Accelerated Labour Market Opinions

Posted on April 30, 2012 by Steven Meurrens

On April 25, 2012, Human Resources and Skills Development Canada (“Service Canada”) launched two initiatives that will significantly change the process by which Canadian employers interested in hiring foreign workers apply for Labour Market Opinions (“LMO”). These are the Accelerated Labour Market Opinion Initiative (“A-LMO”) and the introduction of online applications.

The A-LMO

The purpose of the A-LMO is to reduce LMO processing times. Service Canada has indicated that their objective is that A-LMO applications will be processed in 10 business days, a significant reduction from the current average LMO processing time of 2-4 months.

In addition to reduced processing times, the A-LMO will also feature:

A reduction in the amount of documentation that employers have to submit to Service Canada when they apply for their A-LMO. Significantly, employers will no longer have to submit proof of recruitment.
Flexibility on the prevailing wage. A wage of up to 15% less than the prevailing wage for an occupation will be accepted provided that the employer pays similar wages to Canadians and permanent residents employed in the same occupation.
A waiver of the mandatory in-depth interview.

Eligibility

To be eligible to participate in the A-LMO, an employer must:

Have been issued at least 1 positive LMO within the last 2 years;
Have a clean record of compliance with the Temporary Foreign Worker Program within the last 2 years;
Not have been the subject of an investigation, infraction, or a serious complaint; and
Not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.

Eligible employers can only apply under the A-LMO if they are trying to fill a high-skilled position classified under the National Occupational Classification skill type 0, A, and B. These positions are generally occupations which are management, professional, or technical in nature.

Applications to fill positions in film, entertainment, and agriculture are specifically not eligible for the A-LMO.

Compliance Review

Although employers will no longer have to submit proof of recruitment and undergo an interview, they will have to attest that they complied with Service Canada’s requirements for hiring of foreign workers, including that the employer:

provided wages, working conditions, and an occupation to the foreign worker that was substantially the same as those offered in the A-LMO application;
provided wages and working conditions to the foreign worker that were the same as those offered to Canadian citizens and permanent residents in the same occupation and work location;
performed the minimum recruitment efforts;
filled a labour shortage;
‘s employment of the foreign national did not adversely affect the settlement of a labour dispute; and
abided by the relevant federal/provincial/territorial laws that regulate employment and recruitment.

In order to ensure compliance, Service Canada will conduct compliance reviews on approximately 18% of A-LMOs.

Service Canada has specifically indicated that employers that pay less than the prevailing wage will likely be subjected to compliance reviews.

Service Canada has also instructed employers that they should retain all documents related to their A-LMO applications for up to 6 years, and that failure to do so will result in their future ineligibility to participate in the A-LMO initiative.

Employers found non-compliant will:

be ineligible to use the A-LMO initiative in the future;
face the possible revocation of LMOs where Work Permits have not been issued;
have their breach shared with other branches of government; and
face greater scrutiny on any pending or subsequent LMO applications.

Do People in the International Transportation Industry Require Work Permits?

Posted on February 3, 2012 by Steven Meurrens

Many people who work for industries that involve the international transport of cargo and passengers frequently enter Canada. These include truck drivers, bus drivers, shipping and airline personnel. We often receive inquiries as to whether these individuals require work permits.

Maritime Travel

The determination of whether crew on a maritime vessel require a Work Permit to work in Canada depends on whether the vessel meets the definition of “coasting trade” as defined in Canada’s Coasting Trading Act, SC 1992, c 31. The Coasting Trade Act defines “Coasting Trade” as:

the carriage of goods or passengers by ship… from one place in Canada… to any other place in Canada… either directly or by way of a place outside Canada.

Subject to certain exceptions, when a vessel meets the above definition of “coasting trade”, then the vessel’s foreign crew will require a work permit to work in Canada. The reason is because the vessel is involved in cabotage (domestic transportation of goods and services) activities within Canada’s domestic labour market.

A helpful indicator of whether a foreign vessel meets the definition of “Coasting Trade” is whether the vessel is required to possess a coasting trade license. If it does, then it is very likely that the vessel meets the definition of “Coasting Trade.”

The following situations are examples of scenarios where a foreign crew on a vessel would require a Work Permit:

Where a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port. For example, a cruise ship which embarks in Vancouver, disembarks permanently some people in Victoria, and then disembarks the remainder in Anchorage would likely require a Work Permit.

Where a cruise ship embarks passengers at one Canadian port and then ends the cruise and disembarks at another Canadian port, regardless of whether the itinerary included a stop at an international port of call. For example, if passengers embark in Vancouver, make a stop in Juneau, Alaska, and then end the cruise in Victoria, a Work Permit will likely be required.

However, there are two important examples of where a work permit would likely not be required. These include:

Where a cruise ship’s itinerary includes at least one foreign port of call and ends at the original port of embarkation within Canada. For example, if passengers embark in Vancouver, make a stop in Seattle, and then disembark in Vancouver, a Work Permit is generally not required.

Where a cruise ship starts at a Canadian port of call and ends its itinerary at a foreign port of call. For example, if a cruise starts in Vancouver, and ends in Juneau, a Work Permit will generally not be required, provided that no passengers were permanently disembarked in a Canadian city along the way.

Air Travel

Generally, any foreign crew member arriving on a flight into Canada from an international point of origin or departing Canada on an internationally bound flight will not require a Work Permit. The Canada Transportation Act, SC 1996, c10 generally prohibits foreign crew members from performing domestic air service in Canada.

However, if a foreign company obtains a Ministerial Exemption to allow the foreign company to operate a publicly available domestic air service, then work permits may be required, depending on the circumstances. (Eg. if there is an emergency, a Work Permit will not be required.)

As well, foreign charter flights that are authorized to travel within Canada in order to transport people in the sports and entertainment industry will generally not require a work permit.

Foreign nationals wishing to work aboard Canadian flights travelling between points within Canada will generally require work permits.

Highway

The North American Free Trade Agreement governs whether foreign crew of a foreign land vessel require a Work Permit. NAFTA provides that foreign crew members working aboard vehicles operating within Canada may deliver or pick-up goods and passengers across the U.S. / Canada border so long as they do not pick up and deliver from one location to another point within Canada.

It is important to note that if the foreign national works for a Canadian vessel, then the foreign national will require a Work Permit.

What Obama Should Have Said

Posted on January 31, 2012 by Steven Meurrens

US President Barack Obama recently did a Question & Answer session on Google +. One of the questions that he was asked came from an individual whose husband was unemployed despite having an engineering degree and over 10 years of experience as a semiconductor engineer. She wanted to know why the government continued to issue work visas to people for similar positions even though her husband (and other Americans) are out of work.

President Obama answered the question by stating that he found it “interesting” that the individual’s husband couldn’t find a job. Mr. Obama even said that he would be interested in seeing her husband’s resume so that he could forward it on to companies who claim to face labour shortages.

The whole exchange can be viewed here:

In my opinion, Barack Obama should have answered the question by simply stating that he needed more information.

Where does this unemployed individual live? Is he willing to relocate for work? How far is he willing to relocate? Has he been applying for work? Where has he been applying for work? Why was he laid off three years ago? Has he been given any interviews? If yes, does he know why he was not hired? How has he tried to keep his skills up-to-date during the past three years that he has been unemployed?

In Canada, for example, the Labour Market Opinion test for whether the employment of a foreign national will have a negative impact on the Canadian labour market is not whether there is a Canadian with similar education and work experience anywhere in the country. Rather, it is whether or not the hiring of the foreign national would prevent a Canadian who has applied for the job, is qualified for the job, who has presented him/herself in a respectable manner to the employer, and, who, if necessary, is willing to relocate for the job, from taking the job.

Simply stating “foreigners shouldn’t be hired anywhere in the country until I get a job” is simply not a realistic, mainly because of the above-mentioned variables.

Immigration Consequences of the Omnibus Crime Bill

Posted on December 10, 2011 by Steven Meurrens

On December 5, the House of Commons passed Bill C-10, also known as the Safe Streets and Communities Act, or the Omnibus Crime Bill.

Bill C-10 introduces numerous changes which will affectCanada’s immigration system:

Changes to Sentencing Provisions

Crime	Sentence	Immigration Consequence
Sexual Interference (touching an individual who is under the age of 16)	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Invitation to Sexual Touching (for an individual who is under the age of 16)	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Sexual Exploitation (of a young person)	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Incest	Remains a hybrid offense with a maximum term of imprisonment of not more than 14 years.	Conviction results in inadmissibility for serious criminality.
Bestiality	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Making Child Pornography	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Distributing Child Pornography	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Possession of Child Pornography	Remains a hybrid offense with a maximum term of imprisonment of not more than 5 years.	Convictions results in inadmissibility for criminality.
Accessing Child Pornography	Remains a hybrid offense with a maximum term of imprisonment of not more than 5 years.	Conviction results in inadmissibility for criminality.
Parent or Guardian Procuring Sexual Activity where the Victim is Under the Age of 16	An indictable offense whose maximum penalty rises from not exceeding 5 years to 10 years.	Conviction now results in inadmissibility for serious criminality rather than general.
Parent or Guardian Procuring Sexual Activity where the Victim is Over the Age of 16 but under 18	Remains a indictable offense with a new maximum term of imprisonment of not more than 5 years.	Conviction results in inadmissibility for criminality.
Householder Permitting Sexual Activity where the Victim is Over the Age of 16 but under 18	Remains a indictable offense with a new maximum term of imprisonment of not more than 2 years.	Conviction results in inadmissibility for criminality.
Making Sexually Explicit Material Available to Child	New crime. Hybrid offense with a maximum term of imprisonment of not more than 2 years.	Conviction results in inadmissibility for criminality.
Luring a Child	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Agreement or Arrangement to Commit a Sexual Offense Against a Child	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Indecent Acts	Goes from being a summary offense to a hybrid offense with a maximum term of imprisonment of not more than 2 years.	Conviction results in inadmissibility for criminality.
Exposing Oneself to a Minor	Remains a hybrid offense with a maximum term of imprisonment of not more than 2 years.	Conviction results in inadmissibility for criminality.
Sexual Assault	Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.	Conviction results in inadmissibility for serious criminality.
Sexual Assault Causing Bodily Harm	Remains a hybrid offense with a maximum term of imprisonment of not more than 14 years.	Conviction results in inadmissibility for serious criminality.
Trafficking or Possessing for the Purpose of Trafficking a Schedule I or II substance	Remains an indictable offense with a maximum term of imprisonment of life.	Conviction results in inadmissibility for serious criminality.
Trafficking or Possessing for the Purpose of Trafficking a Schedule II in less than a prescribed amount	Becomes an indictable offense with a maximum term of imprisonment of not more than 5 years.	Conviction results in inadmissibility for criminality.
Importing and Exporting a Schedule I, II substance	Remains an indictable offense with a maximum term of imprisonment of life.	Conviction results in inadmissibility for serious criminality.
Producing a Schedule I substance	Remains an indictable offense with a maximum term of imprisonment of life.	Conviction results in inadmissibility for serious criminality.
Producing a Schedule II substance, other than marijuana	Indictable offense with a maximum sentence of imprisonment to life.	Conviction results in inadmissibility for serious criminality.
Production of Cannabis	Maximum sentence increases from not more than 7 years to not more than 14	Conviction now results in inadmissibility for serious criminality.

In noting the above, it is important to note that Flunitrazepam and Gamma-Hydroxybutyric acid (both common date rape drugs) have been added to Schedule I.

Banning Some Foreign Workers

The Minister shall now have the ability to issue instructions prescribing public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

Immigration Officers shall refuse visas if the Minister’s Instructions directs them to do so.

In essence, this is the re-introduction of Bill C-56 – The Preventing the Trafficking, Abuse, and Exploitation of Vulnerable Immigrants Act, discussed here.

Who Needs a Medical Exam to Study in Canada?

Posted on November 12, 2011 by Steven Meurrens

A couple days ago I received a question regarding whether someone who is a Hong Kong national needs a medical exam to study in Canada.

Foreign students have the same medical requirements as those that apply to work or simply visit Canada.

Generally, no medical examination is required for people who intend to visit Canada for six months or less unless they intend to work in certain designated occupations.

If the duration of the student’s visit is more then six months, then a medical examination will be required if they will also work in one of the above designated occupations, or, if they have resided or stayed temporarily for six or more consecutive months in a designated country or territory in the one year immediately preceding the date that they seek entry to Canada.

In other words, it is not a country of nationality or citizenship. It is a question of where you have been. An American who spent six months volunteering in a designated country will need a medical examination.

The designated country list can be found here.

As for the Hong Kong national, assuming that he spent six months or more in Hong Kong prior to seeking entry to Canada, then the answer would be “yes, he needs a medical if his intended period of studies is six months or more.”

Business Visitor or Work Permit Required?

Posted on October 7, 2011 by Steven Meurrens

Photo by johnny9s

On October 6, 2011, the Vancouver Sun ran a story about an individual who had to pay a $8,000 fine after he was convicted of misrepresentation under the Immigration and Refugee Protection Act (the “Act”). According to the story:

A U.S. citizen has been fined $8,000 for lying about his true purpose of coming to Canada last summer — to work at the Crankworx mountain bike festival in Whistler.

He also told 12 other Americans working for him at Crankworx to tell Canadian border officers that they were going to Whistler to meet friends and attend the Crankworx event.

….

[An e-mail that a border officer discovered] detailed the work the man and 10 others would be performing in Whistler, but [the person convicted] advised them to state on their declaration forms that they were coming to Canada for pleasure only to attend the event.

There is no question that the individual was counseling misrepresentation in advising his employees to state that they were visiting Crankworx for pleasure purposes instead of work.

What I don’t understand is why he thought that it was necessary for his employees to hide the fact that they would be working at Crankworx. Was it because he did not think that they would be issued Work Permits?

Because if that was his reason, then it is very unfortunate that he did not realize that none of his employees likely needed Work Permits in the first place, as they would have been eligible to enter Canada to work without a Work Permit as Business Visitors.

What is a Business Visitor?

The Business Visitor category facilitates the entry of a broad range of individuals who intend to enter Canada to engage in business or trade activities without entering the Canadian labour market. Business Visitors do not need Work Permits.

The general criteria is that:

(a) the employee must not intend to enter the Canadian labour market;

(b) the employee’s activity must be international in scope; and

(c) the primary source of the worker’s remuneration should remain outside Canada, the principal place of the worker’s employer should be outside of Canada, and the accrual of profits of the worker’s employer should be outside of Canada.

Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional, or business conventions, or meetings and soliciting business.

The Citizenship and Immigration Canada Manual specifically notes that “marketing” for Business Visitors includes trade fair and promotional personnel attending a trade convention.

Conclusion

I would assume that all of the individual’s employees have been declared inadmissible to Canada for misrepresentation. As they lied to immigration authorities about why they were entering Canada the declaration is probably justified.

Incredibly, because of the Business Visitor category, the employees never even needed Work Permits to begin with.

You Omit Information at your Peril

Posted on September 30, 2011 by Steven Meurrens

Flickr photo by kcolwell

It is important that applications be as thorough as possible in their applications. The Federal Court has consistently said that the onus is on visa applicants have one shot to put their best foot forward.

In Owusu v Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal put the principle differently, but in a way that is just as clear. It stated that applicants have the onus of establishing the facts on which their claim rests, and that they omit pertinent information from their written submissions at their peril.

Gonzalez Vazquez v. Canada (Citizenship and Immigration) is a perfect example of how important that it is to be as thorough as possible. There, an applicant wanted to convey in an Application to Immigrate to Canada for Humanitarian & Compassionate Considerations how detrimental removal would have been to her children. To this effect, she had the child’s teacher write a letter. The letter stated that:

[T]he same value is not placed on “safe and caring” schools, and children are often in danger of being harassed by others, or having their belongings stolen. Would their children be a target? It seems likely, since they have only known Canadian culture, and barely speak Spanish.

The immigration officer in rejecting the application considered this statement in the context in which it was made; the context that their inability to communicate in Spanish was likely to lead to harassment and their being targeted. The officer read it as an anti-bullying argument. Apparently, the applicant had wanted to convey that the language issue would have an adverse impact on the childrens’ ability to have proper access to and reasonable success at school. However, the letter did not clearly state this.

As the Federal Court noted, the applicants failed to raise the possible impact the children’s language deficiency in Spanish might have on their schooling and thus the officer was not required to consider it. The Court also stated

Perhaps this was an oversight by the applicants or their counsel, or perhaps it was not mentioned because their fluency in Spanish is not as lacking as the one teacher believes. In any event, the officer had to render a decision on the basis of the submissions and evidence placed before her by the applicants.

Applicants are entitled to rely on the submissions made by applicants and need not explore other possible issues that were not clearly and directly raised by them in their applications. The message to individuals submitting applications is clear: be as thorough and concise as possible.

It is also important to note that applicants should not invite immigration officers to conduct further investigations by providing the contact information of potential references. In Hui v. Canada, 2011 FC 1098, an applicant had presented to an immigration officer a list of numerous character references, and invited the officer to contact them. He did not provide any actual reference letters to accompany the contact information. Justice Barnes stated:

It was Mr. Hui’s obligation to present the strongest possible corroborating evidence. Instead of marshalling meaningful evidence, he attempted to shift the evidentiary burden to the Visa Officer to conduct further enquiries. Although it was perhaps not the most prudent statement for the Visa Officer to discount in advance the reliability of the sources Mr. Hui had identified, the fact remains that Mr. Hui had the obligation to produce that evidence. He had no legal right to impose an investigative burden on the Visa Officer and the Visa Officer cannot be faulted for declining Mr. Hui’s invitation.

A fettering argument might have arisen if Mr. Hui had produced any significant corroborating evidence which was then rejected in a perfunctory way.

Custodianship

Posted on September 16, 2011 by Steven Meurrens

Many minors wish to reside temporarily in Canada. Their reasons for doing so range from making extended visits to the more common scenario of studying in Canada as an international student.

In order to obtain a visitor visa or a study permit, minor applicants generally must supply two notarized declarations. The first is from the parent or legal guardian in the applicant’s country of origin. The second is from the minor applicant’s intended custodian in Canada, stating that arrangements have been made for the custodian to act in place of the parent and to support the child.

On September 15, 2011, Citizenship and Immigration Canada introduced an exception to the custodianship requirement to some minor’s aged 17 and older.

Under 17 Years of Age

If a minor is less than 17 years of age at the time of application, a Canadian custodian will be required. In addition to the information already required on the forms, custodians will also now have to confirm that they will reside within a reasonable distance to the minor applicant’s intended residence and/or school.

Minors Aged 17 Years or Older

Applicants who are between 17 years of age and the age of majority in the applicant’s respective intended province of residence will now no longer automatically be required to have a custodian. Instead, applications will be assessed on a case by case basis.

In considering whether custodianship is required, officers must consider:

Level of the applicant’s studies – Those attending secondary school will normally require a custodian.
Level of independence – If the applicant has previously lived abroad independently then he/she will not require a custodian.
Financial capacity.
Travel experience
Accessibility of parent(s)/guardian(s)
Informal arrangements – Whether arrangements less formal than custodianship have been made to provide support and care for the minor student.
Risk environment.

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Category Archives: Temporary Residency