november 2012

business immigration

Canadian visitors to the united states

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Citizenship and immigration Canada’s intention to Create a new skilled trades Program

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employers take note – new rules for temporary Foreign Workers

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Changes to Family Class sponsorship

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Changes, Changes, Changes

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Business Immigration and other issues of On Record are available on our web site www.bdplaw.com

Business Immigration, Editor-in-Chiefrita r. tripathy rrt@bdplaw.com(403)260-0235

Business Immigration, Managing Editorrhonda g. Wishartrwishart@bdplaw.com(403)260-0268

Contributing Writers and Researchers:rita tripathy, ravina mann and Jocelyn Fink

ContactFor additional copies, address changes, or to suggest articles for future consideration, please contact the managing editor.

General Noticeon record is published by bD&P to provide our clients with timely information as a value-added service. the articles contained here should not be considered as legal advice due to their general nature. Please contact the authors, or other members of our business immigration team directly for more detailed information or specific professional advice.

On Record Contents:

Business ImmigrationBD&P partner Rita Tripathy, assists clients, both individual and corporate, in a complete range of immigration issues, including bringing foreign nationals to work in Canada and transferring individuals to the United States. Immigration laws, regulations and procedures undergo regular changes and Rita can help clients’ navigate the system and find solutions that best suit their needs.

Rita can assist clients in a variety of employment matters including obtaining work permits for Canada, and transferring workers to the U.S. and elsewhere. She is able to draw on the skills and experience of practitioners in other practice areas within the firm including those of our Employment & Labour and Tax teams. Rita has working relationships with experienced U.S. Immigration counsel should the need arise.

signiFiCant areas oF serviCe:• obtaining Labour market opinions or opinions for exemptions

of Labour market opinions • obtaining work permits in Canada, the u.s. and other jurisdictions • obtaining u.s. non-immigrant visas • securing Canadian temporary resident visas and study permits • extending Canadian and u.s. visa permits • acquiring and maintaining Canadian permanent residence status

– Preparing Alberta Immigrant Nominee Program,Canadian Experience Class and Federal Skilled Worker Class applications

• acquiring and maintaining u.s. permanent residence status• Facilitating intra-company cross-border transfers • obtaining Canadian citizenship and Certificates of Citizenship • sponsorship of family members

BD&P’S Immigration Lawyerrita r. tripathy 403-260-0235 ............................................................................................................................... rrt@bdplaw.com

if you would like any further information on any members of our team, such as a more detailed resume, please feel free to contact the team member or the managing editor. You may also refer to our website at www.bdplaw.com.

2400, 525-8th avenue sW, Calgary, alberta t2P 1g1Phone: 403-260-0100 Fax: 403-260-0332

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Do Canadians Need a Visa to Visit the United States?“Visitor” definedU.S. immigration laws permit Canadian visitors to visit the United States for personal or business reasons. Visitors may engage in tourist activities, make social visits to relatives or friends and may generally engage in limited business activities such as attending business meetings, conferences and trade shows.

One should be aware that visitors are generally not allowed to engage in employment or performance of any labor or services (even unpaid labor or services), nor accept remuneration for

business activities from a U.S. source nor engage in business activities where the primary business benefit accrues to a U.S. party or business entity.

Violations of visitor restrictions are subject to severe penalties under U.S. immigration law.

Canadian CitizensGenerally, Canadian citizens do not need a visa to visit the United States. Instead, Canadians must carry a passport or an Air NEXUS card to enter the United States by air.1 Application for entry into the United States as a visitor may require demonstration of legitimate purposes, as well as one’s intention to return to Canada following the visit.

Canadian Visitors to the United StatesBy Rita Tripathy and Jocelyn Fink, Summer Research Student

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In certain circumstances, a visa may be required for Canadian citizens. One will require a nonimmigrant visa if one is:

•Travelling to the United States solely to conclude a marriage with an American citizen (“fiancé”),

• A child of a fiancé,

• A government official,

• A treaty trader or investor,

•An American citizen’s spouse, travelling to the United States to complete the immigration process,

• A child of an American citizen’s spouse travelling to complete the immigration process,

• An informant travelling to provide information on a criminal organization,

• An informant travelling to provide information pertaining to terrorism, or

• A family member of an informant2

Canadian Permanent ResidentsUnlike Canadian citizens, Canadian permanent residents must obtain a nonimmigrant visa before visiting the United States. However, a permanent resident is exempt from obtaining a visa if he/she is a citizen of a country who participates in the Visa Waiver Program (VWP).3 Under this program, a permanent resident may visit the United States for up to ninety days.4 One may enter the United States under the VWP if:

• One is authorized to travel under the Electronic System for Travel Authorization (“ESTA”). An application to ESTA must be submitted before travel. Applications can be obtained on the U.S Customs and Border Protection Website (http://www.cbp.gov/). When applying to ESTA the traveler must disclose information such as name, country of citizenship, telephone number, passport number, physical or mental disorders, criminal past, etc.;5

• One has a passport valid six months past your intended stay in the United States;

• One’s purpose for travel is business or tourism;

• One has a return trip ticket on an approved airline; and

• One intends to stay in the United States for 90 days or less.6

Canadian Citizen’s Length of Stay in the United StatesA Canadian citizen wishing to enter the United States for pleasure will typically be granted entry for six months (though admission may be granted for a maximum of one year). Canadians

wishing to visit the United States for business will typically be admitted for a period of time which is fair and reasonable for completion of the purpose of the visit (up to a maximum of 1 year, but generally limited to six months) as determined by the border officer. For both tourist and business visitors, extensions of stay may be granted in increments of no more than six months at a time.

Duration of Passport Validity Most visitors to the United States need a passport valid for six months beyond their intended stay. However, Canadians are exempt from this rule and require a passport valid only for the duration of their intended stay.7

Staying in the United States for Longer than the Initial Period of AdmissionCanadians may extend their stay beyond the initial period of admission by filing a request with U.S. Citizenship and Immigration Services (USCIS). This request must be made before the authorised stay is expired. The USCIS recommends the request be made at least 45 days prior to expiry. An extension of stay may be granted if:

• One was lawfully admitted to the United States,

• One has not committed any act that makes you ineligible,

•There is no other factor requiring one to leave the country,

•The request was submitted before one’s authorized period of stay expires, and

•One’s passport will remain valid for the requested extension.8

When requesting an extension of stay, the USCIS generally requires documentation proving sufficient financial resources to cover one’s expenses during the extension period. Moreover, one will likely be required to submit supplemental evidence of the temporary nature of the extension, and of one’s intention to return to Canada.

An extension of stay is not possible for a permanent resident of Canada who entered the United States under the Visa Waiver Program.9

Penalty for Staying in the United States Beyond the Authorized PeriodIf an individual overstays the authorized period the following penalties may apply:

• Those who remain in the United States for more than 180 days but less than 1 year past their authorized period of stay will be inadmissible to the United States for three years.

• Those who remain in the United States for longer than 1 year beyond their authorized period of stay will be inadmissible to the United States for ten years.10

• For a permanent resident of Canada who entered the United States under the Visa Waiver Program, any overstay may prevent that person from utilizing the Visa Waiver Program for future travel. Instead, that person will be required to first obtain a visa from a U.S. Embassy or Consulate abroad.

Alternative Ways for Inadmissible Persons to Gain Entry into the USA visa exempt Canadian citizen who is inadmissible due to overstay may apply to Customs and Border Protection (CBP) in advance. Although this process can take up to one year, the CBP can temporarily waive inadmissibility.11

This option is only available for visa exempt individuals, such as Canadian citizens. Permanent residents of Canada are to contact a Consulate of the United States to discuss their situation.12

Footnotes

1 Visiting the U.S. – Documents required for Canadian Citizens / Residents / Landed Immigrant to enter the U.S. and how long they can stay, online: U.S Customs and Border Protection < http://www.cbp.gov/>

2 Visa Requirements – Citizens of Canada, and Permanent Residents, online: Bureau of Consular Affairs <http://travel.state.gov/>.

3 For a list of the participatory nations please visit the United States Bureau of Consular Affairs at http://travel.state.gov/.

4 Supra, Note 25 Electronic System for Travel Authorization, online: U.S

Customs and Border Protection <http://www.cbp.gov/xp/cgov/travel/id_visa/esta/>.

6 Visa Waiver Program, online: Bureau of Consular Affairs <http://travel.state.gov/visa/temp/without/without_1990.html#vwp>.

7 Six Month Club Updates, online: U.S Customs and Border Protection < http://www.cbp.gov/xp/cgov/travel/id_visa/>.

8 How do I…Extend My Nonimmigrant Stay in the United States, online: U.S Citizenship and Immigration Services <http://www.uscis.gov/USCIS/Resources/C1en.pdf>.

9 Ibid.10 Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, §301(b)(B)(i)(I)&(II) (1996).11 Immigration and Nationality Act, § Section 212(d)(3).

An applicant may find the waiver (Form I-192) on the U.S. Citizenship and Immigration Services website (http://www.uscis.gov/).

12 Entry into the U.S. – Canadian with criminal record or overstay, waiver, online: U.S. Customs and Border Protection < http://www.cbp.gov/>.

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Canada’s Immigration Minister, recently revealed proposed changes to the Federal Skilled Worker Program (“FSWP”) expected to be brought in later in 2012. These changes which will essentially create a new skilled trades program, aim to address Canada’s growing labour shortages in construction, natural resources and similar industries. The new program is important for both employers, hoping to fill positions in their companies, as well as for applicants facing a myriad of challenges in the complexities of the current system.

The existing program looks at the worker’s overall capacity to adapt to Canada’s labour market. FSW applicants are assessed against a 100-point grid system, with a pass mark of 67. The grid takes into consideration six primary evaluation factors, including (i) the applicant’s official language ability; (ii) education; (iii) work experience; (iv) age; (v) arranged employment/ prospective job offers in Canada; and (vi) adaptability elements. The proposed changes do not alter the selection criteria established in the current system, but rather affect the number of points assigned to each factor and the manner each factor is assessed.

Under the new skilled trades program, Citizen and Immigration Canada (CIC) intends to create a separate and streamlined program for skilled trades’ persons. Skilled trades include occupations in construction, transportation, manufacturing and service industries. Such tradespersons are in high demand in Canada, particularly in the natural resources and construction sectors. This system would assist employers in more quickly filling vital jobs in these industries. The changes would place a greater emphasis on practical training and work experience, rather than formal education, thereby reducing the hurdles for many applicants. Nevertheless, skilled trades’ applicants would have to meet a minimum language requirement.

In early November, 2012, CIC announced that new applications will be processed on a “just in time” system, facilitating the processing of applications within a significantly shorter time frame—less than a year, as opposed to the potential eight years under the former FSWP. The “just in time” system aims to recruit individuals with the right skills to meet Canada’s labour market needs, fast track their applications, and enable the applicants to begin working within a period of months, instead of years, all in an effort to reduce the total number or outstanding applications amongst the FSWP backlog.

Citizenship and Immigration Canada’s Intention to Create a New Skilled Trades ProgramBy Ravina Mann

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BackgroundHistory informs us that the Alberta government takes the rights of Temporary Foreign Workers (TFWs) seriously. In April 2009, multiple charges were laid against employer companies following an investigation into the deaths of two TFWs.

The Temporary Foreign Worker Program (TFWP) was designed by the federal government to allow Canadian employers to hire foreign workers to address short term labour and skill shortages. Service Canada authorizes employers to hire TFWs through an authorization known as a Labour Market Opinion (LMO). Due to the increased number of these workers arriving in Canada, and abuses by some employers, the federal government enacted amendments to the program. These changes came into effect on April 1, 2011.

This article will focus primarily on the following amendments to the TFWP:

• the four year limit on Work Permits;

• the consequences of non-compliance by employers; and

• the criteria for a genuine offer of employment.

The Four Year Limit Under the amended TFWP, foreign workers will only be able to hold a work permit for a cumulative period of four years and would not eligible for a subsequent work permit for a further four years. The clock starts on April 1, 2011. This limit does not affect eligibility for permanent residence; the TFW may still apply, at any time, while they are legally in

Canada or after they return home, provided they qualify for residency. There are some TFWs who are exempted from the four year limitations period:

• TFWs in managerial and professional occupations,

•TFWs who have applied for permanent residence and received the necessary positive assessments,

• TFWs employed under international agreements (i.e. NAFTA), and

• TFWs who are LMO-exempt (i.e. Intra-Company Transfer).

With the new four year limit, employers are well advised to plan ahead for permanent residency for their highly valued foreign employees.

employers take note

new rules for temporary Foreign Workers By Rita Tripathy and Ravina Mann

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employers take note

new rules for temporary Foreign Workers By Rita Tripathy and Ravina Mann

LMO Assessment Process: Ensuring ComplianceThe following is a list of requirements that an employer should consider to ensure compliance with the Regulations and LMO application:

1. Employers must provide the following information along with the LMO application:

• CRA business number;

• a description of the main business activities;

• an explanation of how hiring a TFW meets the employment needs; and

• signed statement attesting they will abide by all the TFW Program requirements.

2. Employers may be asked to provide a number of documentation, including payroll

records, time sheets, a job description, the TFW’s work permit, and registration with provincial/ territorial workplace safety.

3. All new employers to the TFW Program, with the exception of Live-in Caregiver (“LCP”) employers, will be required to provide a copy of their business license or permit.

4. Where a business license or permit is not required by the municipality or province, the employer may also submit the following:

• CRA documents (T4 Summary of Remuneration Paid, Schedules 100 and 125 of the T2 Corporation Income Tax Return, T2125 Statement of Business or Professional Activities);

• business contracts for goods and/ or services;

• provincial/ territorial worker’s compensation clearing letter; and

• attestation by a lawyer, notary public or chartered accountant confirming the employer exists and the type of business the employer operates.

5. With respect to the LCP’s, an employer must ensure all requirements are met, including the following:

• a reasonable need for a full-time live-in caregiver to provide child care, elder care or care for a disabled person;

• the employer’s capacity to provide adequate, private accommodations to the live-in caregiver; and

• the employer has sufficient financial resources to pay the live-in caregiver.

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the reality is that many workplaces have a fluid environment where employees are asked to accept changes in position and/or pay. employers who enact such changes without justification or properly informing the appropriate government authorities may be denied the ability to participate in the tFWP going forward.

6. For returning employers, ensure that they have met the terms and conditions of employment stipulated in previous LMO confirmation letters, to ensure the job itself is “substantially the same”.

7. TFWs employed in one location cannot work in another location without the employer applying for and receiving a new confirmed LMO, and the workers receiving a new work permit from CIC.

Consequences of Non-ComplianceOne of the most important changes to the TFWP from an employer’s perspective is the consequences for an employer’s failure to comply with TFWP standards, namely, failure to comply with a prior LMO. The new LMO application requires the employer to provide any temporary worker with “wages, working conditions and employment in an occupation that are substantially the same” as those described in the prior LMO. Employers who fail to do so may be found to be in non compliance and be subject to a two year ban from hiring any foreign workers. An employer found to be in non compliance will be given the opportunity to justify any discrepancies between the LMO and company practice and, if the employer takes corrective action to account for the differences, this may reverse an initial finding of non-compliance.

The consequences of a finding of non compliance are wide and varied, possible penalties including:

• denial of any pending LMOs,

• revocation of positive LMOs,

• declaration of ineligibility for participation in the TFWP for the following two years,

• publication of the employers information on the Citizenship and Immigration Canada website, and

• prevention of temporary workers from entering into an employment contract or extending an existing contract with an offending employer.

Prior experience resulting from the prosecutions commenced in 2009 is an indication that the Government of Alberta will not hesitate to dole out consequences as severe as a two year ban where a finding of non-compliance is made.

The Genuine Job Offer Under the amended TFWP, the requirement for employers to demonstrate the genuineness of the job offer is an entirely new addition — no such requirement existed previously. Employers who are new to the TFWP may be asked to complete an employer declaration form which requests general corporate information as well as a description of the principal business activity of the employer. It is noteworthy that the examining officer has discretion to request more information if he or she deems it necessary.

The four factors used in the assessment of the genuineness of a job offer are as follows:

1. whether the job offer was made by an employer who is actively engaged in business. To satisfy this requirement the employer may be required to produce T4s and other relevant business documents. If the employer is a start up company, a copy of the incorporating documentation may be required as well as an attestation by a lawyer or notary substantiating that the employer is actively engaged in the operation of business in Canada,

2. whether the job offer is consistent with the reasonable employment needs of the employer. To satisfy this factor, the employer is required to demonstrate the purpose of the TFW, more specifically, how the position will fit into the greater business needs of the employer,

3. whether the employer is reasonably able to fulfill the terms of the job offer. The primary concern is that the employer has the ability to financially support the TFW. Documents addressing the employer’s financial stability will likely be required where employers are new to the program, and

4. whether the employer shows past compliance with federal/provincial/territorial laws that regulate employment in the jurisdiction where the TFW will be working. This final factor is closely related to other amendments to the TWFP, which can be viewed as an effort to ensure that past violators of the TFWP standards will be denied participation in the program.

The amendments are a clear attempt on the part of regulators to further protect foreign workers, particularly from past employers who have demonstrated a lack of respect for workers rights. Where an employer is found to be in violation of any of the four factors, the result will be a finding that future job offers are disqualified for a period of two years, and the employer will be unable to hire or renew a work permit for any foreign national during that time. Such a finding will often involve examining whether the employee’s wages, working conditions or occupation were substantially the same as that which was initially promised. The reality is that many workplaces have a fluid environment where employees are asked to accept changes in position and/or pay. Employers who enact such changes without justification or properly informing the appropriate government authorities may be denied the ability to participate in the TFWP going forward. There are certain preventive measures that employers can take including specifying on the LMO application form and on any offer letters whether the employee is entitled to regular salary increases in accordance with corporate policy. Companies should also educate their Human Resources personnel on the requirements to advance report job promotions, location changes and changes in job duties that might change the National Occupation Classification.

Going ForwardThe legislation is very new, and it will be interesting to see how Service Canada interprets it in practice. We are already experiencing longer waits for LMO opinions presumably because of the greater time required to scrutinize applications.

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Changes To Family Class SponsorshipBy Ravina Mann

In order to sponsor a foreign national, the criteria that an individual must meet are set out in Section 130 of the Immigration and Refugee Protection Regulation1 (“IRPR”). The current family sponsorship program has two components, namely (i) spouses and dependent children; and (ii) parents and grandparents. To be a sponsor, the following requirements must be met:

1. The sponsor and the sponsored relative must sign a sponsorship agreement that commits the sponsor to provide financial support for the relative, if necessary. The agreement must also state that the person becoming a permanent resident will make every effort to support him/herself.

2. The sponsor must provide financial support for a spouse, common-law or conjugal partner for three years from the date the individual becomes a permanent resident.

3. The sponsor must provide financial support for a dependent child for 10 years, or until the child turns 25, whichever comes first.2

As of November 5, 2011, no new applications to sponsor parents or grandparents will be accepted for processing until November 5, 2013, in order to process the large backlog of existing family sponsorship applications. This pause was implemented in conjunction with the introduction of a new “Super Visa”, which is a long-term visa for parents and grandparents, remaining valid for 10 years, allowing multiple entry

and residence of up to 24 months at a time without additional visa requirements. This “Super Visa” is also intended to be easier and faster to obtain, than the obtaining of the final approval of permanent residence applications. This would allow parents and grandparents to visit Canada more quickly and with greater ease. This freeze, however, does not affect sponsorship applications for spouses, partners, dependents or adopted children and other eligible relatives.

More recently, on March 2, 2012, amendments to the eligibility requirements for spousal or partner sponsorship applications were implemented. These changes essentially bar a previously-sponsored spouse or partner from sponsoring a new spouse or partner within five years of becoming a permanent resident, even if the sponsor acquired citizenship during that period.

The objectives of these amendments appear to be: (i) facilitating a more efficient and timely family class application process; (ii) strengthening the integrity of Canada’s immigration system and creating a deterrent to relationships of convenience; and (iii) clarifying portions of the existing Section 130 of the IRPR with regards to sponsorship.

Footnotes

1 SOR /2002-2272 http://www/cic.gc.ca

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Canadian Experience ClassA proposed plan to expedite skilled workers’ transition from temporary to permanent residence for the Canadian Experience Class has been announced. The current requirement before one can apply for permanent residency under the Canadian experience class is 24 months of full time work experience within the last 36 months. The new proposed regulatory change will reduce this requirement from 24 to 12 months of full time work experience. One of the benefits of this change is to make it easier for skilled trades persons who are working in Canada to transition to permanent residents, given that their work is often project-based and

CHANGES, CHANGES,By Rita R. Tripathy

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can be seasonal. The current processing time for the Canadian Experience Class is approximately 14 months from the time that the application is submitted until a decision is made.

The initial proposed change was announced in April of 2012, although there has been no confirmation to date as to when the proposed regulation will come into effect.

Accelerated Labour Market OpinionIn April of 2012, the Human Resources and Skills Development Canada (HRSDC)/Service Canada implemented a new accelerated LMO initiative (A-LMO). The initiative reduces the paper requirements and more importantly provides for the issuance by HRSDC ( if an employer is eligible) of a positive A-LMO within 10 business days, compared to the traditional time of 10-12 weeks.

In order to qualify for the A-LMO, the occupation must be for a higher skilled position (i.e. Skill Type O and Skill Level A and B), such as management, professional and technical occupations. The employer must also:

• Meet the required advertising and recruitment efforts that were previous recquired for LMOs;

• Meet the wage requirement, although a wage up to 15% less than the posted wage will be accepted if it is the same wage paid to Canadian or permanent resident employees in the same occupation;

• Have been issued at least one positive LMO in the previous two years;

• Have a clean compliance record with the Temporary Foreign Worker Program (TFWP) within the last two years;

• Have agreed to all of the attestations included in the A-LMO application, consenting to participate in a post A-LMO compliance review;

• Not have been the subject of an investigation, infraction or a serious complaint; and

• Not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.

Temporary Foreign Worker Unit Moves from Calgary to TorontoThere has been a centralization of Temporary Foreign Worker Units (TFWU) in Toronto, Ontario and Montreal, Quebec. The TFWU in Toronto and Montreal are now the sole points of contact for Canadian employers and their representatives. The Toronto TFWU is responsible for services to the employers in Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Yukon, North West Territories, and Nunavut.

The TFWU provides opinions as to whether a case meets an LMO or work permit exemption. Although they provide opinions, the final decision to issue an LMO or work permit exemption is the decision of the Canada Border Services Agency officer at the port of entry into Canada.

COmmON SENSE, UNCOmmON INNOVATION.BD&P is a leading Canadian law firm of over 140 lawyers skilled in virtually every aspect of business law and litigation.

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