Considering the difference in processing times as shown below, I am sure many potential Japanese visa applicants are probably saying  しまった.

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. 

Jason Kenney, the Minister of Citizenship and Immigration Canada (the “Minister”), has made several significant changes toCanada’s immigration system.  Many of these are substantive (who is eligible to immigrate), and will likely be changed by future ministers and governments.  His involvement in the creation and expansion of the use of Ministerial Instructions, a procedural change, however, may be his most enduring legacy.

In 2008, amendments to IRPA provided that the Minister could issue instructions to immigration officers (“Ministerial Instructions”) regarding which applications were eligible for processing.  This overturned the government’s long standing obligation to process all eligible applications in the order in which they were received. The Minister was further empowered to issue Ministerial Instructions to limit the number of applications processed, accelerate some applications or groups of applications, and return applications without processing them to a final decision.

It was through Ministerial Instructions that Citizenship and Immigration Canada (“CIC”) reduced and capped the number of occupations eligible for the Federal Skilled Worker Program, capped the number of Investor Applicants, suspended the Entrepreneur program, and put a moratorium on parental and grandparent applications.  The Minister was able to do all of this without consulting Parliament, or amending IRPA and its regulations.

Division 54 of Part 4 of the BIA expands the role of Ministerial Instructions by further providing that the Minister can give instructions establishing and governing classes of permanent residents as part of the economic class.  In other words, while the Canadian Experience Class was created after extensive consultation and notice by amending the Immigration and Refugee Protection Regulations, future economic programs will be established through the sole discretion and timing of the Minister.

The BIA also provides that the User Fees Act, which requires that the Government of Canada take certain consultative steps before establishing fees, does not apply in respect of fees set by Ministerial Instructions created economic streams.  Furthermore, the BIA changes will allow for the retrospective application of certain Ministerial Instructions, if those regulations and instructions so provide.

Finally, the BIA explicitly provides that a Ministerial Instruction may set the number of applications in an immigration category that will be processed in any year can be zero.

As the media becomes aware of some of the above changes in the BIA much will be written about whether Jason Kenney is centralizing power too much.  Others will write about whether people will still want to apply to immigrate toCanadaif they know that the government may at a future date decide to not process their applications.

Minister Kenney has likely amended IRPA because he has specific policy and program objectives that he believes necessitate the ability to act quickly and decisively.  He clearly believes that Ministerial Instructions, rather than regulatory changes, are the way to achieve this.

However, as noted above, there will be a time when Minister Kenney is not the Minister of Citizenship and Immigration Canada.  There will also be a time when the Conservative Party of Canada is notCanada’s governing party.  The introduction and the expansion of the power to issue Ministerial Instructions will ensure that in the future a New Democratic Party or Liberal Party immigration minister will be able to quickly introduce, change, and effectively cancel immigration streams without having to consult Parliament.  There is no way that any future immigration minister, regardless of political stripe, will give this up this power that Jason Kenney has given them. Canada’s immigration system is not going back.

And that is why I think that the Ministerial Instructions will be Jason Kenney’s most enduring legacy.

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  

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.

]]> http://www.smeurrens.com/2012/04/skilled-worker-non-processing-letters-going-out/feed/ 3 http://www.smeurrens.com/2012/04/wilfred-laurier-on-immigration/ http://www.smeurrens.com/2012/04/wilfred-laurier-on-immigration/#comments Sun, 15 Apr 2012 03:33:59 +0000 Steven Meurrens http://www.smeurrens.com/?p=3320 Continue reading →]]>

The above picture of Wilfred Laurier, a former Prime Minister of Canada and member of the Liberal Party of Canada, is currently making the rounds on the internet accompanied by his famous passage:

In the first place, we should insist that if the immigrant who comes here in good faith becomes a Canadian and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet a Canadian, and nothing but a Canadian… There can be no divided allegiance here. Any man who says he is a Canadian, but something else also, isn’t a Canadian at all. We have room for but one flag, the Canadian flag… And we have room for but one sole loyalty and that is a loyalty to the Canadian people.

People that are spreading this and citing this passage about undivided loyalty with fervour are I’m sure thinking of immigrants from certain countries with value systems very different to ours.  However, I wonder if they have actually considered the policy implication of the above passage – which is obviously whether Canada should ban its citizens from being dual (or triple) citizens?

What do you think?  Should Brett Hull, Kaya Jones, John Aimers, Peter Jennings, Megan Follows, Brian Burke, Jim Carrey, etc. have to choose?

And, if you believe in what Mr. Laurier said, do we not have room in Canada for the above individuals?

[UPDATE]

As was recently pointed out to me, in attributing the above quote and picture to Wilfred Laurier I fell for a popular myth circulating in certain circles.

Mr. Laurier did not say the above.  It was Theodore Roosevelt.

http://www.snopes.com/politics/quotes/troosevelt.asp

Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society.  The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective.  If it is, then the government must demonstrate that the means to achieve its objective are proportional.  Proportionality requires that:

1. The means be rationally connected to the government’s pressing and substantial objective;
2. That the means to achieve the objective involve a minimal impairment of Charter rights; and
3. There must be proportionality between the infringement and the objective.

As the Court noted in Dore, the judiciary has had difficulty applying Oakes in a non-legislative context.  What, for example, is the pressing and substantial objective of an administrative decision?  Who has the burden of defending that decision?  The difficulty is further exemplified in immigration law by the fact that it is often not the tribunal itself that is a party to a proceeding.

Accordingly, the Supreme Court has proclaimed that in administrative law decisions, the reasonableness standard should apply to determining whether a Charter limitation is justified.  The Court adopted the reasonableness standard over the correctness standard because a) it reiterated that administrative law involves a tribunal’s complex interpretation of its enabling statute, of which the tribunal is the most familiar, and b) because the Court was concerned that adopting the correctness standard would lead to judicial review becoming a hearing de novo.

As such, where an administrative tribunal limits a Charter right, then the reasonableness standard will apply to determine whether that limitation is nonetheless constitutional.  The reasonableness analysis will center on proportionality, or ensuring that a tribunal interfere with a Charter guarantee no more than is necessary given a statutory objective.

It may be that the change does not result in any practical difference.  As the Court noted, “a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality…… in both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”

On the other hand, moving away from a rigid formula to a more flexible reasonableness standard may actually lead to a flurry of Charter challenges, as reasonableness decisions are inherently factually and contextually based.

Indeed, I can think of a few areas that I think may be ripe for some Charter challenges under the new test.

On March 21, 2012, the Government of Quebec announced that it is capping the maximum number of applications that it will receive in its economic programs.  The programs that will be subject to a cap are the Quebec Investor Program, the Quebec Entrepreneur Program, the Quebec Self-Employed Worker Program, and the Quebec Skilled Worker Program .  The introduction of the caps follows a dramatic increase in applications to these programs following the implementation of caps to corresponding federal programs.

The caps will last from March 21, 2012 to March 31, 2013.

During this time, the maximum number of applicants that can apply to immigrate to Quebec in the business stream are:

• Investors – 2700
• Entrepreneurs and Self-Employed Workers – 215

Meanwhile, for the purpose of determining the cap, the Quebec Skilled Worker Program has been divided into three groups.

There will be no limit on the number of people who can apply to the Quebec Skilled Worker Program – Group 1.  To be eligible for Group 1, an applicant must be (please note that most of the following requirements contain specific additional provisions that are beyond the scope of this bulletin):

• A temporary foreign worker in Quebec who meets the requirements of the Quebec Experience Class (“PEQ”);
• A foreign graduate in Quebec who meets the eligibility requirements of the PEQ;
• A foreign student in Quebec who is eligible to apply for a selection certificate under the regular skilled workers program;
• A participant in Quebec under an International Experience Canada program who is eligible to apply under the regular skilled worker program;
• A recent graduate in an area of training that is eligible for 12 or 16 points under the Quebec Skilled Worker Program selection grid;
• In possession of an employment offer made by a Quebec employer which has been validated by the Ministère de l’Immigration et des Communautés culturelles;
• Be someone who has an application for permanent residence in Canada in processing that Citizenship and Immigration Canada has determined is admissible for processing; or
• Be a former Canadian citizen residing in Quebec who is submitting an application in Quebec.

Only 14,300 people will be eligible to apply to the Quebec Skilled Worker Program – Group 2.  To be eligible for Group 2, an applicant must be:

• A recent graduate in a field of training that is eligible for 6 points under the Quebec Skilled Worker Program selection grid; or
• A recent graduate from a Quebec institution.

Group 3 will consist of individuals who used to be eligible for the Quebec Skilled Worker Program but do not fall under Group 1 or Group 2.  The Government of Quebec will not accept applications from these individuals this year.

More information about the cap can be found on the Government of Quebec website here: http://www.immigration-quebec.gouv.qc.ca/en/informations/applications-receipt.html

Please contact us if you have any questions or concerns about this change.