A new and complex year

It’s a new year and, in many ways, it’s a new Canadian immigration system.

As I wrote throughout last year, there have been countless changes to the immigration program, the temporary visa process, and even the physical processing of visas. Citizenship and Immigration Minister Jason Kenney seems intent on overhauling all aspects of the program. In my practice, I use the new year as a time to reflect on what my clients’ business needs have been, and where they are going. Many significant revisions to the Canadian immigration landscape have created a compelling look back.

Changes to the Federal Skilled Worker Program are extremely welcome. A trades program, shorter Canadian-experience class qualifying times, and faster processing are all enormous benefits my clients are eager to take advantage of. While practitioners applaud the idea of eliminating the permanent residence backlog at visa posts, it seems irresponsible to do so through the process of too-bad-so-sad-your-application-is-over-thanks-for-waiting-but-no.

The backlog is being eliminated in accordance with Bill C-38.  All federal skilled worker applications filed before Feb. 27, 2008 that have not yet been processed — approximately 280,000 — are being returned as unprocessed. This means applicants who met the criteria for permanent residence under the regulations in place at the time of application, and who have been waiting in the queue for processing, will no longer have their application processed. This despite the fact many of these applicants may no longer qualify under current processing standards.

One of the things often heard from the minister, the press, and your average citizen is the process needs to be open and fair. The most constant refrain has been: reward those who have worked hard and gone through the proper channels. By not processing these applications, we send a message that fairness and transparency are not important to the Canadian process. This should not be our message.

There have also been changes to the temporary visa process, including work permits, which is the bulk of my practice. These changes have occurred at all stages of the process through Labour Market Opinion applications with Service Canada, to applying for a new work permit and visa with Citizenship and Immigration. There are new compliance issues, more accountability for employers, and a maze of “where/how to file” visa applications that seems to change daily.

This is especially important for in-house counsel and corporate human resource departments. Many large companies already have a global mobility policy in place that governs what the company pays for, what the employee pays for, and at what point during the employment term a permanent residence application will be considered. But with so many changes, and on-going uncertainty in the system, these sorts of decisions need to be made early. Most companies will benefit from this type of global mobility policy, and it’s crucial this is looked at now rather than later.

Internally, companies need to determine where responsibility lies, who is accountable for what information, and their own comfort with inevitable risk. They need to understand the system and their own limitations within it. A full assessment of when an immigration matter can be handled by in-house counsel and when it needs to be outsourced to an immigration professional is necessary. This type of information takes analysis and understanding of the laws. This is where an immigration team can help.

For example, if a company is trying to bring in a foreign worker and requires a labour market opinion, it must make a number of assessments prior to filing the application. The company must ensure bona fide recruitment for the role has occurred, all eligible applicants have been considered, the wage meets Canada’s prevailing wage for the region where the employment will take place, and a host of other concerns. Further, the company has to go through a full assessment of the compliance attestations on the labour market opinion application form to ensure accurate information is provided as part of the application process. Within that process, there must be an understanding of how the rules are interpreted, where there is flexibility, and where and how the risk may affect the company. It’s an increasingly complex system.

Immigration to Canada used to be seen as the easier, younger sibling to U.S. immigration, but that impression is long gone. These new rules have increased the exposure to risk for many companies and it’s important a thorough understanding of the process exists with any stakeholder.

I know it sounds like a plug for more business but it’s now more important than ever for representation throughout this process. Companies need to know exactly what their liability and risk are. Individuals need to not only know and understand the process, but be able to quickly respond to changes in the rules (not to mention the application forms!). In-house counsel need to be aware of the obligations the ever-changing system casts on the employer and its employees.

Change is good and I am hopeful much of the reform will result in improvements. 2012 was a volatile year for immigration. I have no doubt that 2013 will prove just as interesting. Watch this space.

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