encouraged to contact underrepresented groups (mandatory for low wage positions) Must be active for minimum 4 weeks before submission requirement/recommendation for ALL forms of advertisement to remain up until LMIA adjudication NOC code details are gospel Caution: slightly different standards applied by different processing offices 8

9 Transition Plan High Wage Positions Must come up with 3 separate and distinct activities to attract more Canadians/Canadian Permanent Residents One additional activity is required that targets one or more under represented groups which include aboriginal workers, people with disabilities, youth and older workers Fifth activity is how to change worker to PR status and is optional Activities can be things that the company started doing within the last 18 months. Be prepared to revise your Transition Plan according to the officer s instructions or suggestions 9

10 Cap Calculation Low Wage Positions To establish the cap you must Tally ALL of the hours of work for ALL employees at the work location in a 4-week period between May 10 and June 20, 2014; Calculate the average weekly hours for the selected 4- week period; Tally ALL of the hours of work for TFWs who are on LMO/LMIA based work permits for the selected 4-week period; Calculate the percentage of all staff that are TFWs who are on LMO/LMIA based work permits. 10

11 Cap Calculation Low Wage Positions If the percentage is less than 10% then 10% is your cap If the percentage is higher than 10% then the cap will depend on the date you have applied for the LMIA: If between June 20, 2014 and June 30, 2015 then cap is set at 30% If between July 1, 2015 and June 30, 2016 then cap is set at 20% July 1, 2016 and later then the cap is set at 10% 11

12 Change to Definition of Child Dependent August 1, 2014 The age at which a child considered a dependant reduced from under 22 to under 19. The exception for full-time students has been removed. Applicants children who are 19 or over but are financially dependent on their parents and are enrolled in full-time studies are no longer eligible to be processed as dependent children. In all cases, a child will continue to be considered a dependant, regardless of age, if they have depended substantially on their parents for financial support since before the age of 19 and are unable to be financially selfsupporting because of a mental or physical condition. 12

13 Changes to Live-In Caregiver Program November 30, 2014 Now called the In-Home Caregiver Program Caregivers no longer required to be live-in (includes those currently working under program) Eligibility must be based on: Completion of secondary education At least 6 months of training or at least one year of full-time paid work experience as a caregiver or in a related field or occupation (including six months with one employer) in the past three years Additional pathways to Permanent Residency and guarantee of 6 month processing period 13

14 Open Work Permits for Applicants of In-land Spousal Sponsorships December 22, 2014 Citizenship and Immigration Canada (CIC) will issue open work permits to certain spouses or common-law partners who are applying for permanent residence from inside Canada (via spousal sponsorship application), before the approval in principle decision on their application is made. Potentially shortening processing time from 10+ months to within 4 months Pilot program in effect for one year from December 22,

15 January 1, 2015: Express Entry What is it? A new electronic system to manage applications for permanent residence under certain economic immigration programs Previously known as Expression of Interest program Economic programs effected: Federal Skilled Worker Program Federal Skilled Trades Program Canadian Experience Class Provincial/Territorial Nomination Programs (limited degree) 15

16 Express Entry What Does it Do? Allows individuals in and outside of Canada to formally express interest in acquiring permanent residency status in Canada and to provide background information on education, work experience and other personal information ( human capital and skill transferability factors ) Allows Citizenship and Immigration Canada to cherry-pick individuals who have expressed an interest in immigrating to Canada based upon identified needs and priorities Allows approved Canadian employers to review applicants within Express Entry pool to find individuals who may be able to address labour needs and potentially support the permanent residency application for that individual. (Not yet in effect as of beginning of February, 2015) Allows Provincial/Territorial Nomination Programs to review applicants within Express Entry pool for the purposes of potentially offering a nomination in support of a permanent residency application 16

17 Express Entry How Does It Work? Applicants create an online profile by which they enter their personal information (including, but not restricted to: age, education, work experience) and language test results and are evaluated for entry into the Express Entry pool. There is no fee to submit a profile into the Express Entry Pool. To be entered into the Express Entry pool, each applicant must qualify under at least one of the 3 federal economic programs. Once his/her information is entered, each applicant is awarded points under the Comprehensive Ranking System (CRS) based on different human capital factors (eg. age, education, work experience, language ability, etc.) as well whether the applicant is in possession of a Provincial/Territorial Nomination and/or the beneficiary of a Labour Market Impact Assessment. 17

18 Express Entry How Does It Work? (Cont d) At undetermined times, the CIC will issue Invitations to Apply to identified top applicants within the Express Entry pool (aka draws ). These applicants will then have 60 days to submit their complete permanent residence application. CIC has indicated that it will process these applications for permanent residency within 6 months. Draws to invite candidates to apply will take place regularly over the course of each year. There is no priority for applications submitted earlier over those submitted later, and there will be priority placed on applications qualifying under certain Economic Class programs (FSTP) over others (CEC). There have been 7 draws thus far in So far, Invitations to Apply have not been issued to any profiles with scores less than 453 (which was draw #6 on March 27, 2015) under the CRS. Draw #7 happened on April 10, 2015 and only profiles with scores of at least 469 were issued Invitations to Apply. Also on April 10, 2015, Canada welcomed the first 3 Permanent Residents under Express Entry. There were 779 Invitations to Apply issued in the first draw therefore, assuming they were issued invites in the first draw, complete processing occurred within 2.5 months. 18

19 Express Entry How Does It Work? (Cont d) Profiles within the Express Entry Pool can be updated (and thus changing the CRS point ranking) at any time after the initial application will retain a shelf life of 1 year. There are no identified occupations that CIC has identified as being given priority and there is no cap to the number of Invitations to Apply it will issue within any given period. If an applicant does not have an LMIA they must register with the Job Bank s Job Match program after they have created their Express Entry profile. 19

20 Comprehensive Ranking System Maximum number of points = 1,200 Different scoring system for applicants applying individually versus applicants applying with spouses Benefit of Labour Market Impact Assessment (LMIA) = 600 points Benefit of Provincial/Territorial Nomination = 600 points Must have language test results to create profile Must have Education Credential Assessment to acquire points with regard to education 20

21 Human Capital Factor Age Education Language Canadian Work Experience Single: Max.110 points for age (Age range:18-44) Single: Max. 150 points for PhD (Range: HS to PhD) Single: (1 st official language) Max. 34 points for level 10 in each skill area (Max. 136 points) Single: Max. 80 points for 5 years Married: Max. 100 points for age (Age range: 18-44) Married: Max.140 points for Ph.D (Range: HS to PhD) Single: (2 nd official language) Max. 6 points for level 9 in each skill area (Max. 24 points) Married: Max. 70 points for 5 years No Additional Points for Spouse Spouse: Max. 10 points for MA/ Prof. Degree/PhD Married: (1 st official language) Max. 32 points for level 10 in each skill area (Max. 128 points) Spouse: Max. 10 points for 5 years Spouse: Max. 5 points for level 9 for each skill level) (Max. 20 points) Must be Canadian educational credentials or have valid educational credential equivalency assessment (2 years for applicant, 5 years for spouse) Married: (2 nd official language) Max. 6 for level 9 in each skill area) (Max. 22 points) Full-time ( 30 hrs/week) (or = p/t) continuous work within past 10 years in NOC O, A or B 21

22 Skill Transferability Factors Education and Language Canadian Work Experience Must have Canadian education or ECA completed. Foreign Work Experience and Based on 0 to 3+ years of foreign work experience Certificate of Qualification (for trades) and 0-50 points dependant on level of education and language test scores Language 0-50 points dependant on amount of foreign work experience and language test scores Language points available dependant on language test scores 0-50 points dependant on level of education and whether applicant has 0 to 2+ years of Canadian work experience Canadian Work Experience 0-50 points dependant on amount of foreign work experience and whether applicant has 0 to 2+ years of Canadian work experience 22

23 Labour Market Impact Assessments for Express Entry To acquire the 600 points available under this category, applicants may use pre-existing LMIAs of which they are the identified beneficiary or Employers may apply for LMIAs in support of worker/applicants specifically for Express Entry application An LMIA specifically obtained for Express Entry cannot be used to apply for a work permit, is exempt from the $1000 filing fee, the Transition Plan and is to be processed by ESDC within 10 business days. They are not, however, exempt from recruitment requirements. 23

24 Frequently Asked Questions About Express Entry Do I need an LMIA to submit a profile into the Express Entry System? How long after submitting a profile into Express Entry can I expect to receive an Invitation to Apply? I have been working in Canada for several years already and am currently holding a valid work permit. Do I receive any priority over applicants who are not currently in Canada under Express Entry? Why do I have to register with the Job Bank if I already have a job? 24

25 International Mobility Program Change February 21, 2015 All LMIA exempt work permits are subject to an additional $230 fee that must be paid BEFORE the submission of the work permit application along with a completed IMM5802 Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA) form Fee must be paid first, then form must be completed (including receipt number for fee payment) and submitted to CIC online Form includes details of the offer of employment including responsibilities and requirements of the position, salary/wage and benefits offered 25

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30 International Mobility Program Change February 21, 2015, (Cont d) All open work permit applications are subject to an additional $100 fee to be paid at the time of submission of work permit application. This fee is also paid separately from the regular work permit fee when making an online application. If making a port of entry application, this fee can be paid at the time of the application. 30

31 More Changes to Come! Changes to residency requirements of permanent residents for citizenship eligibility purposes Additional changes to TFWP to come into effect for other programs (i.e. limiting the duration of low wage TFW s) 31

32 Thank You Questions? 32

33 Added experience. Added clarity. Added value. Veronica Choy Shannon Houston Miller Thomson LLP, All Rights Reserved. All Intellectual Property Rights including copyright in this presentation are owned by Miller Thomson LLP. This presentation may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested from the presenter(s). This presentation is provided as an information service and is a summary of current legal issues. This information is not meant as legal opinion and viewers are cautioned not to act on information provided in this publication without seeking specific legal advice with respect to their unique circumstances.