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IMPACT – MEDIUM
What is the change? In the latest Express Entry draw on Sept. 18, the minimum qualifying score dipped to its lowest level to date at 450 points.
What does the change mean? The decrease in minimum qualifying scores means that some applicants who do not have an approved Labour Market Impact Assessment are able to obtain an invitation to apply for permanent residency.
Background: 1,545 candidates were issued invitations to apply in the latest draw, the 17th since the Express Entry program took effect in January. Applicants are ranked on a 1,200-point scale based on education, skills and language ability. Candidates earn 600 points if they have an LMIA-based job offer or provincial nomination. The early draws required minimum scores in the high 800s. Since June, all draws have recorded minimum scores below 600, indicating that some applicants were selected without an LMIA-supported job offer or provincial nomination.
BAL Analysis: The latest results give employers some positive news and more flexibility to potentially avoid the LMIA process, despite the continued advantage the system gives to those with an LMIA-approved job offer.
This alert has been provided by the BAL Global Practice group and our network provider located in Canada. For additional information, please contact your BAL attorney.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? Canada is requiring police clearances directly from the FBI in certain cases where officials previously accepted clearances from third-party FBI-approved channelers.
What does the change mean? FBI clearances will likely be required for U.S. and other nationals filing at Canadian consulates in the U.S. Those applying for permits at a point of entry most likely can still rely on FBI channelers. Non-U.S. nationals who have lived in the U.S., or U.S. nationals with a criminal record, should be prepared to provide police clearances issued directly by the FBI; channelers will not be accepted in these instances.
Background: Earlier this year, Canada stopped accepting police clearances from FBI-approved channelers in certain cases. Citizenship and Immigration Canada did not publicly announce any changes in policy, and the rules are not perfectly clear. However, U.S. nationals applying for work permits or other permits or visas requiring police clearances at a U.S. consulate should be prepared to provide FBI clearances. Those applying at a point of entry can most likely rely on FBI channelers. The change does not affect non-U.S. nationals who have lived in the U.S. or nationals of any country who have a criminal record; such applicants are required to obtain police clearances directly from the FBI.
BAL Analysis: Because U.S. nationals often apply for work or residence permits at the border, rather than at a Canadian consulate, the change may not have a dramatic impact on most U.S. nationals. The rules remain fluid and, in some cases, unclear; anyone with questions about what type of clearances they need should contact their BAL attorney.
Travelers should expect long delays at ports of entry on the U.S.-Canada border Sept. 4-7 due to the Labor Day holiday weekend, celebrated in both countries.
U.S. Customs and Border Protection advises travelers to consider entry routes that are less popular. For advisories and wait times at U.S.-Canada border crossings, travelers may use the CBP Border Wait Times tool.
Travelers enrolled in Trusted Traveler Programs, including NEXUS, SENTRI, and Global Entry, can take advantage of expedited processing at ports of entry. While enrollment in these programs takes several months and is unlikely to be obtained prior to the holiday, travelers should consider applying at the Global Online Enrollment System’s registration page in order to expedite future travel.
BAL Analysis: Travelers crossing the U.S.-Canada border on Labor Day weekend should plan accordingly and expect significant delays due to high traffic volume.
IMPACT – HIGH
What is the change? Foreign nationals applying to extend work, study and residence permits are facing significant processing delays at Canada’s central processing center in Vegreville, Alberta.
What does the change mean? Extension applications that took as few as nine days to process in November 2014 are now taking 115 days on average. The delays have wide-ranging consequences, including making it more difficult for foreign nationals whose applications are pending to leave the country.
Background: While processing commonly slows during the summer, the current delays far exceed normal seasonal fluctuations. In many cases, foreign nationals’ social insurance and health card numbers have expired while they await approval of their extension applications. While most applicants can continue working while awaiting a decision, those who wish to travel abroad should make sure they will be able to re-enter Canada before doing so.
BAL Analysis: Processing times may improve as fall approaches, but it could take months before normal processing times return. These delays make it all the more important for foreign nationals to apply for extensions well in advance of the expiration date on their existing permit. Those with pending applications should check with their BAL attorney before traveling abroad to avoid being denied re-entry.
IMPACT – LOW
What is the change? Citizenship and Immigration Canada issued a mid-year report on Express Entry this week, evaluating the success of Canada’s new permanent-residence program.
What does the change mean? Canada invited 12,017 people to apply for residence in the program’s first six months, but only 7,528 completed applications had been received as of July 6. Fully 70 percent of those invited to apply for residence had applications supported by an LMIA-based job offer or provincial nomination.
Background: CIC said the report was designed to provide “a snapshot of the Express Entry system for the initial six months of implementation” and covers data collected through July 6.
As of that date, a total of 112,701 foreign nationals had submitted Express Entry profiles. Some 12,017 were invited to apply for permanent residence and 7,528 had completed and submitted applications. The number of invitations to apply is low, considering the government projected up to 285,000 new permanent residents in 2015, with economic immigrants making up nearly 65 percent of that total. CIC noted, however, that because Express Entry was only implemented this year, many of its 2015 permanent-residence admissions are expected to come from those who applied prior to the implementation of the program.
In initial draws, CIC issued invitations to apply only to those with LMIA-based job offers or provincial nominations. However, that trend has begun to change in more recent draws – including those that have been held after July 6.
BAL Analysis: While an increasing number of applicants who do not have job offers are being accepted for permanent residence through the Express Entry program, BAL recommends that, when possible, employers obtain an LMIA or provincial nomination for workers they intend to sponsor. Such workers still enjoy a significant advantage in Express Entry, as demonstrated by the report released this week.
What is the change? Canada has added five cities to its China Transit Program, more than doubling the number of mainland Chinese cities in the program.
What does the change mean? Chinese nationals departing from Chengdu, Fuzhou, Harbin, Shenyang or Xiamen may now travel to the U.S. via international airports in Toronto or Vancouver without obtaining a Canadian visa. Other cities with airports in the program are Beijing, Guangzhou, Hong Kong, Manila, Seoul, Shanghai, Taipei and Tokyo.
Background: The China Transit Program has grown significantly in recent months. News that five additional Chinese airports have been added followed the addition of the Tokyo Narita, Tokyo Haneda, and Seoul Incheon airports in June. In order to be eligible, travelers must hold a valid Chinese passport and U.S. visa and must be traveling through Toronto or Vancouver to the U.S. They must also travel on one of the 10 airlines approved for the program: Air Canada, Air Canada rouge, Air China, Air Georgian, Cathay Pacific, China Southern Airlines, Jazz, Philippine Airlines, Sky Regional Airlines and WestJet.
BAL Analysis: Chinese nationals traveling from any of more than a dozen cities in China and other Asian countries can now benefit from visa-free transit through Canada to the U.S.
What is the change? Canada conducted its 13th draw last week for its points-based Express Entry program, inviting 1,581 people to apply for permanent residence. The minimum score of those invited to apply in the July 17 draw reached a new low of 451 points.
What does the change mean? An increasing number of applicants are receiving Invitations to Apply (ITAs) for permanent residence even without an LMIA-based job offer or provincial nomination. At least some of the ITAs issued in eight of the past nine draws have gone to applicants without job offers or nominations. Minimum scores have dropped from a high of 886 in the first draw to 451 in the most recent draw.
Background: Canada’s Express Entry system uses a 1,200-point scale to rank applicants based on factors such as education, skills, and language abilities. Candidates with an LMIA-based job offer or provincial nomination are awarded 600 points.
While the minimum scores for those issued ITAs was well above the 600 mark in each of the first four draws, in eight of the subsequent nine draws the minimum score was in the mid- to high-400s. This means that a number of those who have been given ITAs have been selected without an LMIA-based job offer or provincial nomination.
The number of ITAs issued has topped 1,500 in each of the past four draws. Still, Canada has issued just 16,025 ITAs since the Express Entry began. This amount seems low considering that Canada expected to accept as many as 285,000 new permanent residents in 2015, with economic immigrants making up nearly 65 percent of that total.
BAL Analysis: The minimum number of points an applicant must have to be issued an ITA is on a clear downward trend, a sign that employers are not required to go through the LMIA process in order to sponsor a foreign worker for permanent residence. Despite this trend, BAL recommends that, if possible, employers obtain an LMIA or provincial nomination for workers they intend to sponsor because of the significant advantages for those workers in an unpredictable system.
What is the change? Employers who violate the terms of a foreign employee’s work permit would face harsh penalties under a proposed enforcement regime scheduled to take effect Dec. 1.
What does the change mean? The range of penalties under the government proposal includes fines and barring employers from submitting new work permit applications. The proposed penalties cover both LMIA-based and LMIA-exempt work permits.
Background: Currently, Canada’s administrative penalties for LMIA-based work permit violations include revoking work permits, barring employers from hiring foreign workers for up to two years and publishing employers’ names on a “shame” website. In addition, employers found to have hired undocumented workers face criminal fines of up to CA$50,000 and up to two years in prison.
The criminal penalties would remain unaffected by the proposal, but the potential changes in the administrative enforcement scheme are fairly dramatic. Violations would be broken into three types:
Violations would be given a score based on a formula that would consider both the type and severity of the violation. The type of violation would be scored on a scale of one to four (four being the most severe), with a maximum score of two for “A” violations, three for “B” violations, and four for “C” violations. The severity of a violation would then be scored on a separate scale based on criteria such as whether employees suffered abuse, negative impact on the Canadian labor market, the economic windfall to the employer and whether the employer undertook efforts to mitigate the violation or prevent it from reoccurring.
The two scores would then be combined and a corresponding fine would be imposed. Fines would be larger for larger companies and would range from zero to CA$100,000, with a maximum of CA$1 million in fines per year. Other proposed penalties include barring employers from recruiting additional foreign workers. Employers with unpaid fines would be barred from recruiting new foreign workers until they pay their fines. The Canadian government has said it will not punish employers who make unintentional errors or demonstrate good faith in attempting to stay in compliance.
BAL Analysis: The proposed enforcement regime shows how serious the Canadian government has become about work permit violations, including violations of LMIA-exempt work permits. Contact your BAL attorney with any questions about staying in compliance with applicable rules and regulations.
What is the change? On Aug. 1, Canada will begin accepting applications for Electronic Travel Authorization, or eTA, which will be required of visa-exempt nationals before travel as part of the country’s new entry authorization system.
What does the change mean? Travelers are encouraged to apply before it becomes mandatory on March 15, 2016. As of that date, visa-exempt nationals must have an eTA before boarding a flight to Canada. U.S. citizens will not be required to have an eTA or a visa, and will be able to enter Canada upon showing appropriate identification and proof of citizenship.
Background: Canada’s eTA program was established as a result of a joint U.S.-Canada border action plan to step up screening of visa-exempt foreign nationals. The Canadian system is similar to the Electronic System for Travel Authorization (ESTA) used for visa-waived nationals traveling to the U.S.
Nationals who will be required to obtain an eTA can be viewed here. ETAs will be required for visa-waived nationals entering Canada by air only; those traveling by land or sea will not need an eTA.
Starting Aug. 1, applicants who are approved for a Canadian work or study permit will automatically be issued an eTA and will not have to submit a separate eTA application form. Foreign workers and employees already in Canada on a valid work or study permit will need an eTA if they wish to leave Canada and return by air.
U.S. citizens are exempt. U.S. permanent residents will require an eTA if flying to Canada. Permanent residents of Canada will not need an eTA as long as they travel with their permanent residence cards.
BAL Analysis: Although travelers may continue to rely on visa-exempt status until eTAs become mandatory on March 15, 2016, they are advised to obtain an eTA during the transition period to avoid any last-minute rush.
What is the change? Canadian Prime Minister Stephen Harper announced Thursday that Canada plans to expand biometrics to nationals of all non-visa-exempt countries before they travel to Canada.
What does the change mean? Anyone from a non-visa-exempt country applying for a visa or permit to visit, study or work in Canada will be required to provide digital photographs and fingerprints before their application will be approved.
Background: The change is designed to improve border officers’ ability to verify visa holders’ identity upon their arrival in Canada. The new rules apply to people ages 14 to 80. Affected applicants will be required to complete biometrics within 30 days of submitting their applications and pay a government biometrics fee. Nationals of visa-exempt countries are not affected by the change. A list of non-visa-exempt countries is available on Citizenship and Immigration Canada’s website.
BAL Analysis: The expanded biometrics program will add an additional step to the application process for a significant number of foreign nationals planning to visit, study or work in Canada. Those affected should be sure to leave enough time to submit biometrics. Applications that require biometrics risk being rejected if the biometrics are not provided within 30 days of application submission.