On June 28, 2002, the Government of Canada introduced new immigration regulations

On June 28, 2002, the Government of Canada introduced new immigration regulations. The Immigration and Refugee Protection Regulations features new procedures for the Economic Class comprising of the federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the investor class, the entrepreneur class and the self-employed persons class.

The selection rules for the skilled worker class also provide for a pass mark of 67.

FREQUENTLY ASKED QUESTIONS
IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

THE ACQUISITION OF CANADIAN PERMANENT RESIDENCE

What does Canadian permanent resident status confer?

Pursuant to the provisions of Canada's constitutional laws, the holder of a Canadian permanent resident visa and his/her accompanying dependants are permitted to permanently reside in Canada and earn a livelihood in any one of the ten provinces or three territories within Canada. In addition, individuals with Canadian permanent residence may attend primary and secondary education institutions in the various provincially administered public school systems, tuition exempt. Permanent residents also qualify for provincially administered universal health care coverage.

Who qualifies for permanent residence under the Economic class?

The Federal skilled worker class is primarily point based and confers permanent resident status to applicants who are able to demonstrate an ability to become economically established in Canada. Applicants are assessed under 6 factors and numerous sub factors of assessment providing for 100 points. Individuals with at least one year of continuous full-time employment experience, or the equivalent in part-time employment in one or more “open” occupations, within the 10 years preceding the date of their application and who possess the required settlement funding, may qualify for assessment. Applicants who do not meet the applicable pass mark may be accepted under the positive discretion provisions of the regulations. This mechanism is used to accept a number of applicants who will be able to successfully settle in Canada yet who do meet the applicable pass mark.

Under the Quebec skilled worker class and the Provincial nominee class, applicants may become permanent residents on the basis of their proven ability to become economically established in Canada, in accordance with immigration programs and selection criteria administered by Quebec or the provinces.

The Investor class is point based and confers permanent residence to applicants who demonstrate an ability to become economically established in Canada on the basis of their business or management experience and high personal net worth. Approval is contingent upon the investor undertaking to commit an irrevocable, passive, non-interest bearing investment of $800,000 in a government guaranteed investment fund.

A successful applicant is one who has a) managed a qualifying business and has controlled a percentage of equity of the qualifying business for at least two years in the period beginning five years preceding the application or managed at least five full-time job equivalents per year for at least two years in the period beginning five years preceding the application; b) possesses a personal net worth of $1,600,000 and c) undertakes to invest $ 800,000 in a government approved investment fund.

The Entrepreneur class is point based and confers permanent residence to applicants who demonstrate an ability to become economically established in Canada on the basis of their business experience and personal net worth. Approval is contingent upon the entrepreneur undertaking to invest and become active in the management of a qualifying business operated in Canada that will contribute to the economy and create employment.

A successful applicant is one who has a) managed a qualifying business and has controlled a percentage of equity of the qualifying business for at least two years in the period beginning five years preceding the application; b) possesses a personal net worth of $300,000 and c) undertakes to control a percentage of the equity of a qualifying Canadian business and provide active and ongoing management of the qualifying Canadian business that will create at least one incremental full-time job for Canadian citizens or permanent residents, other than the entrepreneur and their family members. This condition must be fulfilled for a period of one year within the period of three years after the day on which the entrepreneur becomes a permanent resident.

The Self-Employed class refers to applicants who have the intention and the ability to create their own employment and make a significant contribution to the cultural, artistic or athletic life of Canada, or to create their own employment by purchasing and managing a farm in Canada.

A successful applicant is one who has at least two years of experience in the period beginning five years before the date of the application and ending on the day a determination is made on the application, in self-employment in cultural activities or in athletics; participation at a world-class level in cultural activities or athletics; or farm management experience.

To qualify, the applicant must demonstrate a sufficient financial net worth which, although somewhat less than an entrepreneur and not specified in the regulations, should enable the applicant to be self-employed in Canada and make a significant contribution to specified economic activities in Canada and to meet the initial settlement requirements for the applicant and accompanying dependants.

How are applications assessed under the skilled worker class?

Applications are assessed under 6 Factors (education, language experience, age, arranged employment, adaptability) totalling 100 points with each factor providing a maximum number of points. Successful applicants must receive a minimum of 67 points with at least one year of experience within the past 10 years in one of the occupations listed in either Skill Type 0 or Skill Level A or B of the National Occupational Classification (NOC). The Regulations enumerates the factors and allocates the maximum number of units as follows:

In summary, the Immigration and Refugee Protection Regulations under the skilled worker class features a selection process THAT:

Implements a selection regime that places emphasis on higher education, language abilities and flexible transferable skills.

Favours married applicants with university education at the graduate level.

Rewards applicants with government approved job offers in Canada.

Provides the Minister of Citizenship and Immigration with authority to set and amend the pass mark at any time during the process with no lock-in protection for an application under assessment. This gives rise to a highly unpredictable selection regime.

Preserves the discretionary powers of a visa officer to assess an applicant’s overall settlement potential, irrespective of the point total and approve an application under the positive discretion (or refuse an application under the negative discretion) provisions of the regulations. This mechanism is used to accept a number of applicants who will be able to successfully settle in Canada yet who do meet the applicable pass mark.

Introduces a processing system based on an applicant’s nationality or current place of legal residence.

Establishes a continuing conformity principle requiring applicants to meet applicable selection criteria at the time an application for a permanent resident visa is made as well as at the time the visa is issued. This gives rise to a highly unpredictable selection regime.

How long does it take to obtain a permanent resident visa?

Depending upon the time of year, the immigration office in question and other factors, the processing time for an application for permanent residence filed under the economic class can vary from between 6 months and 40 months. This is the time generally needed to demonstrate compliance under one of the applicable categories; a clean bill of health for the applicant and accompanying dependants; sufficient assets to successfully establish the family in Canada; and a confirmation of no criminal inadmissibility’s for the applicant and the overage accompanying dependants.

Who is included in the application for permanent residence?

The application for permanent residence generally includes the Applicant, spouse or common-law partner or conjugal partner 16 years of age or older and any unmarried children under the age of 22 years. Children over the age of 22 may in prescribed circumstances, be included as accompanying family members.

What are the applicable processing fees to process an application for permanent residence?

Applications for permanent residence must include the appropriate non-refundable processing fees for applicants and their accompanying dependants. For applicants applying under the skilled worker program the application fee is currently set at $550 CAD for each applicant as well as each family member of the principle applicant who is 22 years of age or older. A fee of $150 shall apply to each family member under the age of 22 years. As well, a Right Of Permanent Residence Fee of $975 CAD is levied, prior to visa issuance, for each person who is at least 22 years of age applying for permanent residence.

Processing fees must be filed with the application. Right Of Permanent Residence fees are submitted upon request by the visa office, prior to visa issuance. Applicants are encouraged to verify with local missions for applicable immigration office specific payment procedures.

Must the applicant travel to Canada as part of the immigration process? (Not applicable for persons studying or working in Canada)

The applicant need not visit Canada as part of the immigration process. However in some cases, familiarity with the Canadian landscape and particularly with the area of intended destination can impact positively on the assessment.

Applicants applying under the Investor or the Entrepreneur class are encouraged to undertake exploratory visits to Canada and participate in information sessions sponsored by the provinces. For Entrepreneur Class applicants, such efforts may relate to an indication of an applicant's ability to meet the universal terms and conditions of admission.

Who must attend the selection interview?

The applicant and spouse (where applicable), will generally be required to travel to the processing immigration office and attend a selection interview. In some cases, the requirement for a spouse to attend the selection interview can be waived.

As well, certain posts require that accompanying dependant children over the age of 22 years attend the immigration selection interview.

What about the interview process?

Generally, an interview would be conducted to ensure the accuracy of the information contained in the documentation submitted; to verify an applicant’s language proficiency, to confirm an applicant possesses the necessary means to settle in Canada; to verify the absence of security inadmissibility’s; to ensure the applicant is intending to enter the Canadian labour market; to verify whether there are sufficient grounds to exercise positive discretion; etc.

Under the Business Class (Investor, Entrepreneur, Self-Employed), applicants are interviewed to ensure conformance with the statutory definitions and to review the general parameters of the business proposal in Canada.

Applicants are advised to bring to the interview, all original documentation supporting the application; certificates of non-criminal conviction; evidence of settlement funds.

What about interview waivers?

Certain immigration offices engage in the practice of waiving interviews. This is a highly discretionary aspect of the Regulations and is largely a function of the immigration office in question, the habitual residence of the applicant and the documentation in support of the applicant’s qualifications.

What documents are submitted along with the application?

The submitted application must at the risk of refusal, contain in prescribed format, the name, birth date, and address, nationality and immigration status of the applicant and of all family members of the applicant and the class of visa being requested. An application being submitted under the skilled worker class must also contain the four-digit codes from the National Occupational Classification that corresponds to each of the occupations engaged in by the applicant and that constitutes the skilled worker’s work experience.

Business immigration applications must be supported by documentation, which corroborates an applicant’s business/managerial, experience.

Certain documents can be submitted during the process. These include statutory documents such as birth certificates, marriage certificates and certificates of non criminal conviction from each place of residence where an applicant has permanently resided for more than 6 months since age 16 years.

Applicants are advised to avoid delaying submitting an application in proper format while gathering non essential documentation as the pass mark can be modified by the Minister without notification at any time during the process, which may prejudice an applicant’s qualifications.

Is full-time employment experience a necessary requirement under the Skilled Worker Class?

At least one year of experience within the past 10 years in one of the occupations listed in either Skill Type 0 or Skill Level A or B of the National Occupational Classification (the “NOC”) is a necessary preliminary requisite to qualifying for permanent resident status.

To receive consideration for experience, the applicant must perform the actions described in the lead statement for the occupation as set out in the NOC and at least a substantial number of the main duties of the occupation including all of the essential duties. There is no obligation to meet the occupational employment requirements described in the NOC.

A number of graduate students and post doctoral candidates may not possess so called "full time" employment experience within the traditional sense other than faculty related internships, teaching positions, etc. In many cases, such experience may prove sufficient.

The number of units of assessment awarded under the experience factor will depend upon reasoned presentations on the part of the applicant demonstrating that the applicant meets the requirements of NOC and would ultimately be left to the discretion of the interviewing visa officer.

Applicants must specify in their application the four-digit code of the NOC that corresponds to each of the occupations engaged in by the applicant and that constitutes the skilled worker’s work experience.

What if the intended occupation differs from past employment positions?

There is no requirement for an applicant to become employed in Canada in an occupation that is consistent with past employment experience.

Is there a requirement for the applicant to obtain a confirmed offer of employment in order to qualify for permanent residence under the Skilled Worker Class?

The Canadian Citizenship & Immigration authorities do not require applicants to secure a confirmed offer of employment as a condition of selection. In essence, current Canadian immigration policy provides that if an applicant meets the skilled worker selection criteria, he/she is likely to become successfully established in Canada. However, "arranged employment", (confirmed by Human Resources Development Canada) will provide a prospective applicant with an additional 15 units of assessment and in most cases, is an important aspect of the selection process.

The current selection rules therefore favour applicants with government approved job offers in Canada.

What if the intended occupation requires registration/licensing?

There are a number of occupations requiring registration and/or licensing and where special procedures may apply. The typical occupations include:

ENGINEERS - Applicants are encouraged to have their education and employment experience favourably assessed by the Canadian Council of Professional Engineers (CCPE). Applications for permanent residence would include an assessment form (IMM 1338) with a non-refundable service fee of $175 payable to the Council. The visa office will forward the request to the Council for assessment. The applicant may directly forward to the Council, the request for assessment.

ENGINEERING TECHNOLOGISTS and TECHNICIANS - Applicants are encouraged to have their education and employment experience favourably assessed by the Canadian Council of Technicians and Technologists (CCTT). Applications for permanent residence would include an assessment form (IMM 1338) with a service fee of $175 payable to the Council. The visa office will forward the request to the Council for assessment.

OCCUPATIONAL THERAPISTS - Applicants are encouraged to have their education and employment experience favourably assessed by the Canadian Association of Occupational Therapists. Applications for permanent residence would include an assessment form (IMM 5206) with a service fee of $100 payable to the Association. The visa office will forward the request for assessment.

Applicants, who are favourably assessed by the applicable professional entity, may likely be admissible for immigration purposes. However such individuals, once landed will still be obliged to obtain the proper provincial licensing credentials in order to practice in the desired profession/occupation.

Are assets/personal net worth determining factors in the selection process?

Under the skilled worker class, personal net worth is not a selection criterion of assessment. However, assets can impact positively upon an applicant's assessment under the positive discretion provisions of the regulations.

All applicants must however provide evidence of sufficient funds for the family to travel and settle in Canada as measured against the current annual Low Income Cut-Off (LICO) published by Statistics Canada.

A sum of $15,387 would satisfy LICO requirements for a family comprising of the applicant, spouse and one child. Such evidence may be furnished immediately prior to visa issuance.

Exempt from this financial requirement would be applicants who have received an approved job offer in Canada.

Does it help to have a relative in Canada?

The principal applicant receives five points for adaptability if they or their accompanying spouse or common-law partner, have a close relative in Canada such as a parent, grandparent, child, grandchild, spouse, common-law partner, sister, brother, uncle, aunt, nephew or niece who is a Canadian citizen or permanent resident and is physically residing in Canada.

Must an individual reside in Canada in order to maintain permanent resident status?

Current legislation provides that permanent resident status is maintained if a person is physically resident in Canada for at least 730 days (2 years) within each period of 5 years, or if other circumstances are met.

If not physically present in Canada, permanent resident status can be maintained while abroad where the Canadian resident is abroad with a Canadian citizen spouse or parent; with a Canadian employer, or with a Canadian permanent resident who works for a Canadian employer.

It is sufficient for a permanent resident to demonstrate at examination, if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period.

Can foreign nationals who have applied for Canadian permanent residence under the skilled worker class obtain a temporary non-immigrant (visitor's) visa to Canada?

Traditionally, visa officers have viewed concurrent applications for permanent residence and temporary entry as being incompatible with each other. Visitor’s (work, study or visit) with pending immigrant applications may be subject to the issue of Dual Intent, which in itself has been the subject of ongoing debate within the department of Citizenship and Immigration as well as the judicial community including the Federal Court of Appeal. Recent clarifications which attempt to conform to a global view of the world community, provide that immigration officer’s must assess the present intention of the applicant when a person applies to visit Canada and verify the question of whether the applicant has the ability and the intention to enter Canada for a temporary purpose and thereafter leave Canada at the expiry of the visitor status, regardless if the long-term goal is to secure permanent residence in Canada.

Under current immigration policy, applicants are encouraged to become familiar with Canada's landscape, which will augment the applicant's likelihood of successfully integrating into Canadian society. Applicants are discouraged however from "waiting" inside Canada during the permanent residence application process. Accordingly, applicants who wish to procure temporary entry into Canada and who have pending, an application for permanent residence, will be required to demonstrate sufficient ties to their current country of residence prior to the issuing of a temporary visitor's visa by the Canadian visa office.

Can foreign nationals who have applied for Canadian permanent residence under the Skilled Worker Class concurrently apply for a temporary non-immigrant employment authorisation?

The issues raised above should be reiterated here as well. In addition, applicants who wish to procure a temporary work permit must generally initiate the process with the assistance of the prospective employer who must file an application with the Canada Employment authorities inside Canada. It is only after the employment authorities have confirmed that the hiring in question will have a neutral affect on the local labour market that the application would be approved and forwarded to the appropriate visa office outside Canada for immigration assessment and processing. This is known as "employment validation". As the average processing times for permanent residence applications currently exceeds 12 months at most immigration offices, it may be advantageous in many cases, for the applicant to apply for a temporary work permit either prior to or during the processing of an application for permanent residence.

Is it more advantageous to apply before or after an applicant has researched the Canadian labour market?

The Canadian immigration authorities are continuously revising its programs and policies to reflect Canada’s changing labour market requirements. The current Regulations provide the Minister of Citizenship and Immigration with authority to set and amend the pass mark at any time during the process with no lock-in protection for an application under assessment. Qualified applicants who manifest a serious interest in obtaining permanent residence would be encouraged to proceed with the filing of the application(s) and the non refundable government filing fees in a timely fashion so as to initiate and conclude the processing at the earliest possible time.

As well, since the processing of a permanent resident visa application generally takes many months to complete, Canadian employers are often willing to consider sponsoring the candidacy of qualified foreign applicants under a temporary work visa. Applicants may therefore consider canvassing the Canadian labour market while simultaneously processing an application for permanent residence.

What are the current prospects for employment in Canada?

Employers within the Canadian High Technology, Engineering and Financial Services sectors are now recruiting qualified individuals who are lawfully permitted to take up employment in Canada on a temporary or permanent basis. Many of these firms are currently advertising available positions in Canada's leading newspapers, trade journals and or through the Internet.

What are the general tax implications of acquiring Canadian permanent residence?

The Canadian Government imposes income tax on the basis of residency rather than citizenship. It is therefore possible to become a Canadian citizen and a non-resident for tax purposes. After becoming a permanent resident and prior to attaining citizenship, an individual would be required to pay Canadian taxes on worldwide income. However, the tax legislation allows for newly arriving permanent residents to establish an offshore trust into which may flow all of the non-Canadian sourced income, except employment income. The trust avails for a maximum period of five years and it is therefore possible to become a Canadian citizen and a non-resident within the life span of the trust.

What if a prospective applicant is destined to the Province of Quebec?

Pursuant to the provisions of the Quebec/Canada Accord, the Immigration and Refugee Protection Act and the Quebec Act Respecting the Selection of Foreign Nationals, the Quebec Government is currently the only provincial government in Canada to have concluded a comprehensive agreement for the purpose of facilitating the formulation, coordination and implementation of immigration policies and programs with respect to the admission of foreign nationals to the province.

However, the Canadian Citizenship & Immigration authorities still maintain exclusive jurisdiction in the areas of visa issuance, and medical and criminal inadmissibility.

Applicants, who are intent on settling in Quebec after acquiring Canadian permanent residence, are encouraged to file their applications for a Quebec Certificate of Selection with the appropriate Quebec Delegation outside Canada. Once this undertaking is completed and approved, the appropriate Canadian visa office would review the appropriate applications for Canadian permanent residence.

Applicants destined to Quebec or who attempt landing in Quebec without prior approval from the Quebec authorities will likely experience difficulties at a Port Of Entry. This is a sensitive issue and must be addressed by experienced counsel.

What if a prospective applicant is destined to a Province that administers a provincial nominee immigration program?

A number of provinces have concluded agreements with the Canadian government under the Provincial Nominee program, which provide for very limited selection of foreign nationals destined to one of those provinces.

Owing to the high volume of applications that are currently awaiting processing with the various provincial authorities, applicants are strongly encouraged to secure approved job offers, regardless of the point total received following a self-assessment, in order to increase their chances for approval under a provincial nominee program.

How does permanent resident status assist the visa holder in temporarily entering the United States?

Canadian permanent residents holding citizenship from the following countries, are currently exempted from obtaining entry visas for temporary visits to the United States:

Antigua, Australia, Bahamas, Bangladesh, Barbados, Belize, Bermuda British subjects), Botswana, Brunei, Cyprus, Dominica, Fiji, Gambia, Ghana, Grenada, Guyana, India, Ireland, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Malta, Mauritius, Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, St. Kitts and Nevis, St. Lucia, St. Vincent, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland, Tanzania, Tonga, Trinidad and Tobago, Tuvalu, Uganda, United Kingdom (including its colonies, territories and dependencies such as Hong Kong), Vanuatu, Western Samoa, Zambia, Zimbabwe.

How have the events of September 11, 2001 in the United States affected Canadian immigration policy?

Canadian and authorities in the United States have recently concluded efforts to further expand upon cooperative strategies in the areas of shared intelligence gathering, administration of customs and revenue policies and joint procedures on security with government agencies in the United States in order to better secure our North American perimeters. Such initiatives also include information and electronic database sharing with law enforcement agencies between G8 member countries, including Canada.

However, Canadian immigration policies increasingly reflect a more strict approach to the selection and admission of foreign nationals for reasons that relate to the volume of applicants worldwide, who are interested in relocating to Canada and therefore which do not necessarily relate to the events of 9/11.