CIC plans overhaul of Immigration and Refugee Protection Regulations - International Law Office

Introduction
Changes to Federal Skilled Worker Class
Creation of Federal Skilled Trades Class
Liberalisation of Canadian Experience Class


Introduction

On August 18 2012 Citizenship and Immigration Canada (CIC) published proposed regulatory amendments in the Canada Gazette, which will significantly alter the Federal Skilled Worker Class, create a new Federal Skilled Trades Class and liberalise the Canadian Experience Class. A detailed summary of these proposed changes is provided below.

On July 1 2012 CIC imposed a temporary pause in the acceptance of new Federal Skilled Worker Class applications (for further details please see "Pause on federal skilled and federal immigrant investor worker applications"). The reasons given were to allow CIC to manage inventory pressures and to align future intake with the implementation of proposed regulatory changes to the class. However, no details of the proposed regulatory changes were provided until now.

The recently published proposed regulations now confirm that CIC intends to rebalance the number of points given among the existing criteria for the class, and to impose additional requirements on some criteria before points will be awarded.

Changes to Federal Skilled Worker Class

Minimum language proficiency standards and higher points for language ability
The proposed regulations require minimum language abilities in order to qualify as a federal skilled worker. It also significantly increases the maximum points awarded for fluency in one official language from 16 points to 25 points. Although the minister of citizenship, immigration and multiculturalism will publish the language threshold at a later date, this is expected to be set at Level 7 of the Canadian Language Benchmark (CLB) for all four abilities (ie, speaking, listening, reading and writing) - this corresponds to "adequate intermediate proficiency".

The proposed regulations reduce the maximum points for the second official language from eight to four for abilities at CLB 5 and above. This reflects CIC's research and feedback, which found that this factor did not contribute to positive economic outcomes for most applicants.

Age criteria to favour younger workers
CIC states that younger immigrants tend to integrate more rapidly into the labour market and usually spend longer contributing to Canada's economy. As a result, the proposed regulations favour younger immigrants by awarding a maximum of 12 points for applicants aged 18 to 35 (whereas applicants of between 21 and 49 years of age receive maximum points under the present criteria). Applicants aged between 36 and 46 will receive a reduced number of points, with those aged 47 years or older receiving no points.

Fewer points for foreign work experience
CIC states that foreign work experience is largely discounted by Canadian employers and is a weak predictor of economic success. Therefore, the proposed regulations reduce the total points awarded for work experience from 21 to 15 and will increase the years of experience required to achieve maximum points from four to six years.

Foreign credential evaluation required for education points
The proposed regulations authorise the approval of organisations and professional bodies as designated credential evaluators. These designated evaluators will authenticate individual foreign credentials and determine their equivalent in Canada for the purposes of the Federal Skilled Worker Class.

Where an applicant has listed a regulated occupation in his or her application, he or she will be required to submit the relevant designated professional body's foreign credential evaluation establishing that the foreign credential is equivalent to the Canadian educational credential required to practise in that occupation. Applicants in non-regulated occupations will be required to submit a foreign educational assessment provided by a designed organisation to demonstrate that their educational credential is equivalent to a Canadian educational credential.

Applicants whose credentials do not exist in Canada or do not have a credential equivalent to the completed Canadian version in Canada will not be eligible under the class.

Labour market opinion required for arranged employment
CIC states that applicants who immigrate with a valid job offer earn 79% more in wages in the first three years after arrival than people without arranged employment. However, the potential for fraud requires a more rigorous assessment of the employer and the job offer.

The proposed regulations will require employers to apply for a labour market opinion from Human Resources and Skills Development Canada (HRSDC) on behalf of an applicant, in the same manner as temporary foreign workers. The arranged employment opinion being used at present will be abolished. Federal Skilled Worker Class applicants who obtain an approved labour market opinion will continue to receive 15 points (10 points for arranged employment and five for adaptability).

Section 82(2) of the existing regulations defines 'arranged employment' to include a skilled worker in Canada who holds a work permit that is exempt from a labour market opinion and is issued pursuant to:

• R204(a) - under international agreements such as the North American Free Trade Agreement or the General Agreement on Trade in Services;
• R205(a) - including C10 (significant benefit to Canada) and C12 (intracompany transferee work permits); or
• R205(c)(ii) - for reasons of public policy relating to the competitiveness of Canada's academic institutions or economy, including:
  • C41 (work permits for spouses of skilled workers);
  • C42 (work permits for spouses of foreign students);
  • C43 (post-graduation work permits for students); and
  • C25 (off-campus work permits for students).

Applicants who hold one of these types of exempt work permit and have a qualifying job offer do not require a labour market opinion or an arranged employment opinion in order to establish arranged employment.

The proposed regulations limit the definition of 'arranged employment' to skilled workers who hold an approved labour market opinion or hold a work permit that is exempt from the labour market opinion requirement under R204(a); such work permit holders must also establish that their employer is making a qualifying (ie, permanent and non-seasonal) job offer. No explanation has been given for the elimination of the other exempt work permits from the definition of 'arranged employment'.

Change in adaptability factors
As before, the total number of adaptability points will remain at 10. Under the proposed regulations, adaptability points may be awarded as follows:

• Maximum points (10, up from five) are awarded if the principal applicant has qualifying prior work experience in Canada (a minimum of one year at National Occupational Classification (NOC) 0, A or B).
• As before, an accompanying spouse or common-law partner who has qualifying prior work experience in Canada is awarded five points.
• Points for previous study in Canada by the principal applicant or accompanying spouse or common law partner remain at five. Such study must have been on a full-time basis in a programme of at least two years, earning the necessary credits to successfully complete two years of study. For the purposes of adaptability, secondary school is accepted as an eligible programme of study.
• As before, five points are awarded if the principal applicant has arranged employment.
• As before, five points are awarded if the principal applicant, spouse or common law partner has a relative in Canada (although the relative must now be aged 18 or older). No adaptability points are awarded for spouses who are Canadian citizens or permanent residents of Canada, since they can sponsor applicants through the Family Class.
• Five points are awarded if the accompanying spouse or common law partner has language ability in either official language at CLB 5 or higher.
• Adaptability points for the accompanying spouse or common law partner's education (previously worth three to five points) are awarded.

Creation of Federal Skilled Trades Class

The new Federal Skilled Trades Class will allow skilled tradespeople with experience in specific occupational areas to seek permanent residence. It will be open to the following NOC B occupational areas:

• the industrial, electrical and construction trades;
• the maintenance and equipment operation trades;
• supervisors and technical occupations in natural resources, agriculture and related production;
• processing, manufacturing and utilities supervisors and central control operators;
• chefs;
• cooks;
• bakers; and
• butchers.

Applicants must satisfy four requirements:

• The applicant must have a qualifying offer of employment (from up to two employers in Canada) with a collective duration of at least one year, or a certificate of qualification from a provincial or territorial apprenticeship authority. Where an offer of employment is used, the employer must obtain a positive labour market opinion.
• The applicant must possess language proficiency, as evidenced by a test from a designated language testing organisation which establishes that the applicant's abilities meet the threshold set by the minister in all four language abilities. Initially, the threshold is expected to be set at CLB 5.
• The applicant must have at least 24 months' work experience (after qualification or certification in the country where the work was performed, if applicable) in the same skilled trade within the past five years.
• The applicant must possess qualifications that satisfy employment requirements as described in the NOC, except for certification and licensing requirements, which are difficult to obtain outside Canada.

As with the Federal Skilled Worker Class, the proposed regulations would enable officers to provide a substituted evaluation if they believe that the applicant's ability or inability to meet the minimum requirements of the class is not a sufficient indicator of whether he or she may become economically established in Canada.

Liberalisation of Canadian Experience Class

The proposed regulations reduce the existing work experience requirement for temporary foreign workers under the Canadian Experience Class from the current requirement of 24 months of full-time employment (or equivalent) in Canada to 12 months - this period of employment must have occurred in the preceding 36 months. Only applicants with NOC 0, A or B work experience will qualify for this class.

The current class regulations allow applicants to compensate for a lower level in one language ability with a higher level in another, resulting in a process that CIC considers to be confusing for both applicants and visa officers. Instead, the proposed regulations set a minimum language threshold in each of the four language abilities (ie, speaking, reading, writing and listening). Although the minister will publish the language threshold at a later date, it is expected to be set at CLB 7 for NOC 0 and A applicants and CLB 5 for NOC B applicants, as under the existing regulations.

For further information on this topic please contact Henry J Chang at Blaney McMurtry LLP by telephone (+1 416 593 1221), fax (+1 416 593 5437) or email (hchang@blaney.com).