The biggest focus for business practitioners this new year is the roll out of the Express Entry program. We still are learning the rules and getting our feet wet trying out the new systems, but there’s still a lot we don’t know. At the time of writing, there has not yet been a draw nor have ministerial instructions been released to detail what the coming draw will look like. In other words, we’re all waiting for Citizenship and Immigration Canada to make its next big reveal.
The online application system that rolled out in the new year has worked more smoothly than anticipated. The interface through the representative portal (the portal used by paid representatives for submitting applications) has some bugs (you can’t print out the responses in order to review with the client before submitting, for example), but the interface is relatively straightforward and the site is easy enough to navigate. Since no draw has happened yet, we do not know what the next phase of the system will look like. All indications appear to point to a new application process that will be similar in function to the current expression of interest portal.
What we don’t know is the cold facts of the system and its use to date. How many people have made an Expression of Interest and their overall points allocations? How many individuals had Labour Market Impact Assessments or received an education assessment as part of the process? Who will CIC draw? The top 1,000, let’s say, or all people eligible under a certain class? There are so many questions, and we’re all waiting for those first answers.
One of the most discussed aspects of the new Express Entry is the reliance on the Labour Market Impact Assessment required in order to rank better in the Expression of Interest pool. Applicants without an LMIA will not rank as highly as someone with one. This means those applicants who are eligible — for example, the Canadian Experience Class — but in Canada on an intra-company transfer will not score as high as the same individual who also qualifies for the CEC but has an LMIA.
This disparity seems purposeful. The government has designed a system that awards more points, thereby increasing the overall ranking and likelihood of being accepted, for those people who benefit from employers who tested the labour market before hiring them.
Whether or not an employee, or Express Entry applicant who is not yet in Canada, has an LMIA is completely and utterly not within the individual’s control. The LMIA is an employer driven application that an applicant wishing to gain more points could not file on their own behalf. There is an entire aspect of this deeply personal process of applying for Canadian permanent residence that has been stripped away from the applicant.
The government is then, in essence, letting employers determine who has labour market value. In doing so, the government seems to have forgotten that labour market tests are not required for intra-company transferees because it has been decided in the guidance that there is always a significant labour market benefit to those individual’s Canadian employment.
Forcing employees to request that their employers go through the LMIA advertising hoops in order to increase their chances of selection also comes at a time when there is an increased tightening on the Temporary Foreign Worker Program.
This tightening of both the Temporary Foreign Worker and International Mobility Programs continues to mean Canadian businesses are struggling to bring in foreign talent. Even companies with strong Canadian ties may have difficulty meeting the exacting requirements set out by Employment and Social Development Canada.
Across the country, we’ve seen a decrease in officers’ willingness or ability to apply discretion and an increased reliance on the letter of the rules. While the transparency of a red-letter application of the rules may be beneficial from an overall processing perspective, it can be frustrating for employers in situations where a legitimate exemption may apply.
Guiding clients through these new changes can be frustrating, but it can also be exhilarating. It has given us lawyers the opportunity, and in some instances the mandate, to strategize more with our clients, to speak more with government officials, and to review and re-review the regulations and guidances.