Introducing the new Alberta Work Experience Category

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A few days ago, the Alberta Immigration Nominee Program (AINP) launched  a new Alberta Work Experience category.  Among other requirements, the general criteria include:

  • Already residing in AB;
  • Have a valid work permit;
  • For those in a NOC 0,A, B skilled position, one requires 2 out of 3 years of full-time experience in an (or multiple) eligible occupation;
  • For those in a NOC C entry-level position, one requires 3 out of 4 years of full-time experience in an (or multiple) eligible occupation;
  • Meeting language requirements;

The major benefits for Alberta foreign workers for this permanent residence stream is that there is no requirement for employer nomination or proof of relevant education – both of which are required in other AINP streams.  Some NOC C jobs also qualify.  A real bonus is the more relaxed language requirements compared to the similar Canadian Experience Class program:

Language Testing Requirements: CEC vs. new Alberta Work Experience (AWE) Category

 

CEC

AINP (AWE)

NOC O/A

NOC B

IELTS Listening

6 *CLB7

5 *CLB5

4.5

Reading

6

5

3.5

Writing

6

5

4

Speaking

6

5

4

CELPIP Listening

4L *CLB7

3L *CLB5

2H *CLB4

Reading

4L

3L

2H

Writing

4L

3L

2H

Speaking

4L

3L

2H

TEF Listening

309 *CLB7

225 *CLB5

145

Reading

248

180

121

Writing

206

150

181

Speaking

309

225

181

 

The drawbacks, however, are that the foreign worker must be in one of the eligible occupations, though this fortunately includes many areas such as Retail Trade Supervisors; Food Service Supervisors; Management Consultants; Banking, Insurance and Other Financial Clerks, etc.

Interested individuals need to act quickly as this program is expected to close November 28, 2013.  We invite you to book a consultation with us today to see how this program may apply to you.


Language Requirements for Temporary Foreign Workers

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Canada recognises English and French as her official languages. Does a temporary foreign worker need to have either English or French language abilities to work in Canada?

In most situations, there are two requirements before a foreign national can work in Canada:

  1. The Canadian employer will need to obtain a Labour Market Opinion from Service Canada confirming that the employment of the foreign national will likely have a neutral or positive effect on the labour market in Canada;
  2. The foreign national will then need to obtain a work permit from Citizenship and Immigration Canada (“CIC”).

Labour Market Opinion

In the recent case of Construction and Specialized Worker’s Union, Local 1611 v Canada (Citizenship and Immigration) which was decided on May 21, 2013, the Applicants had argued that the Service Canada officer had fettered his discretion when there was no policy which would have allowed him to refuse the LMO based on the fact that Mandarin would be the predominant language used by the miners from China. Although the lack of requirement for English raised concerns for the officer regarding the employer’s ability to attract, train and transition to Canadian workers, his positive assessment was found by the Federal Court to be within the range of possible acceptable outcomes, and was not unreasonable.

Although the question of whether English or French is required for a temporary foreign worker was not framed directly in that case, one could glean from the decision that Service Canada did not have a policy of requiring English or French before a LMO would be issued. Indeed, the LMO application allowed employers to specify whether other languages were required in the position, and this was typically the case for ethnic restaurants looking for cooks who could not only prepare ethnic food, but could work in an environment that did not use English or French as the predominant language.

Unfortunately, the “mining” case created a lot of bad publicity for the federal government, and reforms were announced on April 29, 2013 which included identifying English and French as the only language that can be used as a job requirement. It will be interesting to see how Service Canada will assess applications by ethnic restaurants for example, and whether a policy will be written into the Temporary Foreign Worker Program Manual which is in the process of being updated by Service Canada.

Work Permit

When an application is made to CIC for a work permit, Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations provides that an officer shall not issue a work permit to a foreign national if “there are reasonable grounds to believe that the foreign national is unable to perform the work sought”.

In the case of Minhas v Canada (Citizenship and Immigration) which was decided on July 3, 2009, an Indian national was selected in 2008 for a 2-year construction helper position in British Columbia. His application for a work permit was refused. Amongst the reasons recorded, the officer stated that:

“A basic level of English is a must for day to day living in Canada. A complete lack of English could also be a determent for the health and safety of the PA and others. It appears from the documents submitted, that the PA does not have any language ability.”

On the facts, the Federal Court found that there was no evidence before the officer addressing the applicant’s level of English language abilities. It was therefore not reasonable to conclude, based on his English language ability, that he could not perform the work of a construction helper.

On December 30, 2009, CIC released their Operational Bulletin 170 on Assessing Official Language Requirements for Temporary Foreign Workers. It was noted then that Service Canada did not assess a job’s language requirements, so when immigration officers assess requirements to perform the work sought, they should not limit their assessment to the requirements in the LMO.

Officers can consider:

  • the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
  • terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”.

However, it is not appropriate for an officer to consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance.

In determining what precise level of language requirement is necessary to perform the work sought, the officer can refer to:

  1. the LMO requirements;
  2. working conditions as described in the job offer; and
  3. NOC requirements for the specific occupation.

Is CIC in a better position to determine the foreign national’s language ability for the specific job than the employer or an interested third party?

Provincial Requirements

Some provinces in Canada require foreign workers who are experienced tradespeople to obtain certification before being able to work in that province in Canada.

For example, a tradesperson from outside Canada wanting to work in a compulsory trade in Alberta has to apply to Alberta Apprenticeship and Industry Training (“AIT”) for certification under the Alberta Qualification Certificate Program.

Once the application has been submitted, AIT will verify the foreign national’s work experience in the trade and the Canadian employer’s requirements before deciding whether to approve the application. Upon approval, the foreign national will need to include AIT’s approval letter with his/her work permit application.

Within 180 days of arrival in Canada, the foreign national will need to pass theory and/or practical examinations (pass mark is 70 per cent) and attend any required training in order to maintain his/her foreign worker status in Canada.

With such rigorous screening processes, plus on-the-ground familiarity with trades and employer requirements in Alberta, it would make a strong case that AIT are in the best position to assess whether the foreign national is able to perform the work sought without disputing CIC’s authority to do so when assessing a work permit application.

What happens if my work permit application is refused?

In order to challenge a negative decision by CIC made outside Canada, the aggrieved party must apply for permission (“leave”) to seek judicial review of the decision within 60 days.

If leave is granted, a hearing will be conducted where the Federal Court will review the immigration officer’s decision to ascertain (in most situations), whether the officer’s decision was reasonable or not. If the applicant is successful, the Federal Court can then send the work permit application back to the visa office to be processed by a different officer.

Has your work permit application been refused notwithstanding that you were found to be qualified and able to perform the work sought? Call us today for a consultation as your right to apply to the Federal Court will extinguish after 60 days!”


Maintaining “residency” by accompanying a Canadian spouse outside Canada

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Permanent residents must comply with a residency obligation with respect to every 5-year period.

For 2 years in that 5-year period, they must either be physically present in Canada, be employed by a Canadian business outside Canada, or be accompanying a Canadian spouse outside Canada.

In the case of Diouf v Minister of Citizenship and Immigration, Ms. Diouf became a permanent resident of Canada and left shortly thereafter to return to her country of origin. Whilst there, she met her husband at her workplace and he happened to be a Canadian citizen. When Ms. Diouf applied to renew her permanent resident card, it was determined that she had not met her residency obligation because she was short of physical days in Canada.

Ms. Diouf appealed to the Immigration Appeal Division (IAD), and argued that she was accompanying her Canadian husband outside Canada. If the number of days she was with her husband were counted, she would have satisfied her residency obligation.

The IAD looked at the meaning of the word “accompany” in the context of the Immigration and Refugee Protection Act (“Act”) and also in the ordinary meaning of the term, which included the dictionary definition “to go with”. It also considered that one of the purposes of the Act is to promote the integration of permanent residents by having them comply with the residency obligation.

The IAD found that Parliament could not have intended for people who are granted permanent residence to leave Canada and settle abroad and allow these people who marry a Canadian citizen to maintain a status that would otherwise have been lost.

It thus found that Ms. Diouf was not “accompanying” her Canadian spouse within the meaning of the Act, and dismissed her appeal.

The important thing to note about this case is that frequently, there may be case law that interprets provisions in the Act in a way which may not be apparent from a plain reading of the Act. It is therefore important to consult an immigration lawyer whenever planning to take any steps under the Act as your own understanding of the law may not be accurate.