Canada’s Current Express Entry System

Last Updated: 16 April 2020.

Access the PDF version of this article here.

This article outlines the current Express Entry system, and explores what it means for Canada’s evolving immigration landscape.

The Canadian Government utilizes the Express Entry system to select permanent immigration candidates from a pool of potential candidates who are eligible under one of the three Federal High Skilled Immigration Programs: the Federal Skilled Work Program, the Federal Skilled Trades Program, and the Canadian Experience Class.

The current Express Entry process is more akin to an online dating site: each prospective economic immigrant fills out an online profile. These profiles are assessed on ‘core human capital’, skill-transferability and additional factors relating to a provincial nomination, a qualifying offer of arranged employment, and Canadian study experience. Upon completing the profile, the electronic database assigns a points total based on the Comprehensive Ranking System (CRS) score, out of a maximum total of 1,200 points. This CRS score determines a candidate’s rank in the Express Entry pool. Points are awarded for factors such as Canadian work experience, education, and language skills (amongst other criteria). A profile will remain in the system for up to 12 months.

The Canadian government then periodically picks out the top-ranked profiles from the system and invites them to pay the processing fee and submit a formal application for permanent residence. Eventually, Canadian employers will also be able to access the Express Entry database in search of foreign talent.

An applicant can now also obtain additional points for good French skills. An additional 15 points can also now be earned if an applicant (or their spouse or common-law partner who will also come to Canada) has a brother or sister living in Canada who is a citizen or permanent resident of Canada. These changes allow the system to break ties between candidates with the same rank in the pool, based on the date and time candidates submitted their profile.

To be sure, the current Express Entry system has positive aspects. Once a potential immigrant with a current online profile receives the invitation to apply, the Canadian government has undertaken to process the application within six months—a significant improvement from processing times under the old system. As well, all former occupation-specific quota caps and moratoriums have been eliminated. One of the key intentions of the Express Entry system is to make the Canadian immigration system more responsive to up-to-the-minute labour market needs, which is a worthy goal.

However, the downsides are numerous. An applicant who uploads a profile will never be completely certain of the outcome. A worker or student’s temporary status in Canada may expire before they are ever selected. Some applicants will never be selected. The transparency concerns are numerous for a system that can change without notice at any time. Many computer system glitches also remain unresolved.

An ‘Invitation to Apply’ is not enough

In our practice, we have seen applications rejected based on the Department of Immigration, Refugees and Citizenship Canada (IRCC) errors, oversights and misinterpretations. Unfortunately, once the decision to refuse is made, it can be very difficult to reverse—even in cases where the applicant has done everything right.  IRCC has unfortunately not developed a standardized review process that a candidate can utilize when a mistaken rejection is suspected.

However, the year 2018 set an all-time record with nearly 280,000 Express Entry profiles submitted through the system, which represents an increase of more than 10% from 2017. This is the highest number of invitations issued for any one year since the Express Entry program was introduced. Ultimately, IRCC issued 89,800 invitations to apply in 2018. The first quarter of 2019 alone saw over 21,000 invitations to apply for permanent residence issued to candidates in Canada’s Express Entry System.

The Bottom Line Today

Express Entry is now Canada’s flagship immigrant management system, designed in part to address Canada’s technical skills gap while assertively embracing the challenges of a labour market in need of highly skilled professionals. Besides filling labour needs, Canada must increase the number of immigrants to prevent a fiscal and economic collapse posed by a combination of its ageing population and low birth rate. Based on extensive consultations and the evidence that shows the economic and social benefits of immigration in Canada, the government has put forward a multi-year immigration levels plan to gradually and responsibly increase permanent resident admissions to 350,000 by 2021.Therefore, Canada wants to and should invest more in the Express Entry system since it is designed to bring skilled workers that boost the economy.

We would be happy to speak to you about Express Entry and about immigration to Canada more generally. Please contact us to set up a consultation appointment.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Working in Canada: What is Work, and when is a Work Permit needed?

Last updated: 9 April 2020.

Access the PDF version of this article here.

In the Canadian immigration context, ‘work’ is broadly defined. Even volunteers, those providing services in a private residence, and student interns may require a work permit, and may run into trouble if they do not have one. This article helps to explain when a work permit is needed and why.

Beware the dreaded report from the Canada Border Services Agency (CBSA): working without a work permit! It is often a fatal allegation, and hard to disprove. Deportation can often result.

The test is balance of probabilities, and grounds to believe. The threshold is rather low. All the Canadian government needs is “reasonable grounds to believe” that a foreign national has done any work at all, even in the form of help, without having a valid work permit.

The Regulations to the Immigration and Refugee Protection Act (IRPA) contain the general definition of “work” requiring a work permit:  any “activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market”. There are currently 2 types of Canadian work permits: the open and the employer-specific work permit.

Like most of our Canadian laws, it is not the legal definition that tells the story, but instead the interpretation of it by government policymakers, immigration officials, and the courts.

The news here is rather unfortunate. Whereas business owners, managers, visitors to Canada and other foreign nationals in Canada hope for a permissive or relaxed interpretation, the opposite is generally true. The definition in the Regulations has been interpreted as broadly as can be imagined.

Businesses and employers often feel that they can skirt the law by treating the worker as unpaid or as a “volunteer”, and remunerate (i.e. pay) the worker “conditionally” only once they have received authorization to work, or once their Canadian permanent resident status is obtained.  But arrangements that include banked hours and retroactive pay for services previously rendered are unlawful.

The definition of “work” can also include unpaid employment undertaken for the purpose of obtaining work experience, such as an internship or practicum normally done by a student.  Compensation arrangements such as accommodation and meals instead of payment in money have also been considered and found to require a work permit.

Tasks as nominal as unpacking boxes, carrying vegetables to a kitchen in a restaurant, cooking or food preparation in the restaurant kitchen, answering the phone of the business and taking messages, taking orders from customers and childcare have all been determined to be significant enough to constitute work requiring a work permit. If the task—no matter how insignificant in the eyes of the worker or of the business—might have reasonably deprived someone else of employment, then a work permit is required.  Another way to look at it is like this:  if the employer benefitted in any way at all from the task(s) or services performed by the foreign national, then it is fair to assume that a work permit is required.

Courts have also grappled with the situation involving an individual, often a visiting relative, performing tasks in a private residence. There is some good news here:  not all tasks performed by a visitor for a relative are considered work requiring a work permit, even when the Canadian resident would normally need to hire a paid employee to have the tasks completed. Consider, for example, babysitting, cleaning, or garden work. These tasks would not normally require a work permit when done in a private residence by a visiting family member.

Courts have determined that it is the intent of the legislation to protect employment opportunities, no matter how minor, for all citizens and permanent residents of Canada. Arguably, this rationale also applies for those who have already been authorized for temporary work permits.

The Department has even tried to define what is NOT work: any activity that does not really “take away” from opportunities for Canadians or permanent residents to gain employment or experience in the workplace.

The lesson is this: it is all in the eye of the beholder. Foreign nationals and Canadian organizations do not want to be involved in any litigation where the issue is work without authorization. Such hearings are stressful, costly, and usually unsuccessful, because of the broad interpretation. If a work permit exemption is being relied upon, it is best to disclose and seek it ahead of time, to have the regulator review the circumstances and to approve it.

We would be happy to speak to you about your specific questions surrounding authorization to work in Canada. Please contact us to set up a consultation appointment.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Express Entry: Top 5 Tips

Last Updated: 16 April 2020.

Access the PDF version of this article here.

So what is a potential applicant to do?  Here are our Top Five Tips.

(1)  Eligible? Apply Now.

In order to submit your name into the pool, you need to meet basic qualification criteria. The first step is to determine whether your language skills, education, and work experience are sufficient to allow you to apply under one of the economic immigrant categories listed above. It is advisable to create your profile as soon as you are eligible.

(2)  ‘Job Offer’ All the Way

A job offer in Canada is a significant positive factor. Some Canadian job offers are made following a positive Labour Market Impact Assessment (LMIA), while others are not. If you can secure a valid job offer in Canada (offer of arranged employment), your chances of selection from the pool go up significantly. If this is a potential option in your case, it is very likely worth exploring. There are bonus points for this.

(3)  Ensure You Have the Right Documents

Anything you state on your Express Entry profile will eventually need to be backed up with documentation once you are invited to apply. It is essential to have the correct documentation in place before submitting your profile. If you state something that turns out to be false, you risk being found inadmissible for misrepresentation—an offence with very serious consequences. Exercise caution in completing the profile.

(4)  Update Your Profile

Once your profile is built, you will know your points total. Since the government publishes the lowest points scores accepted on each draw, you will have a sense of how you measure up, and your likelihood of selection. If your points total is in the low range, there may be steps you can take to increase the total, such as re-taking a language test, or obtaining a valid job offer. Your profile can always be updated, so these steps may be worth pursuing.

(5)  Work with an Experienced Immigration Lawyer

Canadian immigration law professionals have been following the Express Entry developments closely. We can help ensure that your profile is as strong as possible and can recommend ways to make it stronger. The assistance of a skilled representative can help avoid processing delays, avoid other pitfalls, and increase your prospects for successful immigration to Canada.

We would be happy to speak to you about economic immigration to Canada. Please contact us to set up a consultation appointment.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Spousal Sponsorships and Appeals: What You Need to Know

Last Updated: 9 April 2020.

Access the PDF version of this article here.

A Canadian citizen or permanent resident is entitled to sponsor their spouse, common-law partner, same-sex common-law partner, or conjugal partner for Canadian permanent residence. The concept may be simple, but the process can be fraught with complications and delays. This article describes some important considerations, and discusses the options if your application is refused.

 Should you submit an “Inside Canada” or “Outside Canada” Application?

For spouses or common-law couples ready to pursue Canadian spousal sponsorship, the process can be daunting. One of the first decisions to be made is whether to pursue the “inside Canada” or the “outside Canada” spousal sponsorship process. If the applicant being sponsored resides outside Canada and will continue to do so until the sponsorship is finalized, the “outside Canada” process must be chosen. Sponsored spouses who travel back and forth to Canada often will also likely select the “outside Canada” process.

Spouses who wish to stay in Canada throughout the process may benefit from filing an “inside Canada” application. A major advantage is that this process allows the sponsored person to obtain a Canadian work permit upon “first-stage approval”. In some cases, an “inside Canada” application may also serve to prevent deportation for an applicant who is in Canada without status. However, applicants who submit an “inside Canada” application do not have a right of appeal if the application is refused.

These are just some considerations. An experienced immigration lawyer can help you to determine which process is best for you.

 The Application Process

While the application process is technically divided into two stages, the sponsor and applicant will fill out all their paperwork at the same time and include it within the same application package. All documents on Immigration, Refugees and Citizenship Canada’s checklist must be provided from the outset, and all forms must be properly completely. If documents are missing or mistakes are made, the application will be returned without being processed.

 (1) Stage 1 Processing 

The first stage involves an evaluation of whether the Canadian citizen or permanent resident spouse meets all the eligibility criteria to act as sponsor. Immigration, Refugees and Citizenship Canada’s Mississauga processing center conducts this first evaluation. The sponsor must:

– Be a Canadian citizen or permanent resident;

– Be 18 years of age or older;

– Be resident in Canada or prove intent to return to Canada upon finalization of the sponsorship process;

– Not be bankrupt or in receipt of social assistance;

– Not be ineligible for reason of previous sponsorship default or a serious criminal conviction.

Unlike other types of family sponsorship, a person sponsoring their spouse or partner does not need to meet a minimum income threshold. However, the sponsor must undertake to provide for the sponsored partner’s basic needs and ensure that they do not use social assistance for a period of three (3) years, and ten (10) years for any dependent children or until age 25, whichever comes first.

(2) Stage 2 Processing

Upon first-stage approval, the application is transferred to a different processing centre or visa office for Stage 2 processing. This second stage involves an evaluation of whether the spousal relationship is genuine, and whether there are any inadmissibility issues that would bar the applicant from becoming a Canadian permanent resident (e.g. medical or criminal inadmissibility).

The former Harper government made it a priority to combat “marriages of convenience” that were entered into primarily for immigration purposes. The officers who evaluate spousal sponsorship applications are on the lookout for signs that a relationship is fraudulent. Where the officer has concerns, the applicant will be called in for an interview. If the applicant cannot successfully address the concerns of the visa office, the spousal sponsorship application will be refused.

In the case of relationship breakdown, the sponsored person may not sponsor a new spouse or partner for a five (5) year period.

 Overcoming Refusals

What are the options when a spousal sponsorship application is refused? It is always possible to withdraw the application and re-apply. This course may be recommended where new information or new developments since the time of the initial application strengthen the application significantly.

The other option, for applications that were submitted from outside Canada, is to appeal the refusal to the Immigration Appeal Division of Canada’s Immigration and Refugee Board. Sponsors have the right to go before an independent Immigration and Refugee Board decision-maker to argue why the refusal decision should be overturned. The sponsor may present updated evidence to show the genuineness of the relationship.

If your appeal before the Immigration and Refugee Board is unsuccessful, it may be possible to seek judicial review before Canada’s Federal Court.

The appeal process is long and arduous. It is currently taking up to two years to receive a date to appear before a decision-maker. This prolonged period of separation and uncertainty can be incredibly difficult for couples.

How an Experienced Immigration Lawyer Can Help

The spousal sponsorship process can be long, complicated and stressful. Our team of experienced immigration professionals will assist you every step of the way. We will help you to avoid the significant delays that can be caused by omitted documents or improperly filled forms. We will also help to make your application as persuasive as possible. In other words, we can help to maximize the chances of success. This has the potential to save you significant time, money, strain and separation in the long-run.

If your application is refused, our team can help you determine whether it is worthwhile to pursue an appeal. If you do choose to file a spousal sponsorship appeal, we will help you navigate the process, put together strong supporting evidence, prepare you to testify, and advocate for your rights before the Immigration and Refugee Board and/or the Federal Court.

We would be happy to speak to you about your spousal sponsorship matter. Please contact us to set up a consultation appointment.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Canada’s Citizenship Act: What You Need to Know Now

Last Updated: 9 April 2020.

Access the PDF version of this article here.

Bill C-6, an Act to further amend the Canadian Citizenship Act and make consequential amendments to another Act, received Royal Assent of 19 June 2017. This article outlines all relevant changes and amendments that have been made to the Citizenship Act since 2017 to the present.

Residency Requirement

The new legislation eliminates the discretionary authority to equate “residency” with “establishment in Canada”. Citizenship will now only be granted if the residency requirement is met by way of physical presence. The residency requirement is also being made much more onerous:.

The following changes took effect with Bill C-6 becoming law:

Residency Requirements

  • Citizenship applicants must be physically present in Canada for three years out of five years (1,095 days), with no specified minimum number of days per year, up to the day before signing the citizenship application;
  • Applicants must file Canadian income taxes, if required to do so under the Income Tax Act, for three out of five years, matching the new physical presence requirements; and
  • Applicants may count each day they were physically present in Canada as a lawful temporary person (ie. visitor, student or worker) or protected persons, before becoming a permanent resident, as a half-day toward meeting the physical presence requirement for citizenship, up to a maximum credit of 365 days, within five years preceding the date of application. If the residency requirement and other existing eligibility requirements (e.g. language ability) are met, potential Canadian citizenship applicants are well-advised to apply without delay.

Intent to Reside

  • Applicants are also no longer required to intend to continue to live in Canada once granted citizenship. This removes concerns from new Canadians who may need to live outside of Canada for personal or professional reasons.

Language Requirements

  • Applicants between 18-54 years must meet the language and knowledge of Canada requirements for citizenship. This includes being able to speak and understand in either French or English and show, in English or French, general knowledge about Canada and take the Citizenship Test.

Statelessness

  • Bill C-6 also brought into force statelessness as a ground that can be considered for a discretionary grant of citizenship.

Additional 2018 Amendments

On 11 January 2018 an additional amendment took effect with Bill C-6. The Federal Court is now the decision-maker in all revocation cases, unless the individual specifically requests that the Minister make the decision.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist potential applicants with evaluating eligibility for Canadian citizenship, preparing comprehensive application packages, addressing any potential complications, and advising on the changing rules and requirements. Having accurate information and proper legal advice is key in this challenging environment. Please contact us to set up a consultation appointment.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Foreign Cooks, Chefs and Restaurant Workers in Canada

We specialize in assisting foreign cooks, chefs and restaurant workers obtain temporary or permanent status in Canada. With the recent changes to Canada’s Temporary Foreign Worker Program and the Canadian Experience Class, it has become more challenging for cooks, chefs and restaurant workers to achieve optimal status. We can help.

Our team has particular expertise in working with foreign cooks, chefs and restaurant workers, as well as the establishments that employ them. We have assisted hundreds of restaurants and restaurant employees with applications for work permits, labour market opinions (LMOs), and permanent residency in Canada.

In July 2013, the Toronto Star reported that Canada issued more work permits to foreign cooks than any other occupation. Cooks and chefs with specialized experience and expertise are always in high demand across the country.

However, the fact that the highest number of work permits were awarded to food service workers was controversial to some Canadians. Some argued that there is no shortage of Canadians to fill these jobs, so there is no need to bring in temporary foreign workers at all. More generally, Canada’s temporary foreign worker program has been under severe scrutiny in recent months.

In response to this criticism and controversy, the Canadian government has instituted measures making it more difficult for cooks and restaurant workers to obtain status in Canada. The requirements for an employer to obtain a Labour Market Opinion, the first step towards a work permit, have been made significantly more onerous. For instance, employers now need to advertise each position for at least four (4) weeks and pay a $275 processing fee per application. Employers also face strict compliance measures. Only the most motivated employers will be willing to undergo the necessary steps.

As well, due to recent changes to the eligibility criteria, permanent residence under the Canadian Experience Class (CEC) is no longer available to cooks or food supervisors. Chefs, butchers, bakers and other “National Occupation Classification B” occupations remain eligible for the CEC, but the number of accepted applications is presently capped at 200 per category per year.

In this new environment, preparing strong applications is essential. Success is certainly possible for the right foreign worker applying in the right category. Now more than ever, it is important to submit properly filled forms and good supporting documentation.

 The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both restaurants and foreign workers with assessing work permit requirements, preparing comprehensive application packages, and addressing any potential complications.

– Warren L. Creates and Jacqueline J. Bonisteel

Canada’s Temporary Foreign Worker Program: More Controversy, More Change

On April 22nd, the Federal Government barred access to the Temporary Foreign Worker Program for all food service operations. Further reforms are expected going forward, likely making the Labour Market Opinion process more restrictive and onerous across the board.

The Canadian federal government has wasted no time in responding to the controversy surrounding McDonalds’ alleged abuse of the temporary foreign worker program. A moratorium on the food services sector’s access to temporary foreign workers was swiftly imposed. Employment Minister Jason Kenney justified the sweeping move as a response to abuse of the program, and hinted that more changes would follow.

While criticism has focused on large-scale fast food operations, the moratorium applies much more broadly. All food service operations—everything from international hotel chains and top national restaurants to smaller ethnic restaurants—are now barred from hiring temporary foreign workers. The moratorium applies to lower-skilled front-line food service staff, but also to high-skilled and specialized cooks, chefs, and restaurant managers. Even occupations beyond food services, such as cleaning supervisors, sales representatives, and security guards, have now been caught by the ban.

The moratorium came into effect immediately upon its announcement on 22 April 2014.  This drastic measure follows other recent changes that have limited access to the Temporary Foreign Worker Program. At the same time, employers who maintain the right to hire temporary foreign workers face higher fees and increasingly stringent compliance measures. Advertising requirements are being applied and enforced more strictly than ever. We can expect that this vigilance will continue. Further reforms are expected in the near future, which are likely making the Labour Market Opinion process more restrictive and onerous across the board.

Predictably, the Canadian restaurant industry has criticized the changes. Restaurants Canada warned that, without access to foreign chefs, cooks and other restaurant industry workers, many smaller restaurants will be forced to close. Workers already in Canada risk being forced out.

For those affected by the moratorium, there may be alternatives. Foreign workers in Canada on existing work permits may be eligible to apply for permanent residence. With permanent residence, the need to rely on the temporary foreign worker program is eliminated altogether.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both employers and potential employees with evaluating eligibility for various immigration and temporary residence programs, preparing comprehensive application packages, addressing any potential complications, and advising on ongoing compliance requirements. Having accurate information and proper legal advice is key in this challenging environment. Please contact us to set up a consultation appointment.

– Warren L. Creates and Jacqueline J. Bonisteel

With special thanks to Rovshan Hajiyev 

Canada’s “Tour Tax” : Will New Foreign Worker Fees Cripple Music Venues?

As a result of changes to Canada’s Temporary Foreign Worker Program, certain venues will need to pay $275 for each individual foreign musician and crew member when they book musical acts from abroad. However, music venues will be exempt from paying any fees in certain situations. It is important to understand where exemptions apply and why. Where a venue is in the grey area, a strong application package can make all the difference.

Ever since the federal government announced new regulations to the Temporary Foreign Worker Program in July 2013, the impact on Canada’s live music scene has been a topic of controversy and confusion. A change.org petition denouncing the new fees payable by certain venues booking foreign talent is now approaching 150,000 signatures. Others dismiss the outcry, saying that the new fees will have no impact whatsoever, or that they are a welcome measure that will encourage more focus on homegrown artists. In this discussion, we seek to provide a balanced and informative perspective on the issue.

Who Is Required to Pay?

For venues reliant on live performances or overseas musicians considering a tour in Canada, it is important to first get the facts straight. In many cases, a foreign performing artist touring Canada will not require a work permit. In these “work permit-exempt” cases, no government fees are payable by either the musicians or the venues booking them.

Work permit exemptions exist where foreign artists are booked to perform at venues such as festival grounds, stadiums, concert halls, casinos, or theatres. In general, so long as the engagement is a short-term ‘gig’ and the venue is not primarily a “bar, restaurant or similar establishment”, no work permit is needed, and no fees are payable. However, a longer-term engagement involving regular performances at the same venue likely would not be exempt. More detail on performances in “bars, restaurants or similar establishments” is found below.

Also exempt are those participating in a Cultural Exchange Program through the American Federation of Musicians (A F of M). A F of M members who are U.S. citizens and possess proof that they are part of the program will not need a work permit to play shows in Canada, regardless of venue.

Performances in Bars, Restaurants or Similar Establishments

Pursuant to Canada’s immigration legislation, a work permit is required where an artist is entering Canada to perform at a “bar, restaurant or similar establishment”. Of course, there are many establishments in Canada that both showcase music and also operate as a bar, nightclub, restaurant or café. In these instances, is the venue considered a “bar, restaurant, or similar establishment” for immigration purposes? This is where much of the confusion lies.

To take advantage of the work permit exemption and avoid the new fees, an establishment that falls in this grey area must convince Citizenship and Immigration Canada that its primary purpose is to showcase music rather than to sell food and beverages. The government’s rationale for this distinction is that “bars, restaurants and similar establishments” bring in musicians mainly to entice their patrons to stay and purchase food and alcohol. From this light the government reasons that Canadian musicians should be available to fill this role, and that a venue should not need to hire talent from abroad in most cases.

Where there is confusion as to whether a venue qualifies, immigration officers are directed to look to the liquor license. If the venue is identified as a “concert venue” on the liquor license, the fact that it also operates as a bar or pub should not affect its exempt status.

It is also possible for a bar to act as a “concert venue” for a limited period. For instance, if a cultural association were to rent out a restaurant for a night to bring in a foreign musical act, the work permit exemption may apply. The cultural association would need to present evidence that a ticket to the concert was required for entry, and that the bar was otherwise closed to the general public on that particular night.

However, venues in the grey area still need to be cautious. Recently published guidelines for officers indicate that the government may apply stricter standards going forward when evaluating whether an establishment is primarily a music venue.  Officers are directed to treat venues whose names include words such as “bar”, “cafe” or “tavern” as non-exempt unless additional evidence indicates otherwise. Therefore, any music venue with one of these words in its name will need to carefully make its case for an exemption.

The case for an exemption is made at the time a performing artist seeks to cross the border into Canada without a work permit. The artist should come equipped with a package of information and evidence that makes the case for the exemption. Artists and venues are well-advised to seek the assistance of experienced immigration counsel in preparing such submissions.

Where a Work Permit is Required

In cases where the exemption does not apply, foreign musicians need a work permit to perform in Canada. The fee to obtain a work permit has not changed: it is $150 per person, to a maximum of $450 if a group of performers and crew all apply at the same time.

However, before a musician or group of musicians can apply for a work permit, a non-exempt venue must be approved for a Labour Market Opinion (LMO). An LMO is required for most work permits in Canada to establish that there is no Canadian available to fill a particular position. Obtaining an LMO was already an onerous process, and the new regulations introduced a fee of $275 per applicant. There is no special fee for groups: in the case of a band, the venue would need to pay $275 per person for each individual member of the band and their crew. If the application is refused, the venue will not have the fee reimbursed.

Clearly, the new fee requirement can be prohibitive, and it may well prevent smaller establishments from bringing in talent from abroad. However, many venues will continue to be eligible for the exemption. So long as they can prove that eligibility, they can continue to book foreign talent without paying the government to do so.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both venues and foreign artists with assessing work permit requirements, preparing comprehensive application packages, and addressing any potential complications.

– Warren L. Creates and Jacqueline J. Bonisteel

With special thanks to Rovshan Hajiyev and James Nicol

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Canada Steps Up Monitoring for Temporary Foreign Workers Program

Last Updated: 9 April 2020.

Access the PDF version of this article here.

Over the past several years, Canada’s Temporary Foreign Worker Program has been a hot topic across the major news outlets in the country. Reactions to the controversy surrounding the program have ranged from virulent criticism to impassioned defense.

The debate has previously been about the economic necessity of outsourcing, the obligations of Canadian companies, and national identity in a globalized world. These are all fundamental issues reaching far beyond discussion of the merits of Canada’s Temporary Foreign Worker Program. Even a major overhaul of the program would be only the tip of a very large iceberg. Nonetheless, such an overhaul is the simplest way for the federal government to address the criticism, so is likely to be the immediate result.

Since December 2015, changes to the Immigration and Refugee Protection Regulations have allowed Employment and Social Development Canada to impose administrative monetary penalties on employers found non-compliant with the program. In addition, employers now can also be banned from using the foreign worker programs for anywhere from one to ten years per violation, with permanent exclusion for the most serious offenders.

The Temporary Foreign Worker Program is continuously evolving to ensure it works for everyone – workers, employers and the Canadian economy. More recently, following recommendations from both the Office of the Auditor General and Parliament, and as part of continued efforts to strengthen the compliance regime, the Government has stepped up monitoring of the program. Particularly, random compliance audits and unannounced on-site employer inspections have been introduced. These types of inspections are undertaken in situations where there is a high-risk of non-compliance and where the safety of temporary foreign workers may be at risk. As of 2018, Employment and Social Development Canada conducted 2,800 inspections per year. Results from current inspections are that over half of employers are initially found non-compliant, but the vast majority take corrective action to address any identified issues. Details about non-compliance are now also easily accessible on the Government of Canada’s website.

The easiest way to prevent unintentional non-compliance by employers is to provide clear communications. It is the responsibility of the employer and the worker to ensure that all steps are followed correctly. Preparing thorough applications and paying close attention to compliance conditions will now be more important than ever.

The ability to bring in temporary foreign workers to fill labour needs is vital to the success of many Canadian businesses. The government has acknowledged and encouraged this in the past, and will certainly continue to do so going forward. However, employers must be prepared for stricter monitoring and enforcement of the program.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both employers and potential employees with evaluating eligibility, preparing comprehensive application packages, addressing any potential complications, and advising on ongoing compliance requirements.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Canada’s Start-Up Visa Program

Last Updated: 9 April 2020.

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While it is an uphill battle to lure Silicon Valley entrepreneurs away from California’s vibrant community of tech start-ups, Canada has been taking on the challenge. The Start-Up Visa program, launched in 2013 as a five-year pilot project, was made permanent in March 2018. The Start-Up Visa Program is seeking to bring to Canadian soil the minds that may dream up the next Google or Facebook. A strategically placed billboard en route to San Francisco’s technology hub calls for those in the industry struggling to land a U.S. H-1B visa to consider the Canadian alternative.

The Start-Up Visa Program facilitates entry to Canada for entrepreneurs who want to establish a start-up business in Canada that is innovative, creates jobs for Canadians and can compete on a global scale. To be eligible for admissibility into Canada you must (1) have a qualifying business; (2) have a letter of support from a designated list of organizations; (3) be able to work and communicate in either English or French; and (4) have enough money to settle and live in Canada before you make money from your business.

The designated organizations are business groups that are approved by the Government of Canada to invest in or support possible start-ups through the Start-up Visa Program. The three designated business groups are found on IRCC’s website. The Business Incubator group is the only business group that does not require a substantial investment. Instead, you need to be accepted into this group and they must provide you with a letter of support. The other two business groups require investments in the form of a minimum $75,000 CAD from an approved Canadian angel investor, or minimum $200,000 CAD from an approved Canadian venture capitalist.

The program is not limited to any specific industry, but it is expected that the majority of beneficiaries will work in technology. Similar programs introduced in the UK, Australia and Chile have also focused on tech start-ups.

Canada is hoping that entrepreneurs will be enticed by the World Bank’s recent finding that Canada is the best place in the G7 to start a business due to a strong banking system, growing job market, low taxes, and high standard of living. Also, a key selling point of the Canadian program is the fact that those accepted will be granted permanent residence in Canada—regardless of whether the business succeeds. This sets it apart from the programs of other countries.

Canada’s program contrasts with the U.S. H1-B visa, which has been criticized for its slow processing times and extremely limited quotas. The Canadian program was ambitious at its inception, allowing up to 2,750 applications per year through its expedited process.  Unfortunately, Canada has only admitted approximately 200 immigrant entrepreneurs through the Start-Up Visa Program since 2013, including dependents.

Critics of Canada’s Start-Up Visa state that it is too limited and too risky. Venture capitalists in Canada are reputed to be risk-averse, so potential applicants may struggle to secure the requisite funding. Also, given the difficulty of predicting which start-up idea will thrive, Canada is taking a gamble in offering permanent status to those with an idea and Canadian funding.

The Start-Up Visa program is just one of numerous options available to entrepreneurs looking to establish themselves in Canada. Many Canadian provinces and territories also have entrepreneur-focused immigration streams that are part of Canada’s Provincial Nominee Program (PNP).

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist potential Start-Up Visa applicants with assessing their eligibility, preparing comprehensive application packages, and addressing any potential complications.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

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