Category Archives: Federal Skilled Workers

Changes to Language Requirements

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New Language Requirements for Citizenship and PNP Applications

Citizenship and Immigration Canada (“CIC”) has introduced new language requirements for citizenship applications and certain provincial nominee applications.  For citizenship applications, the changes will introduce objective language requirements for most applicantions.  For certain provincial nominee program (“PNP”) applications, the changes will introduce mandatory language testing.

The Citizenship Langugage Requirements  

Applicants for Canadian citizenship are required to demonstrate that they have an adequate knowledge of either English or French.  Currently, this is done through a multiple choice written test known as the Citizenship Exam, which also tests knowledge of Canada and the responsibilities of citizenship.

On April 21, 2012, the Government of Canada introduced regulatory changes that when they take affect will require that citizenship applicants enclose proof that they meet the language requirement with their citizenship application.  Acceptable means of proof will include:

  • A language test result from an authorized testing agency;
  • Evidence of completion of secondary or post-secondary education in English or French; or
  • Evidence of completion and achievement of a certain level in a government-funded language training program.

Applicants submitting test results from an authorized testing agency will have to achieve a minimum standard of Canadian Language Benchmark (“CLB”) 4 in English or Niveaux de comeptence linguistique canadiens (“NCLC”) level 4 in French.  The areas that will be tested are speaking and listening.  For those familiar with the International English Language Testing System (“IELTS”), currently required for many permanent residence applications, this translates into a 4 in each category.

Applicants who provided mandatory language testing results as part of their permanence residence applications can submit those test results with their citizenship application, and will not be required to be re-tested.

The change will affect all adult citizenship applicants between the ages of 18 and 54.

More information about the change, and the other details of the regulatory changes, can be found at the Canada Gazette here: http://www.gazette.gc.ca/rp-pr/p1/2012/2012-04-21/html/reg1-eng.html  

The PNP Langugage Requirements  

On April 11, 2012, CIC announced that most PNP applicants for semi- and low-skilled professions that fall under Naitonal Occupational Classification (“NOC”) Skill Levels C and D  will have to take mandatory language testing of their listening, speaking, reading, and writing.  They will be required to meet a minimum standard across all four of these categories.

Acceptable tests will include the IELTS, the Canadian English Language Proficiency Index Program (“CELPIP-General”), and the Test d’evaluation de francais.  The minimum standard required will be CLB 4.  No other evidence of language profiency will be accepted.

The change will take effect on July 1, 2012.  However, CIC has announced that any temporary foreign worker who arrives in Canada on or before July 1, 2012, and who subsequently gets nominated no later than July 1, 2013, will be exempted from the requirement.  It is important to note that while CIC has allowed this exemption, it is still unknown whether provincial governments will nonetheless start requiring language testing sooner.

It should also be noted that in January, 2012, CIC indicated that intends to introduce language testing across all PNP streams by the end of 2012.

More information about the change, and the other requirements of the program, can be found at the WelcomeBC here: http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-04-11.asp  

Skilled Worker Non-Processing Letters Going Out

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And so it begins.  Citizenship and Immigration Canada has begun sending letters to Federal Skilled Worker Applicants who applied prior to February 27, 2008, that their applications will not be processed, and that they will soon be contacted regarding a refund.

Regardless of what one thinks of the merits of cancelling the backlog (I am sympathetic to both sides’ arguments), the way in which the Government of Canada is executing its decision to cancel the applications is problematic.  Indeed, I believe that the government is acting in a way that will lead to court intervention.

In brief, the government is cancelling these applications without having yet passed any legislative changes permitting them to do.  The Immigration and Refugee Protection Act and its Regulations still state that the affected applicants are eligible to immigrate to Canada.

From what I can tell, the Minister is currently governing through press release.  Ironically, the press release notes that the cancellation and refund of the above applications will occur as a result of “proposed legislation”.

http://www.cic.gc.ca/english/department/media/releases/2012/2012-03-30a.asp

The proposed legislation has not yet been introduced either in the House of Commons or in the Canada Gazette. Despite that, Citizenship and Immigration Canada is already cancelling applications.

Press releases cannot trump statute, and I predict an upcoming wave of successful litigation.

International PHD Students – New Category under Federal Skilled Worker Program

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Flickr photo by Astro Guy

Ministerial Instruction 4′s changes to the Parent and Grandparent Sponsorship Program overshadowed the introduction of a new stream to the Federal Skilled Worker Program.

Effective immediately, a maximum of 1,000 new Federal Skilled Worker applications from international students pursuing PhD studies at Canadian institutions will be considered for processing each year.

This cap will be calculated over and above any other Federal Skilled Worker caps on application intake.

Applicants must meet one of the two following criteria:

  1. Be an international student currently enrolled in a PhD program, delivered by a provincially or territorially recognized private or public post-secondary educational institution located in Canada, and have completed at least two years towards the completion of their PhD and is in good academic standing, and not a recipient of a Government of Canada award.
    or
  2. Be a foreign nationals who has completed a PhD program from a provincially or territorially recognized private or public post-secondary educational institution located in Canada no more than 12 months prior to the date that their application is received. If the Applicant was a recipient of a Government of Canada award then the applicant must have satisfied the terms of the award.

This is certainly a welcome development for PHD students, and I wonder what impact that this will have on the Provincial Nomination Programs currently designed to attract PHD students.  Will these programs be closed and quota spots be allocated elsewhere?

Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

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Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.

Two recent Federal Court decisions affirm this principle.

In Zaib v. Canada (Citizenship and Immigration), 2010 FC 769, a visa officer became concerned with the legitimacy of an applicant’s educational credentials. The immigration officer asked the applicant to provide documentary confirmation of his degree. The officer then received a letter purportedly from the applicant’s university, the University of Punjab. When the officer contacted the university to ask questions about the letter, the officer was told that the letter was a fake.

The officer then sent a letter to the applicant stating that he had “reasonable grounds to believe that the degree you have submitted is fraudulent. Please provide evidence to the contrary within 30 days…”  The officer did not mention the conversation with the university.

The Court found that this breached procedural fairness. It stated that an applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the applicant prior to the decision being made.

If an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence.

The Court noted that the officer never asked the University of Punjab to verify whether or not the applicant’s degree was real. He only expressed concerns over whether the letter was real. His refusal letter, however, was based on questions about the degree, not the letter.

In Akinmayowa v. Canada (Citizenship and Immigration), 2011 FC171, the applicant applied under humanitarian & compassionate grounds. As noted by the Court, the officer deciding the application had received a letter which stated:

This letter to the Immigration Case Processing Centers in Mississauga and Vegreville from an anonymous source calling itself “CONCERNED NIGERIAN/CANADIANS, TORONTO”, states, and I paraphrase:

1) the marriage between the applicant and her husband “should not be given a favourable consideration due to its illegal nature;

2) the applicant is married to a prominent business man in Nigeria and “there was no problem whatsoever within the family”. The story before the IRB is “fiction”;

3) The applicant arranged this marriage and paid $8,000; and

4) This is a “bogus marriage” for immigration purposes.

Like in Zaib, the Court found that the failure to disclose this extrinsic letter to the Applicant was a breach of procedural fairness.

In Kahin v. Canada (Citizenship and Immigration), 2011 FC 1064, the Respondent argued that a visa officer did not have a duty to disclose the results of his investigation because the applicant should have anticipated that the officer might seek to verify the information that he submitted.  However, Justice Barnes found that the information nonetheless had to be disclosed because “the information relied upon here might well be wrong, incomplete, or open to explanation.”

As Justice Barnes noted in citing the Federal Court’s decision in D.K. v. Canada:

The Officer may have been right in concluding that the post-hearing material was of no value and may have been fraudulent but that is not the point. The point is that the applicant and her counsel had no opportunity to comment on the evidence which the officer herself obtained and relied on to render the decision she reached.

Amalgamating Years of Study Under the Federal Skilled Workers Program

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Under the Federal Skilled Workers Program, an eligible applicant is required to accumulate 67 points in order to immigrate. Points are awarded according to a variety of factors, including age, education, adaptability, language and experience.

Regarding adaptability, section 83(1)(b) of the Immigration and Refugee Protection Regulations provides that:

83. (1) A maximum of 10 points for adaptability shall be awarded to a skilled worker on the basis of any combination of the following elements:

(b) for any previous period of study in Canada by the skilled worker or the skilled worker’s spouse or common-law partner, 5 points;

Section 83(3) clarifies what “periods of study” are eligible for points.

(3) For the purposes of paragraph (1)(b), a skilled worker shall be awarded 5 points if the skilled worker or their accompanying spouse or accompanying common-law partner, by the age of 17 or older, completed a program of full-time study of at least two years’ duration at a post-secondary institution in Canada under a study permit, whether or not they obtained an educational credential for completing that program.

[Emphasis added]

In Patel v. Canada, 2010 FC 1025, and 2011 FCA 187, the issue of whether a visa officer should aggregate programs of study that do not each constitute two years of full-time study of at least two years’ duration at a post-secondary institution in Canada arose.   There, the Applicant had obtained a one-year diploma at one school, and then completed one year of study (without obtaining a credential) at another.  He argued that for the purpose of s. 83(3) of the Regulations the two programs should be amalgamated, and that he should be awarded 5 points for education.

The Federal Court Decision

At the Federal Court, Justice Barnes agreed with the Applicant.   He noted that ss. 33(2) of the Interpretation Act, R.S., 1985, c. I-21 dictates that when interpreting a statute:

Number

(2) Words in the singular include the plural, and words in the plural include the singular.

Accordingly, he found, the references in s. 83 to the singular must be taken to include “programs”, “institutions”, “study permits” and “those programs”.

He also noted that allowing for the amalgamation of uncompleted programs was consistent with the purpose of s. 83, which is to award points for adaptability. Under a purposive approach to statutory interpretation, he reasoned would make no difference how many schools were attended in order to gauge whether someone could demonstrate an ability to adapt to Canadian society.

Furthermore, Justice Barnes found that “two years of study” means academic years, and not calendar years.

The following question was certified.

In assessing adaptability under s. 83 of the Immigration and Refugee Protection Regulations, should a visa officer aggregate programs of study that do not each constitute two years of full-time study of at least two years’ duration at a post-secondary institution in Canada and award points if the total period of study amounts to or exceeds two years of full-time study at one or more post-secondary institutions?

The Federal Court of Appeal Decision

The Federal Court of Appeal reversed Justice Barne’s decision.  It stated that a plain reading of both the French and the English versions of the Immigration and Refugee Protection Regulations indicated that the legislative intent was that a program needed to be completed if points were to be awarded, and that study in disparate programs for a total of two years.

The Court also disagreed regarding the purpose of the legislation.  It stated that subsection 83(3) is part of a legislative regime designed to determine whether a skilled worker will be able to become economically established in Canada.  In paragraph 34, it noted that disparate programs, that is fundamentally different or distinct programs, are less likely to teach skills that will lead to economic establishment when compared with completion of one two-year program.

MI-3: Significant Changes to the Federal Skilled Worker Program

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MI-3

On July 1, 2011, the third set of Ministerial Instructions (“MI-3″) came into affect.  MI-3 introduced significant changes to the Federal Skilled Worker Program (“FSW”).

Cap on the number of applications to be processed per year reduced

On June 26, 2010, Citizenship and Immigration Canada (“CIC”) announced that a maximum of 20,000 Federal Skilled Worker applications, without an offer of arranged employment, would be considered for processing each year.  MI-3 reduced this amount to 10,000.

The occupations that are eligible under the FSW without an offer of arranged employment are:

  • 0631 Restaurant and Food Service Managers
  • 0811 Primary Production Managers (Except Agriculture)
  • 1122 Professional Occupations in Business Services to Management
  • 1233 Insurance Adjusters and Claims Examiners
  • 2121 Biologists and Related Scientists
  • 2151 Architects
  • 3111 Specialist Physicians
  • 3112 General Practitioners and Family Physicians
  • 3113 Dentists
  • 3131 Pharmacists
  • 3142 Physiotherapists
  • 3152 Registered Nurses
  • 3215 Medical Radiation Technologists
  • 3222 Dental Hygienists & Dental Therapists
  • 3233 Licensed Practical Nurses
  • 4151 Psychologists
  • 4152 Social Workers
  • 6241 Chefs
  • 6242 Cooks
  • 7215 Contractors and Supervisors, Carpentry Trades
  • 7216 Contractors and Supervisors, Mechanic Trades
  • 7241 Electricians (Except Industrial & Power System)
  • 7242 Industrial Electricians
  • 7251 Plumbers
  • 7265 Welders & Related Machine Operators
  • 7312 Heavy-Duty Equipment Mechanics
  • 7371 Crane Operators
  • 7372 Drillers & Blasters — Surface Mining, Quarrying & Construction
  • 8222 Supervisors, Oil and Gas Drilling and Service

    • Within the 10,000 cap, a maximum of 500 new FSW applications per occupation above will be considered for processing each year.  This represents a reduction from the previous 1,000. The cap year will begin on July 1, 2011 and end on June 30, 2012.

    All applications are to be sent to the Centralized Intake Office in Sydney, Nova Scotia, to determine if they meet the above requirements, before they can be sent to a visa office.

    Substituted Evaluations for Federal Skilled Worker Applicants [Updated]

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    There is a myth amongst potential Federal Skilled Worker Program applicants that their application to immigrate is guaranteed if they can pass the 67 point threshold generally required under the program.  This is not true for several reasons, including the need for an Arranged Offer of Employment or the required skills in one of the 29 eligible NOC categories, the new requirement to pass a language exam, and the possibility of a substituted evaluation.

    This post will focus on the issue of substituted evaluations.

    Regulation 76(3) provides that:

    (3) Whether or not the skilled worker has been awarded the minimum number of required points referred to in subsection (2), an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada.

    Substituted evaluations occur on a case-by-case basis.  The test is whether or not the officer believes “the likelihood of the ability of the skilled worker to become economically established in Canada”.   There is no prescribed list of factors that an officer may consider relevant.  Furthermore, officers are not under a duty to provide reasons for their decision not to exercise their discretion to apply a substituted evaluation: Marr v. Canada.  An officer simply has a duty to inform an applicant that the request for substituted evaluation was considered: Poblano v. Canada.

    If an officer decides to use substituted evaluation, then the officer must communicate his/her concerns to an applicant and provide the applicant with an opportunity to respond to the concerns.

    The recent case of Debnath v. Canada (Citizenship and Immigration) illustrates the process.

    The applicant was a citizen of a Bangladesh who practiced medicine at a large government hospital in Malaysia.  In his application for permanent residence, he had secured 68 points, which is more than the 67 required under the program.

    At the interview, however, the visa officer told the applicant that he was concerned about the potential for recognition of his medical qualifications in Canada. The doctor submitted various documents related to his qualifications.  The visa officer still disagreed, and used a substituted evaluation to reject the application. The officer noted that the applicant had failed to establish how he would qualify as a doctor in Canada. The Court agreed, noting that the applicant’s plans to become economically established were “cloudy.”

    This decision is no doubt shocking and disconcerting for people who exceed the required number of points, and serves as a useful reminder that immigrating to Canada is not simply a question of acquiring points.

    Having said this, it is possible for counsel to request that a visa officer use substituted evaluation to rule in the applicant’s favor in cases where the applicant does not have the required number of points. People who wish to apply under the Federal Skilled Worker Program should discuss this possibility with their counsel if they are unsure that they will be awarded the required number of points.

    Determining Education Points Under the Federal Skilled Worker Program [Updated]

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    Under the Federal Skilled Worker Program (the “FSWP”) an individual may be eligible to immigrate to Canada if the person has a valid offer of arranged employment in any NOC A or B occupations, or one year of continuous full-time paid work experience in any of the jobs listed here.

    As well, the individual must obtain 67 points. Points are available as follows:

    Selection Factor Available Points
    Education 25
    Proficiency in English and/or French 24
    Experience 21
    Age 10
    Arranged employment in Canada 10
    Adaptability 10

    Under education, points are calculated as follows:

    Education Maximum
    25 points
    Master’s degree or PhD and at least 17 years of full-time or full-time equivalent study. 25
    Two or more university degrees at the bachelor’s level and at least 15 years of full-time or full-time equivalent study. 22
    Three-year diploma, trade certificate or apprenticeship and at least 15 years of full-time or full-time equivalent study. 22
    University degree of two years or more at the bachelor’s level and at least 14 years of full-time or full-time equivalent study. 20
    Two-year diploma, trade certificate or apprenticeship and at least 14 years of full-time or full-time equivalent study. 20
    One-year university degree at the bachelor’s level and at least 13 years of full-time or full-time equivalent study. 15
    One-year diploma, trade certificate or apprenticeship and at least 13 years of full-time or full-time equivalent study. 15
    One-year diploma, trade certificate or apprenticeship and at least 12 years of full-time or full-time equivalent study. 12
    Completed high school. 5

    Many people often ask why they would require assistance to help them determine the number of points available to them for education under the FSWP given the above chart.   It is not, however, always clear.  Determining education points under the FSWP is one of the more hotly contested areas of immigration law.

    Consider the following issues involving the calculation of education credentials that have recently gone to court.

    How are Points Awarded Where an Individual Studies but does Not Obtain a Degree?

    Guzman completes high school, which takes 10 years.  He completes a one-year diploma in automotive mechanics.  He also attends university for three years, but does not complete a diploma or certificate.

    The issue that arises in the above example is whether to count Guzman’s three years of university as contributing to the number of years that he studied full time.  If he gets to include it, then he is eligible for 15 points.  If not, then he only gets 12.

    Section 78(1) of the Regulations defines “full-time studies” as being “in relation to a program of study leading to an educational credential”.

    Accordingly, years of full time study or full-time equivalent study that do not lead to the obtainment of an educational credential do not count when determining the number of years of full-time or full-time equivalent study under the Federal Skilled Worker Program.

    Cases: De Guzman v. Canada (Citizenship and Immigration), 2010 FC 1113; Roberts v. Minister of Citizenship and Immigration, 2009 FC 518

    How are Points Awarded Where a Credential is Obtained, but the Applicant also Studied in Programs that did Not Lead to the Educational Credential Being Assessed? or If an Individual Has Two Masters Degrees, how are Points Assessed?

    An individual has a BA in Political Science, a MA in Political Science, an MBA, and a Diploma in Fashion Merchandising. In total, the individual completed 18 years of full-time study.

    Whether or not an individual should receive points for educational credentials that were received but did not lead to the “ultimate credential” is currently the subject of a certified question for which a Federal Court decision is pending.  Jurisprudence on the matter currently varies widely. The question is:

    In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time or full-time equivalent studies that did not contribute to obtaining the educational credential being assessed?

    How the Federal Court of Appeal decides will be based on its interpretation of s. 78(3) of the Regulations.  Section 78(3) states that:

    Multiple educational achievements

    (3) For the purposes of subsection (2), points

    (a) shall not be awarded cumulatively on the basis of more than one single educational credential; and

    (b) shall be awarded

    (i) for the purposes of paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of the single educational credential that results in the highest number of points, and

    (ii) for the purposes of subparagraph (2)(e)(ii), on the basis of the combined educational credentials referred to in that paragraph.

    In Kabir v. Canada, 2010 FC 995, the applicant argued that he should have been awarded 25 points for the above-mentioned education experience. The Officer disagreed, and awarded 22 points. No points were awarded for the second degree at the Master’s level nor for the Diploma in Fashion Merchandising.  The officer excluded it because the diploma was not in the line of progression toward the highest educational credential.  The Federal Court agreed with the Officer’s decision, noting that s. 78(3)(a) provides that points shall not be awarded cumulatively on the basis of more than one single educational credential.

    In Hasan v. Canada (Citizenship and Immigration), 2010 FC 1206, the Court took a different approach.  It stated that the purpose of s. 78 was directed at the assessment of educational accomplishment.  It noted that s. 78(3)(b)(i) provides that the analysis is supposed to consider the single educational credential that results in the highest number of points.  In order to give effect to that provision, it would be necessary to look at assess an applicant’s complete academic history.

    As is evident, there is much uncertainty in the law about this, and those Federal Skilled Worker applicants who are aware of this issue are likely keenly awaiting an answer from the Federal Court of Appeal.

    When Evaluating “Full-Time Equivalent” studies, does one assess only the period of time that is needed to achieve a particular educational credential on a full-time basis, or does one also consider the nature and quantity of instruction that an individual receives?

    Shahid successfully completes university, but as an external candidate.  An external candidate only has to write a scheduled exam, complete the appropriate form, and pay the required fees.  The candidate can then prepare through independent studies or with the assistance of a private tutor.

    In determining whether to count as “full-time equivalent” people who challenge exams, it is necessary to note the definition of “studies” in the Regulations.  The Regulations state:

    “studies” means studies undertaken at a university or college, or any course of academic, professional or vocational training.

    “Full-time” meanwhile, is defined as:

    “full-time” means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the workplace that forms part of the course of instruction.

    Finally, “full-time equivalent” means:

    “full-time equivalent” means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full-time basis.

    Taken together, the Federal Court of Appeal has stressed that “studies” require that an individual actually complete studies at a university.  It has noted that the “full-time equivalent” provisions are not intended to apply to self-study programs.  Rather, they apply to people who either study part time, or take an accelerated program.

    The Federal Court of Appeal has thus held that the definition of “full-time equivalent” applies when there is a discrepancy between the time in which a particular “educational credential” (as defined) is obtained by an individual and the time required to obtain the same credential on a full-time basis by reason of having followed part-time or accelerated studies at an educational or training institution recognized by the authorities.  The definition requires a consideration of both the nature and quantity of instruction received by the individual: Shahid v. Canada, 2011 FCA 40.

    Is a second Master’s degree the “single educational credential that results in the highest number of points”?

    Phil studied for 15 years to obtain his Masters of Arts.  He then completed a two-year MBA.

    The Federal Court has recently certified the following question:

    “For the purposes of section 78(3)(b)(i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second Masters’  degree under section 78(2)(f) as the “single educational credential that results in the highest number of points”?”

    As soon as the Federal Court of Appeal answers, we will post it here.

    How are points to be awarded when an individual attends secondary school in a school system where secondary school is one year shorter than in Canada?

    YM attended secondary school in Scotland.  High school in Scotland only takes 4 years, as opposed to the five that it takes in Canada.

    In Young Marr v. Canada (2011 FC 367), the Federal Court noted that s. 78(4) of the Regulations require that where there are special circumstances, an officer can award the number of points for achieving an educational credential, even if the number of years studied to achieve that credential falls short of the general points grid.