Jacqueline R Bart of Jacqueline Bart & Associates explores Canada’s efforts to attract skilled workers.
"The Harper government believes that the new regulations will meet the challenges created by an ageing population and the emerging shortages in certain skilled trades and professions."
“The success of any national or business model for competitiveness in the future will be placed less on capital and much more on talent… the world is moving from capitalism to talentism”. Klaus Schwab, founder and executive chairman of the World Economic Forum, 2012
“The global economy is approaching a demographic shock of a scale not seen since the Middle Ages.” World Economic Forum Annual Meeting at Davos-Klosters
“Immigrants are going to be going to a whole lot of countries, mostly in the developed world, and Canada is going to have to get out there, compete, and make sure we get the immigrants both in terms of volumes and particular attributes: skills, expertise and investment capacity.”
“[Canada] is very pro-immigration. This government believes Canada needs immigration, benefits from immigration and that those needs and benefits will become even greater in the future if this is done correctly.” Canadian Prime Minister Stephen Harper, November 2012
New Immigration Rules
Canada’s efforts to counteract an ageing population and the need for young skilled workers has led to a re-evaluation of the Federal Skilled Worker programme and the introduction of new immigration rules by Citizenship and Immigration Canada (CIC). The FSW programme has been in suspension since 1 July 2012 while changes were being effected to the programme, and the new legislation related to Federal Skilled Workers was published on 19 December 2012. These new regulations set out a three-pronged approach to attract needed talent to Canada. CIC’s amendments reinstate an amended Federal Skilled Worker Class (FSW), create a new Federal Skilled Trades Class (FST) and reduce the Canadian experience requirement under the Canadian Experience Class (CEC). In the case of FST and CEC, the new regulations took effect from 2 January 2013. For FSW, the regulations will take effect as of 4 May 2013, at which time the programme will reopen for applications.
Changes to the Federal Skilled Worker Class
The new FSW class is designed to attract young, educated workers with proficiency in English or French and good employment prospects in Canada. The foreign worker’s ability to integrate into the Canadian workplace is evaluated based on current employment in Canada on a work permit. If the applicant is not employed in Canada, then he or she would be required to have an excellent score on language proficiency, education, work experience and age or adaptability.
The key changes to the FSW selection criteria include:
• minimum English/French language thresholds and increased points for official language proficiency, making language the most important factor in the selection process and resulting in greater disqualification based on high language requirements;
• increased emphasis on younger immigrants by introducing a maximum points cut-off age of 35;
• a mandatory assessment of foreign educational credentials to determine their equivalency to a completed educational credential in Canada. CIC will designate credential assessment organisations and regulatory bodies to conduct the assessments as part of the immigration selection process. These agencies will be announced in 2013;
• a removal of the traditional “arranged employment” process, which will require employers to sponsor workers based on a cumbersome Labour Market Opinion (LMO) process. The LMO process requires the employer to recruit Canadians first for the position and demonstrate that such recruitment activities are in compliance with labour market conditions and average Canadian wages; and
• an emphasis on adaptability. CIC has introduced changes to the adaptability criteria to attract workers with Canadian study and work experience, points for previous work experience in Canada and points for a spouse’s language proficiency (which CIC believes will improve the likelihood of a family’s successful integration). The points for previous spousal study and/or work in Canada, and having relatives in Canada, will remain unchanged.
The new immigration rules represent a dramatic departure from Canada’s traditionally lax points system selection criteria. Although immigration law by its very nature involves discrimination, the new rules are remarkably ageist and favour applicants with spouses. For example, the likelihood of a single applicant over the age of 35 qualifying for immigration under the Federal Skilled Worker class is extremely low, unless they have a government-approved job offer or work or study experience in Canada.
Unknown at this time is whether the Canadian government will increase the 67-point threshold and/or what occupations will be restricted from qualifying under the FSW. The minister has announced that caps and an occupational list of eligible occupations will be introduced in April 2013. The regulations allow for both and it is not uncommon for our current immigration minister to surprise the legal and immigration community with drastic changes of immediate effect.
New Federal Skilled Trades Class
CIC has identified a need for skilled tradespeople and has developed a programme that specifically attracts skilled trade immigrants based on a pass/fail system. The key elements of the application include: a valid offer of employment in Canada or a certificate of qualification from a province or territory in a qualifying skilled trade; at least two years of work experience in the occupation within the last five years; and meeting the employment requirements set out in the National Occupational Classification system, with the exception of licensing requirements. This category applies to various trades such as plumbers, carpenters, electricians and supervising trades.
The programme requires that the skilled tradesperson meet the following criteria:
• Obtain government-approved employment in Canada, or a certificate of qualification from a Canadian provincial or territorial apprenticeship authority.
• Language proficiency minimum requirements, assessed by an independent agency which provides “conclusive” proof of the applicant’s language ability.
• Twenty-four months of work experience (after qualification/certification in the country where the work was performed) in the same skilled trade in the last five years.
• Qualifications that satisfy employment requirements as described by the National Occupations Classification, except for certification and licensing requirements, which are difficult to obtain outside of Canada.
The greatest challenge for qualifying under this category is the first requirement, given the fact that neither an LMO nor a certificate of qualification are easy to obtain. Without Canadian employer sponsorship or an educational/apprenticeship background (which would enable easier approval for a certificate of qualification), this immigration class will be closed to many skilled workers. However, if the tradesperson is able to obtain visitor entry to Canada and pass the necessary examinations for a certificate of qualification, then a government-approved job offer will not be required.
CIC has established a cap of 3,000 applicants for the first year, and within the 3,000 cap, no more than 100 new applications for specific occupations will be processed per annum.
The Canadian Experience Class
CIC has amended the regulations to support an easier transition to permanent residence for temporary foreign workers. The required minimum amount of completed work experience for a temporary foreign worker has been reduced from 24 months to 12 months within the last three years, in occupations that require post-secondary training and education/apprenticeships, or more education. The Canadian Experience Class will continue to require minimum language proficiency, depending on the category.
Labour Market Opinions
The new regulations place a substantial burden on Canadian employers to obtain a government-approved job offer (which usually means an LMO). Based on existing LMO policy, the employer’s LMO application requirements include a job market analysis, prevailing wage analysis, employment outlook analysis, rigorous advertising and recruitment requirements, and an analysis of the genuineness of the job offer and the employer. In addition, the employer will be required to submit to ongoing government compliance reviews, which are similar to Revenue Canada audits and include penalties of jail terms and/or hefty fines. The LMO process has become increasingly difficult as a result of the global economic slowdown, which has negatively affected Canada and the Canadian labour market. The LMO eligibility requirements are even more rigorous in the provinces that are experiencing the greatest slowdown, including the province of Ontario.
New Work Permit “Bridging” System
CIC has also introduced new policy to enable certain economic class permanent residence applicants to maintain their foreign worker status and continue their employment in Canada pending receipt of a final decision on their permanent residence application. This new initiative will enable qualifying permanent resident applicants, whose permits are due to expire, to extend their work permits whilst avoiding the LMO process. In order to apply for a extending bridge work permit, the applicant must:
• currently be in Canada;
• have valid status on a work permit that is due to expire within four months;
• have received confirmation from CIC that their permanent resident application is eligible under one of the economic classes; and
• have made an application for an open work permit.
This initiative will also reduce the burden on employers to apply for LMOs in certain situations. However, for most employers, the LMO process will nonetheless remain fundamental to the hiring of foreign workers.
Canada’s new immigration rules highlight the importance of integration by requiring minimum English/French proficiency requirements and a government-approved job offer from a Canadian employer. The Harper government believes that the new regulations will meet the challenges created by an ageing population and the emerging shortages in certain skilled trades and professions. Given the unprecedented burden that Canadian employers will experience as a result of the emphasis on LMOs, the government is considering more initiatives to ease the load on the employer by providing opportunities for them to retain foreign talent in Canada. At this stage, however, the fact remains that Canadian employers will be expected to bear the lion’s share of the work involved in administering Canada’s immigration programmes moving forward. While attracting talent may be difficult from an immigration standpoint, retaining the talent once it is in Canada has become substantially easier for employers (and the talented foreign workers) as a result of the new regulatory framework.