FEDERAL REG

SOR/2016-298: Regulations Amending the Immigration and Refugee Protection Regulations (Skilled Worker)

REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE

Registered
November 18, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Immigration and Refugee Protection Regulations (the Regulations) have been amended to make changes to the requirements for offers of employment in the Federal Skilled Worker Class (FSWC) and Federal Skilled Trades Class (FSTC), as well as to improve clarity and consistency of regulations for these cla... (Click for more)


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Published on November 18, 2016

Bill Summary

SOR/2016-298: Regulations Amending the Immigration and Refugee Protection Regulations (Skilled Worker)

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Immigration and Refugee Protection Regulations (the Regulations) have been amended to make changes to the requirements for offers of employment in the Federal Skilled Worker Class (FSWC) and Federal Skilled Trades Class (FSTC), as well as to improve clarity and consistency of regulations for these classes and the Canadian Experience Class (CEC). Background Express Entry (Federal Skilled Worker Class, Federal Skilled Trades Class, Canadian Experience Class) The Federal Skilled Worker Class is open to foreign nationals with one year of experience in an occupation at Skill Level A (Professional) or B (Technical/Trades/Paraprofessionals) or in Skill Type 0 (Management) of the National Occupational Classification. Foreign nationals are assessed against a points-based selection grid that takes into consideration the applicants’ official language ability, education, work experience, age, whether they have a job already arranged in Canada (arranged employment), and their overall adaptability (e.g. previous work or study in Canada, spouse’s language ability, relatives in Canada, etc.). The Federal Skilled Trades Class emphasizes practical training and work experience, rather than formal academic education, by selecting foreign nationals on a pass/fail basis who will help meet Canada’s skilled trades labour needs. This class is open to foreign nationals with experience in specified skilled trade occupations. To be members of the class, foreign nationals must meet language requirements; must have either a one-year qualifying job offer or a provincial/territorial certificate of qualification in a skilled trade; must have at least two years of work experience as a qualified skilled tradesperson in the five years preceding the date of their permanent resident application; and must satisfy the employment requirement of that occupation as described in the National Occupational Classification. The Canadian Experience Class is a pass/fail program with the objective of allowing skilled temporary foreign workers, including previous students, who have worked in a skilled occupation in Canada and who are proficient in either English or French, to remain in Canada as permanent residents. On January 1, 2015, ministerial instructions were introduced to manage application intake for permanent residence in the Federal Skilled Worker Class, the Canadian Experience Class and the Federal Skilled Trades Class and prevent application backlog. This system, known as Express Entry, added a pre-application stage with its own requirements which enables the selection of the candidates who are most likely to succeed in economically establishing themselves in Canada. Both the Federal Skilled Worker Class and the Federal Skilled Trades Class include provisions on offers of employment, which can help applicants meet the criteria and other requirements applicable to these classes. Section 82 of the Regulations sets out the circumstances under which a foreign national will receive points towards being selected in the Federal Skilled Worker Class for having received an offer of employment, and subsection 87.2(3)(d) of the Regulations sets out the circumstances under which a foreign national who does not hold a provincial certificate of qualification in a skilled trade application may use an offer of employment to meet the requirements of the Federal Skilled Trades Class. (see footnote 2) Requirement for a Labour Market Impact Assessment Typically, an offer of employment must be supported by a positive assessment, commonly known as a Labour Market Impact Assessment (LMIA), issued by Employment and Social Development Canada (ESDC) to the employer if ESDC determines that the foreign national’s employment will not adversely impact the Canadian labour market. This process is described in section 203 of the Regulations and is similar to the process for obtaining a work permit. It includes an assessment of the genuineness of the employer and the job offer, a consideration of labour market factors, and a review of the employer’s previous compliance. If the foreign national is already authorized to temporarily work for the employer issuing the job offer, there are two instances, under the Regulations, where the offer does not need to be supported by an LMIA: (1) the foreign national was initially hired by the employer based on a work permit for which they had obtained an LMIA (in which case that LMIA is considered sufficient); and (2) the foreign national’s work permit was LMIA-exempt because of an agreement between the Government of Canada and the government of another country or the government of a province or territory. However, prior to these regulatory changes and concurrent revisions to the Express Entry Ministerial Instructions, the Ministerial Instructions required all candidates who wished to benefit from the arranged employment factor — either to be accepted in the Express Entry pool and to be eligible to receive an invitation to apply, or to obtain points under the Comprehensive Ranking System — to have had their employer obtain a positive LMIA, even those candidates who would otherwise have been exempt from this process under the Regulations. This LMIA could either have been obtained in support of a work permit application (i.e. temporary residence), or prior to an application for permanent residence. By operation of both the Regulations and the Ministerial Instructions, where a foreign national, whose work permit was LMIA-exempt because the work was considered to serve Canadian interests (section 205) [and therefore did not require that the employer demonstrate that a Canadian was not available, as a requirement of the LMIA], wished to benefit from the arranged employment factor in connection with their permanent residence application, the job offer had to be supported by an LMIA. Those employers could be reluctant to undergo the LMIA process, putting foreign nationals on an LMIA-exempt work permit at a disadvantage, despite many of them having potential to economically establish in Canada. Term of arranged employment offers The prior requirement that offers of arranged employment be for an indeterminate (or permanent) length of time had also resulted in barriers to certain foreign nationals who otherwise have similarly demonstrated a strong potential for economic establishment. The contemporary job market, and the reality of highly skilled contract-based employment has meant that permanent job offers are no longer the standard hiring practice in many industries and occupations. Objectives The objectives of these changes are (1) to better align program requirements with program intent by ensuring job offer points are accessible to candidates who can demonstrate that they have an acceptable job offer, which contributes to the assessment of their likelihood of economic establishment; and (2) to make other regulatory amendments to clarify policy intent or make the Regulations more consistent. Description The definition of arranged employment in subsection 82(1) of the Regulations has been amended to require job offers to be for a minimum of one year rather than indeterminate. Amendments to paragraph 82(2)(b) and subparagraph 87.2(3)(d)(iii) of the Regulations allow temporary foreign workers who are working in Canada under a work permit issued under paragraphs 204(a) or (c) or section 205 of the Regulations (which are exempt from the requirement to obtain a supporting LMIA) to qualify for arranged employment in the Federal Skilled Worker Class, and to meet the requirement outlined in paragraph 87.2(3)(d) for the Federal Skilled Trades Class, provided that they have accumulated one year of work experience with the employer issuing the offer of employment and for which they are currently working. The following regulatory amendments will improve clarity and consistency of the Regulations. They do not change how applications are processed. The French version of section 50, which sets out document requirements for foreign nationals seeking to become permanent residents, is amended by using “cherche à devenir” instead of “entend devenir” as the French equivalent of “seeking to become.” Various provisions of the Regulations are amended so that the length of time the language test results are accepted for the purpose of demonstrating language proficiency is the same across all of the economic immigration programs, whether they are used by principal applicants or, for the purpose of adaptability points for spouses, for the Federal Skilled Worker Class. For example, it is clarified that results must be less than two years old for spouses as well as principal applicants. The Regulations are amended to allow the Minister to designate both language evaluating organizations and the particular tests offered by these organizations for which results are considered conclusive evidence of the language proficiency of the applicant. The Regulations are amended to clarify that job offers used to support a permanent residence application in the Federal Skilled Worker Class and the Federal Skilled Trades Class, that are supported by an LMIA that was previously obtained in support of a work permit, must be made by one of the employers named on the work permit. This will help to clarify that if an applicant wishes to use this LMIA to support their application for permanent residence through either of these two classes, they must work for the employer named in the LMIA when the permanent resident visa is issued. The Regulations are amended to clarify that an LMIA used in support of a permanent residence application in either the Federal Skilled Worker Class or the Federal Skilled Trades Class must not be expired. This rule does not apply to a foreign national who obtained the (now expired) LMIA in the course of an application for a work permit, if that work permit is still valid and the foreign national is still in Canada working on that work permit for the same employer who initially obtained the LMIA and has received a job offer from that employer. The Regulations are amended to clarify that an LMIA used in support of a permanent residence application in either the Federal Skilled Worker Class or the Federal Skilled Trades Class must not have been revoked or suspended. The Regulations are amended to clarify that the reference to a credential for the Federal Skilled Worker Class means that the minimum educational credential is at least the equivalent to a Canadian secondary school diploma. The Regulations are amended to remove the obsolete reference to “and any period of full-time study or training” from paragraph 87.1(3)(c) of the Regulations to reduce any confusion, as the separate student stream of the Canadian Experience Class program was previously amalgamated with the work stream. “One-for-One” Rule It is expected that certain businesses will see some savings in administrative time and costs as a result of these regulatory changes. Specifically, it is estimated that some employers will no longer be required to request a LMIA from ESDC for their temporary foreign worker employees to qualify for arranged employment. It is estimated, based on the average number of temporary foreign workers with eligible work permits who transitioned to permanent residence through the Federal Skilled Worker Class or the Federal Skilled Worker Class in 2014 and 2015, that 1 367 of these temporary foreign workers who were previously authorized to work as a temporary foreign worker under section 205 of the Regulations will no longer require their employer to apply for an LMIA for the individual to benefit from arranged employment under either the Federal Skilled Worker Class or the Federal Skilled Trades Class. While the LMIA to support a permanent residence application does not require a fee, a recent and focused consultation of employers was conducted to ascertain the level of effort required to obtain an LMIA. The employers consulted include a national network of organizations supporting francophone employers and employers looking to hire francophones, a national association representing 97 public and private not-for-profit Canadian universities and a multinational video game developer, all of which are likely to benefit from the LMIA exemption for holders of work permits delivered under section 205 of the Regulations. The monetary value of the reduction in administrative burden to employers is estimated to be $1.8 million annually, resulting from the 1 367 reduction in LMIA required of employers per year, with each LMIA costing employers $1,308 in administrative costs. The “One-for-One” Rule applies only to administrative burdens imposed on enterprises that engage in commercial activities, and not to those imposed on organizations that engage in activities for a public purpose, such as colleges or universities. Out of the 1 367 temporary foreign workers who will no longer require an LMIA, it is estimated that 51 are university employees such as professors, lecturers and postdoctoral fellows. The monetary value of the reduction in administrative burden to employers other than universities is estimated to be $1.7 million dollars annually. For the purposes of the “One-for-One” Rule, this comprises an “OUT” of $1.2 million annualized administrative costs in constant 2012 dollars. It should be noted that these estimates have been calculated based on recent patterns and any possible future changes to permanent residence program policy or admissions could affect the accuracy of these estimates. Small business lens The small business lens does not apply to this proposal, as there are no costs placed on small business. Consultation The amendments to the Regulations were developed based on extensive consultations with stakeholders since the launch of Express Entry. Regular engagement activities took place through the federal/provincial/territorial economic and policy working groups, which hold teleconferences approximately on a monthly basis as well as face-to-face meetings twice a year. In addition, ongoing feedback is received through the Employer Liaison Network, which liaises with employers and stakeholders on a day-to-day basis. Furthermore, Immigration, Refugees and Citizenship Canada (the Department) held nine national and regional consultations in July and August 2016 to solicit feedback on the then proposed reforms. Provinces, territories, employer groups such as the Canadian Chamber of Commerce, francophone communities, academics, immigration lawyers, and other stakeholder groups were consulted. Participants broadly endorsed the reduction of the job offer requirement to one year as well as the proposed LMIA exemptions for candidates who are exempt for temporary residence purposes. Stakeholders felt that these changes would enable employers in higher-skilled occupations and contract-based industries to access Express Entry candidates. They also noted that the LMIA exemptions would facilitate the pathway to permanent residence for high-value temporary residents already working in Canada. The Department will continue to seek feedback on Express Entry, including the impact of these reforms, through the Employer Liaison Network. Rationale In the contemporary job market, contract-based or fixed-term employment is the standard hiring practice for many industries and occupations. Highly skilled occupations, including university professors, physicians and graphic artists, were disproportionately affected by the requirement for indeterminate job offers. This has resulted in highly skilled foreign nationals being at a disadvantage in the immigration system despite having the potential to establish economically in Canada. Evidence also suggests that the benefits of a job offer as an indicator of likely economic establishment are concentrated in a relatively short period after landing and are less meaningful in the longer term. All else being equal, candidates with a fixed-term job offer are no less likely to establish economically than those with permanent job offers. A one-year job offer duration requirement enables the Department to identify applicants who are well positioned to establish economically, without unduly affecting contract-based workers and their employers. Employers and foreign nationals have expressed concern with existing LMIA requirements related to permanent residence applications, particularly for foreign nationals who are working in Canada temporarily based on LMIA-exempt work permits to work for a specified employer who has offered them a long-term job. That same employer had to undergo the LMIA process in order to support the permanent residence application of the foreign national, which includes advertising and recruitment activities. In contrast, employers who employ foreign nationals temporarily, based on a work permit requiring an LMIA, were not required to obtain a new LMIA to support a permanent residence application, despite the LMIA only having a validity period of six months. Eliminating the LMIA requirement for certain LMIA-exempt foreign workers who have received a qualifying job offer from their current employer will enhance fairness around job offer requirements in the permanent residence application process. Any potential concerns with the removal of the LMIA requirement with regard to the genuineness of the job offer are mitigated by the fact that there is an established employer-employee relationship authorized with a work permit and that the relationship is documented in a previous work permit application process. A preliminary consideration of Gender-based Analysis Plus (GBA+) implications did not highlight any significant impacts. Implementation, enforcement and service standards The coming-into-force date of the regulatory amendments is November 19, 2016. Contact Laurie Hunter Director Economic Immigration Policy and Programs Immigration Branch Immigration, Refugees and Citizenship Canada 365 Laurier Avenue West Ottawa, Ontario K1A 1L1 Telephone: 613-437-6181 Fax: 613-941-9323 Email: [email protected] Footnote a S.C. 2013, c. 16, s. 4 Footnote b S.C. 2001, c. 27 Footnote 1 SOR/2002-227 Footnote 2 Arranged employment is not a consideration for the Canadian Experience Class.

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