Pivot Legal

A phenomenon often observed by immigration practitioners is the persistence of misconceptions among the public concerning what programs are available under Canadian immigration law. Some can be attributed to mistaken assumptions regarding discretionary components of the Immigration and Refugee Protection Act, such as section 25(1) - more commonly known as the 'Humanitarian & Compassionate' or 'H&C' section. Other misunderstandings, such as "fiancee-sponsorship" , can be traced to programs that existed under previous immigration policies, but which have since been amended or removed entirely from the current legislation. Though such programs may have entered collective public/community knowledge from a legitimate source, subsequent alterations to the policy do not always get communicated in as successful a manner.

Though it is too early to know at this point, it is likely that the Federal Skilled Worker ('FSW') program - which has recently undergone considerable changes in its structure - will become yet another source for confusion among applicants. I would therefore strongly encourage potential applicants to review the program material for themselves on the Citizenship and Immigration Canada ('CIC') website.

Some of the changes in this program are somewhat 'cosmetic' in nature - for example, many FSW applicant will now have to send their applications to processing centres in Canada, rather than their visa office. Others, however, are more critical. One of these is the massive reduction of occupations / work experience which are eligible for consideration under the FSW program. I situations where an individual does not have a qualifying 'arranged employment' as specified in the program, the range of occupations/work experience that can be used for the purposes of accumulating points and qualifying as a FSW has been reduced to 38 occupations, as set out by CIC. This list is subject to change at anytime by way of 'Ministerial Instructions' from Canadian authorities. Some important exceptions exist, however, so it is important to review the program changes carefully. 
For example, if an individual has FSW 'arranged employment' as defined under Canadian law, however, these restrictions, at the time of this article, do not apply.

The potential impact of these changes on who will be able to enter Canada is considerable. Though there are many other venues now available for potential migrants - the new Canadian Experience Class ('CEC') for example, and the various Provincial Nominee Program ('PNP') Classes - it is important to point out that many of these programs require some form of previous, existing, and/or prospective Canadian Employment.

Most of the various PNP (skilled worker) classes have - as a central component - the requirement that a prospective applicant have a job offer from a qualifying Canadian employer. For most of these programs, the employer must submit a 'nomination application' for the foreign national, to the responsible provincial agency. Once the agency approves the application, and issued a 'nomination certificate', the employer can then provide the certificate to the foreign national, who can apply for permanent residence. In the event that the employer cancels the nomination prior to the approval for permanent residence, however, the foreign national may well be denied.

Similarly, among other requirements, the CEC requires an individual to have worked legally in Canada, in a qualifying occupation and for a qualifying employer, for either one or two years, depending on the type of CEC class that the applicant has applied for. The work experience must be within 36 months (for the Temporary Foreign
Worker Stream) or 12 months (for the Post Graduate Stream) prior to
submitting the application. Though the applicant need not continue to work for the employer once they have met this requirement, there is no provision for 'substituted evaluation' under this program - in other words, barring the implementation of alternative strategies that may potentially be available in a given case (like H&C requests), an applicant without Canadian work experience will not (as suggested by the name) likely qualify for consideration under the CEC.

Viewed from this perspective, therefore, though there is a range of new choices, the reality is that, for the vast number of potential applicants (who do not have Canadian work experience or Canadian arranged employment), the options that are actually available have in fact narrowed considerably. It is therefore imperative that prospective applicants carefully assess or re-assess their qualifications in light of recent developments, prior to applying under these new regimes.

Pablo A. Irribarra, Barrister & Solicitor

March 14, 2009

Disclaimer

The information contained in this article is intended to provide general information only. It does not constitute formal legal advice or give rise to any solicitor-client relationship. The author and Pivot Legal LLP disclaim any and all liability resulting from reliance upon this general information. The author and Pivot Legal LLP strongly recommend seeking formal legal advice from a competent solicitor before acting upon any information that may appear in this article.