Canada: New Policy on Medical Inadmissibility

Posted by Immigration Law Team|Canada Immigration
Apr 18
16


In Brief:

On April 16, 2018, the Honourable Ahmed Hussen, Minister of Immigration, Refugees and Citizenship Canada (“IRCC”), announced changes to the medical inadmissibility provisions in the Immigration and Refugee Protection Act (“IRPA”) and the Immigration and Refugee Protection Regulations (“IRPR”), to ensure Canada’s immigration policies better reflect the importance of inclusion of persons with disabilities.

Discussion:

Since 2016, the Government of Canada had been reviewing all elements of its medical inadmissibility provisions, engaging in discussions with provincial and territorial governments along with other relevant stakeholders. Additionally, the Standing Committee on Citizenship and Immigration had examined the issues surrounding Canada’s medical inadmissibility policy, recommending eliminating it in its entirety. In response, today’s changes, which are proposed to take effect immediately, include the following:

1. Increase the cost threshold for medical inadmissibility

Currently, if a foreign national has a medical condition for which certain aspects of their treatment exceed the annual cost threshold, they may be found to be medically inadmissible to Canada. The 2017 threshold to determine whether a condition represents an excessive demand on health or social services is $6,655 annually, or $33,275 over five years. The cost threshold will be increased to three times this level.

By tripling the cost threshold, many applicants, particularly those with conditions treated primarily with publicly funded health services, will no longer be inadmissible to Canada. This change is especially notable for those applicants who rely on prescription medication which is eligible to be funded by a provincial program, as the total publicly-borne cost of these medications may now fall within the revised cost threshold.

2. Amending the definition of ‘social services’

Currently, when determining whether an applicant is medically inadmissible to Canada, Immigration Officers assess whether an individual’s circumstances is likely to place an excessive demand on social services, which is broadly defined to include services such as special education, social and vocational rehabilitation services, and personal support services. The new policy seeks to amend the definition of social services to remove reference to special education, social and vocational rehabilitation services, and personal support services. The result is that the publicly funded cost of these services will no longer count toward the amount used to determine excessive demand.

Amending the definition of social services will support societal inclusion of persons with disabilities, while continuing to protect publicly funded social services, in addition to benefiting those applicants with intellectual disabilities or hearing or visual impairments.

3. Client service Improvements

In order to improve client service, enhance transparency in decision making, and enable these changes, the following measures will be implemented:

–  Centralizing applications containing a potential medical inadmissibility to one office in Canada, for greater consistency and efficiency in decision-making;
–  Conducting a plain-language review, and revamping departmental procedures and products to facilitate the application process and to ensure clear communication with applicants; and
–  Providing ongoing training to decision makers and medical officers to support these changes.

Impact

Every year, approximately 1,000 applicants for permanent and temporary residence in Canada are found medically inadmissible to Canada. Approximately twenty to thirty percent of these cases relate to excessive demand caused by special education services required for children. IRCC’s new policy is expected to dispense with a majority of medical inadmissibility cases, as the increased cost threshold will facilitate immigration for applicants with conditions that typically require a limited range of health and social services, and whom have a relativelylow financial impact on health and social service costs.

The new policy seeks to address the issue of inclusion, as some current and soon-to-be applicants may be found medically inadmissible to Canada based on a set of criteria established approximately forty years ago. The implementation of this new policy means that most people with disabilities that would previously have been deemed inadmissible to Canada may no longer face this barrier.

For more information on medical inadmissibility, or any other immigration related matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team » No Comments »

Canada: Invitation to Land in Person at an IRCC office

Posted by Immigration Law Team|Canada Immigration
Mar 18
20


In Brief:

Immigration, Refugees and Citizenship Canada (“IRCC”) will be testing a pilot project that will provide a select group of Permanent Resident (“PR”) applicants the opportunity to complete the landing process in person at a local IRCC office in Canada.

Discussion:

Between March 19 and April 20, 2018, IRCC will be contacting a select group of PR applicants via email, from an address ending in “@cic.gc.ca”. The pilot project will extend to certain PR applicants residing in the Montreal, Fredericton and Halifax areas, who have recently received their Confirmation of PR documentation. However, only PR applicants who are contacted by IRCC via email will be able to use this landing process and participation in this pilot project cannot be requested. This landing alternative is also not available for applicants who reside outside Canada. The email received from IRCC will list the dates and times the applicant may visit their local IRCC office to complete the PR landing process.

The current process requires PR applicants to either contact IRCC to schedule an appointment to visit their local IRCC office, or to leave Canada and return to the country through an international airport or Canadian land border, often referred to as “flag poling”. The current process can pose difficulties for those who do not live close to a land border or who are not able to make immediate international travel plans. Although PR applicants may contact IRCC to schedule an appointment and visit a local office, getting through to an IRCC agent over the phone can also be difficult.

Upon completion, and based on the results of the pilot project, IRCC will determine whether this landing process should be expanded to include other areas in Canada and form part of the normal landing process.

Similar to previous initiatives, such as the pilot project to land via telephone interview, IRCC continues to develop ways to provide more flexibility and convenience in an effort to improve client service.

Impact:

This initiative may offer an efficient alternative to flag-poling at a Canada-U.S. land border, scheduling international travel or scheduling an in-person landing interview with IRCC.

For more information on Canadian permanent residency and/or the PR landing process, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team » No Comments »

Canada: Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”)

Posted by Immigration Law Team|Canada Immigration
Mar 18
12


In Brief:

On March 8, 2018, the Honourable François-Philippe Champagne, Canada’s Minister of International Trade, joined representatives from ten other member countries to sign the historic Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”). The CPTPP will be comprised of 11 member countries including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, to form one of the largest free-trade agreements in the world.

Discussion:

Upon entry into force, the CPTPP should provide employers with less restrictive immigration options, and enable faster and more predictable movement of skilled labour. We anticipate that following the coming into force of the CPTPP, Immigration, Refugees and Citizenship Canada will publish program delivery guidelines to clarify the practical application of the CPTPP’s immigration provisions.

The CPTPP sets out Canada’s commitments in Article 12.4 (Grant of Temporary Entry) pertaining to the temporary entry of business persons, as follows:

1. Business Visitors

Similar to existing Free Trade Agreements (“FTAs”), the business visitor category will permit the temporary entry of business visitors for up to six months provided their primary source of remuneration for the proposed business activity, as well as the place of business and accrual of profits, is outside Canada. This category includes business visitors seeking to engage in one of the following business activities:

 –  Meetings and Consultations
 –  Research and Design
 –  Manufacture and Production
 –  Marketing
 –  Sales
 –  Distribution
 –  After-Sales or After-Lease Service
 –  General Service including managerial/supervisory and financial services personnel engaging in commercial transactions, tourism, personnel attending conventions/conducting tours, and translation services.

2. Intra-corporate Transferees

Similar to existing FTAs, the intra-corporate transferee category will permit the temporary entry of business persons currently employed by an enterprise and with one year of experience with that company within the three-year period immediately preceding the date of application for admission to Canada. This category includes business persons, in specific countries, employed in the capacity of:

 –  Executive – business person who directs the management, establishes goals and policies, exercises decision-making authority of the organisation or a major component or function of the organisation.
 –  Manager – business person who directs the organisation or a department or subdivision of the organisation, supervises and controls the work of others, has authority to hire and fire personnel, and exercises discretionary authority over the day-to-day operations.
 –  Specialist – employee possessing specialised knowledge of the company’s products or services and their application in international markets, or an advanced level of expertise or knowledge of the company’s processes and procedures.
 –  Management Trainee on Professional Development – employee with a post-secondary degree who is on a temporary work assignment intended to broaden the employee’s knowledge of and experience in a company in preparation for a senior leadership position within the company.

As this provision does not require that intra-corporate transferee specialists meet a prevailing wage requirement, employers may wish to rely on the CPTPP provisions rather than the general provisions if applicable to the foreign worker.

3. Investors

Similar to existing FTAs, the investor category will permit the temporary entry of business persons seeking to establish, develop or administer an investment to which the business person or business person’s enterprise has committed, or is in the process of committing, a substantial amount of capital, in a capacity that is supervisory, executive or involves essential skills.

4. Professionals/Technicians

This category will permit the temporary entry of business persons engaged in a country-specific specialty occupation (NOC levels O, A and B) as a Professional or Technician.

The CPTPP defines Professionals as persons who possess the following:

(a) theoretical and practical application of a body of specialised knowledge; and
(b) a post-secondary degree of four or more years of study, unless otherwise provided in this schedule, as well as any other minimum requirements for entry defined in the NOC, and
(c) two years of paid work experience in the sector of activity of the contract, and
(d) remuneration at a level commensurate with other similarly-qualified professionals within the industry in the region where the work is performed (excluding non-monetary elements such as, but not limited to, housing costs and travel expenses).

Technicians are defined as persons who possess these attributes:

(a) theoretical and practical application of a body of specialised knowledge, and
(b) a post-secondary or technical degree requiring two or more years of study as a minimum for entry into the occupation, unless otherwise provided in this Schedule, as well as any other minimum requirements for entry defined in the NOC, and
(c) four years of paid work experience in the sector of activity of the contract, and
(d) remuneration at a level commensurate with other similarly-qualified technicians within the industry in the region where the work is performed (excluding non-monetary elements such as, but not limited to, housing costs and travel expenses).

Employers may note that, unlike other work permit categories under FTAs such as the NAFTA, Professionals/Technicians under the CPTPP must meet a wage requirement, which is yet to be defined. The category also specifies that previous work experience must be paid, which precludes the possibility of including work experience gained on certain unpaid internships or on the job training.

Impact:

Upon entering into force, the CPTPP will provide Canadian employers with new options for foreign nationals from CPTPP member countries in certain professions, in addition to highly skilled technicians, intra-corporate transferees, investors, and business visitors. This will improve the predictability of the import of skilled labour, and facilitate workforce planning for employers with foreign or mobile workforces.

For more information on the CPTPP or any other immigration matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team » No Comments »

Canada: Federal Budget 2018 commits to growth, and protection of foreign workers

Posted by Immigration Law Team|Canada Immigration
Feb 18
27


In Brief

On February 27, 2018, the Canadian government released Budget 2018, entitled ‘Equality + Growth – A Strong Middle Class.’

Discussion

Budget 2018 commits to increasing the budget allocated to Canada’s Start-up Visa Program in order to match demand from global entrepreneurs wishing to start up a business via the Start-up Visa Program, and spur job creation in Canada. In July 2017, the Canadian Government announced that the Start-up Visa Program, previously launched as a five year pilot program, would become a permanent immigration stream effective March 31, 2018. Following from this, Budget 2018 allocates CAD $4.6 million over five years to enhance client service within the program by enabling online applications, and facilitating the processing requirements for program applicants, private sector partners, and immigration personnel.

Budget 2018 also commits CAD $194.1 million over five years to better ensure employers’ compliance with various aspects of the Temporary Foreign Worker Program (“TFWP”) and International Mobility Program (“IMP”). The funding will target unannounced inspections under the TFWP, the continued operation of the compliance regime under the IMP, and the ongoing collection of labour market data related to open work permits.

Impact

Although not yet available online, moving to an electronic application system removes significant administrative burdens previously faced by Start-up Visa applicants, and will very likely reduce the current and lengthy processing times, thereby sparking growth in Canada.

Currently, the Government has committed to inspecting 1 in 4 employers under the IMP. Budget 2018’s funding to this regime will likely result in employers being subject to more inspections than before. Finally, previously identified as by stakeholders an under-used inspection power, the specific budgetary commitment to unannounced site visits may increase the frequency with which this power is employed by inspectors.

For more information on the Start-up Visa Program, employers’ obligations under the TFWP and IMP, or any other immigration matter, please contact a member of our team at PwC Law LLP.

 


Posted by Immigration Law Team » No Comments »

Life after NAFTA – US & Canada Perspectives

Feb 18
21


Introduction

Round 6 of the renegotiation of the North American Free Trade Agreement (NAFTA), the pact between Mexico, Canada and the US took place in Montreal, Canada from January 21st to the 29th.  No progress was made on the key issues through the first five rounds and the Montreal meetings have been billed as the final round of discussions.  It remains to be seen whether the three countries can agree on terms that will update and keep NAFTA in place for future generations.  Complicating the renegotiations are the consistent overtures made by US President Donald Trump that he will withdraw from the NAFTA deal if the other two countries do not concede to some of the United States’ hardline demands.  While a NAFTA withdrawal will unleash many known and unknown economic consequences for the three member countries, there will also be immigration consequences, both known and largely unknown, for individuals who are working in Canada and the US on NAFTA-based work permits.

The purpose of this article is to review the current immigration provisions of NAFTA and to explore whether NAFTA work permit holders will be able to continue to live and work in the US and in Canada if the US withdraws from the agreement.

Background

NAFTA was entered into force on January 1, 1994 and created one of the largest free trade zones in the world between the US, Canada and Mexico.  The treaty covers many industries and sectors and aimed at the following objectives:

1) Eliminating tariffs for certain projects
2) Eliminating certain non-tariff barriers
3) Establishing standards in areas such as health, safety and industry
4) Expanding the telecommunications trade
5) Reducing textile and apparel barriers
6) Expanding free trade in agriculture
7) Expanding trade in financial services
8) Opening insurance markets
9) Increasing investment opportunities
10) Increasing protection of intellectual property rights
11) Expanding the rights of American firms to bid on Mexican and Canadian government procurement contracts.

a) NAFTA Immigration Provisions for the United States

In order to facilitate trade expansions and the free movements of goods, NAFTA also contains immigration provisions that allow for the movement of US, Canadian and Mexican nationals throughout the free trade zone under a more expedited process.  At the outset, while immigration was not a principal concern, the NAFTA drafters realized that the movement of goods and services in international commerce would also involve the moving of people who trade in those goods and services.

For the United States, NAFTA provides the following immigration provisions:

Visitors for Business (B-1)

Canadian and Mexican nationals are allowed to enter the US to engage in B-1 business activities as long as they receive no salary or remunerations from a US source, establish they will engage in business activities, and will not be performing “work” activities that usually require a work permit.  The activities include the following:

– Technical research and Design
– Growth, manufacture, and production
– Market research and analysis
– Negotiating contracts or taking sales orders
– Transportation and distribution activities
– After-sales services

Canadian nationals are able to enter the US as a B-1 business visitor through the US-Canada border or through a preclearance facility in Canada without having to apply for a visa at the US Consulate.

L-1 Intracompany Transferees

The NAFTA provisions permit Canadian nationals to follow a streamlined process for applying for L-1 admission as an intra-company transfer.  Canadian nationals are not required to file their L-1 petition with US Citizenship and Immigration Services (USCIS).  Instead they may submit an L-1 petition and request admission into the United States with US Customs and Border Protection (CBP) at a Class A port of entry along the US/Canada border at a pre-clearances station in Canada.

TN Nonimmigrants (Treaty Nationals)

NAFTA permits Canadian and Mexican nationals to enter the US on TN status to engage in certain professional activities that are designated by the treaty provisions.  The TN professions and the minimum qualifications for each are listed in the NAFTA appendix and include, but are not limited to, the following:

– Accountants
– Computer System Analysts
– Engineers
– Mathematicians
– Economists
– Scientists
– Urban Planners

Canadian nationals may submit a TN application and request admission into the United States with US Customs and Border Protection (CBP) at a Class A port of entry along the US/Canada border at a pre-clearances station in Canada.

E-1/E-2 Treaty Traders and Investors

The NAFTA provisions make Canadian and Mexican nationals eligible for E visas which are designed for treaty traders (E-1) and treaty investors (E-2).

b) NAFTA Immigration Provisions for Canada

Entry provisions for US and Mexican citizens seeking to work in Canada under NAFTA largely mirror those found in the US.

Under Canadian immigration law, NAFTA’s provisions exist alongside of general immigration provisions.  Business visitor eligibility criteria under NAFTA parallels the business visitor requirements set out at section 186(a) of the Immigration and Refugee Protection Regulations (IRPR), with the main difference being that NAFTA has slightly more restrictive after-sales service provisions.

The other three categories of business people — namely professionals, intra-company transferees and traders / investors — are eligible for Canadian work permits under IRPR R. 204(a) on a similar basis to the US.  US and Mexican citizens may apply for NAFTA-based work permits upon arrival in Canada, with no advance government processing or an application through a visa office abroad being required.

US and Mexican citizens who qualify for NAFTA-based work permits are exempt from the onerous Labour Market Impact Assessment process, meaning that NAFTA is an efficient and cost-effective basis for obtaining a work permit.

The Post-NAFTA Landscape

Under Article 2205 of NAFTA, any of the three countries can pull out of the treaty by giving six months notice to the other two countries.  NAFTA has been in place for over 20 years and the implications of a potential US withdrawal are still being ascertained.  In this regard, we have outlined some potential scenarios and outcomes if the US decides to withdraw from NAFTA.

a) Does the President have the authority to pull out of NAFTA?

The NAFTA treaty states that any country may pull out of the agreement by providing six months’ notice.  Based on this provision, the President may pull out of the agreement.  However, the power to negotiate trade deals is shared between the President and the Congress.  Congress usually grants the President the ability to negotiate trade deals, which are ultimately submitted for a congressional vote.

If the President withdraws from NAFTA, some provisions of the deal such as the binational panels that resolve trade disputes, would disappear while other things, such as preferential tariff treatment for Canadian and Mexican goods, would remain until Congress passes legislation to repel them.

Additionally, after the agreement was executed by the three countries, the United States ratified and implemented the agreement through legislation, which governs the way the US trades with Mexico and Canada under NAFTA.  The legislation can only be repealed by congressional vote.  Congress could fight to keep the legislation intact or pass new laws designed to boost its own authority over trade agreements.  Thus, since much of NAFTA is implemented by congressional statute, which cannot be changed without congressional vote, what would remain has been termed a “Zombie” NAFTA—where the US no longer formally participates in the agreement but the domestic laws would treat Canadian and Mexican products as NAFTA-bound.

In any scenario, it is extremely likely that a withdrawal will lead to a legal battle with members of Congress or industry groups challenging the President in court over his power to unilaterally withdraw from the agreement.

b) In the case of a withdrawal, what would happen to the NAFTA agreement between Canada and Mexico?

In the event of a US withdrawal, the NAFTA agreement may remain in effect between Canada and Mexico, but this would likely require positive action from both countries.

It should also be noted that the Trans-Pacific Partnership (TPP) — which could be ratified as early as 2019 — contains mobility provisions that are similar to those in NAFTA.  Canada and Mexico are both parties to the TPP.  With the TPP on the horizon, Canada and Mexico may not have the appetite to revive NAFTA in the event that the US withdraws from this agreement.

c) Could the US and Canada revert back to the Canada-US free-trade agreement (CUSFTA) that came before NAFTA?  

In 1987, Canada and the US signed a free-trade deal known as the Canada-US free-trade agreement (CUSFTA).  This deal superseded NAFTA.  The prevailing view is that if the United States pulls out of NAFTA, then the original CUSFTA provisions might come back into force.  The immigration provisions in CUSFTA are similar to those in NAFTA, with the exception that the professional categories in CUSFTA are not as extensive as those listed in NAFTA.  Certain professional categories in NAFTA, such as Urban Planners, are not available under CUSFTA.  Nevertheless, CUSFTA could serve as a fall back option for individuals in Canada or the US on NAFTA-based work permits.

However, there are issues with this scenario: First, the CUSFTA would not automatically revert become operational. Various decisions and significant “lift” will be required first. Secondly; the withdrawal provisions of CUSFTA are very similar to those in NAFTA; either country can terminate the agreement by providing six months’ notice.  Thus it is possible that the President could provide six months’ notice to simultaneously withdraw from NAFTA and CUSFTA, leaving no fallback provision.

d) If the US pulls out of NAFTA, what will happen to the immigration status of Canadian and Mexican nationals who are in the US and Canada on NAFTA-based work permits?

     i) US

This is a complex question and could involve many likely scenarios.  As mentioned before, the Canada-US trade relationship could revert back to the CUSFTA provisions.  These provisions are similar to NAFTA and include work permits for professionals that are similar, though more limited, to those enumerated in the NAFTA provisions.  However, it is unclear whether NAFTA-based work permit holders in the US could remain in the US based on CUSFTA provisions.  One option is that the US could provide further guidance to state that NAFTA-based work permits would automatically revert to CUSFTA-based work permits and Canadian nationals could remain in the US without disruption to their employment.

Another possible scenario is that NAFTA-based work permit holders will have to take action and apply for a CUSFTA-based work permit.  Within the six month notice period, Canadian nationals, who reside in the US, could file a CUSFTA-based work permit at a service center inside the US.  This process would allow Canadian citizens to continue working while their new CUSFTA application is being adjudicated by the service agencies.  Canadian nationals would also have the opportunity to apply for a CUSFTA work permit at a US-Canada land crossing or at a preclearance facility in Canada.

     ii) Canada

There is a great deal of uncertainty as to how the Canadian government would address the termination of NAFTA and the rights of NAFTA-based work permit holders in Canada.

At present, there are upwards of 40,000 NAFTA work permit holders in Canada, many of whom are working in fields with persistent labour shortages, such as nursing and engineering.  It would be devastating to the Canadian economy if tens of thousands of skilled professionals are required to leave the country, not to mention counterproductive in light of government’s recent efforts to lure foreign talent to Canada.  In the event that NAFTA is terminated, it is expected that existing NAFTA-based work permit holders would be permitted to continue working in Canada until such time as their status documents expire.  This would protect Canadian employers from the sudden and unplanned departure of key US and Mexican talent, as well as ensuring that government does not have to deal with an onslaught of thousands of new work permit and other applications from NAFTA-based work permit holders.

However, if the Canadian government opts to follow the US government’s lead and instead takes the position that all NAFTA-based work permits are void as soon as NAFTA is terminated, US and Mexican citizens should be able to apply for new work permits during the 6 month notice period provided that they qualify under an alternative work permit category (such as the reciprocal employment or significant benefits work permit categories under IRPR’s general immigration provisions).  US citizens holding NAFTA-based work permits may also be able to change the basis for their work authorization from NAFTA to CUSFTA (provided that CUSFTA comes back into effect) or their work permits may be automatically deemed to have become CUSFTA-based work permits.

To the extent that NAFTA-based work permit holders are required to take proactive steps to remain in Canada, they may have to apply for work permit extensions and / or change of conditions through the Case Processing Centre in Vegreville, Alberta or, if applicable, at a Canadian port-of-entry.

If some form of NAFTA remains in effect between Canada and Mexico, Mexican nationals holding NAFTA-based work permits may be unaffected by the termination of this agreement by the US.  Alternatively, depending on the timing of NAFTA’s termination, Mexican citizens may be able to change the basis of their work authorization from NAFTA to the TPP.

At the end of the day, it should be highlighted that the Canadian government has been actively courting foreign skilled workers under the Global Skills Strategy and other related initiatives.  Allowing tens of thousands of highly skilled professionals to leave the country would run completely contrary to these efforts.  Accordingly, if proactive measures are needed to keep NAFTA-based work permit holders in the country, the Canadian government may take such steps.

e) Assuming the US issues a six month notice to withdraw from NAFTA and CUSFTA, what will happen to the NAFTA-based work permits of Canadian and Mexican nationals residing in the US?

Again, there are many possible scenarios.  It is possible the three countries could make separate agreements to let NAFTA-based work permit holders remain in the US and continue to utilize the work permit provisions of NAFTA.

Alternatively, the US may allow NAFTA work permit holders to work until the expiry of their work permits.  They could also decide that all NAFTA work permits will end at the expiry of the six month notice period.  Under this last scenario, Canadian and Mexican nationals would have to leave at the end of the six month notice period or change to another work permit category, if they are eligible.

From an immigration perspective, it is not clear what type of post-NAFTA and post CUSFTA landscape will emerge.  Currently, Canadian nationals, when entering the US as B-1 business visitors, or applying for L-1 or TN work permits, do not have to apply for a visa at a US Consulate.  It is unclear if they will continue to remain “visa-exempt” in the B-1 and L-1 categories or would have to apply for visas at the US Consulates in Canada.   It is also unclear whether the US Congress would be willing to pass law to keep the immigration provisions of NAFTA intact, which would allow NAFTA work permit holders to continue working without disruption in their US status.

Recommendations in the event of a US-led NAFTA withdrawal

Despite the uncertainty associated with a post-NAFTA landscape, there are some concrete steps companies can take in anticipation of a NAFTA and CUSFTA withdrawal that would help protect NAFTA-based employees to remain in the US or Canada.

a) US

For individuals working in the US on L-1 NAFTA-based work permits, companies should consider switching their work permits to the H-1B classification.  Keep in mind that only 85,000 total H-1B visas are given each year; the first day of filing is April 1st and if the application is accepted and approved, the H-1B will become effective on October 1st. Moreover, the H-1B position must require a four-year bachelor degree and the individual applicant must have a four year bachelor degree or its equivalent in education and/or experience related to the position.

It may also be possible to re-file L-1 applications with the service center through USCIS.  An L-1 approval through USCIS would allow the individual to continue to work and reside in the US on the same status.

For individuals in the US on TN work permits, companies should also consider filing H-1B petitions on their behalf.  Alternatively, if employees have worked for a sister, parent, or subsidiary company outside the US for one full continuous year within the last three years prior to their entry into the US, then they may be eligible for an L-1 work permit.  The L-1 work permit would be filed at a USCIS service center.

b) Canada

Canadian employers seeking to retain NAFTA-based work permit holders would be well-advised to transition such individuals to permanent resident status.  Under the federal government’s Express Entry process, foreign nationals can secure permanent resident status through the Canada Experience Class, Federal Skilled Worker Program or Federal Skilled Trades Program within  6 months (and, in some cases, in as little as a few weeks).  A number of provinces also have very fast and effective provincial nomination programs.  Once a NAFTA-based work permit holder has applied for permanent residence through the federal government or secured a nomination for permanent residence from a province or territory, they then become eligible for a bridging work permit, which will allow them to remain in Canada until they have secured permanent resident status.

Alternatively, affected foreign nationals could look at changing the basis for their work authorization from NAFTA to a different work permit category, such as the reciprocal employment or significant benefits category.

Employers could also look at transitioning U.S. and Mexican citizens to intra-company transfer work permits, provided that they have a history of employment with the company abroad.  However, Canadian immigration law requires intra-company transferees to be employed with the foreign employing entity at the time the application is made; accordingly, this strategy would require the Canadian employer to transfer their NAFTA-based work permit holder back to the foreign employing entity for a period of time before that individual could return to Canada and apply for an intra-company transfer work permit.

We recommend that companies review their employee population to identify which individuals are currently on NAFTA-based work permits and then work with their counsel to develop alternative work authorization strategies on their behalf.

Conclusion

The termination of NAFTA would have far-reaching implications for NAFTA-based business visitors and work permit holders in Canada and the US.

As the Canadian government has recently taken active measures to attract skilled workers under the Global Skills Strategy and related initiatives, Canada is expected to take proactive steps to ensure that NAFTA-based work permit holders can remain in the country.  On the other hand, in light of President Trump’s “America First” policies, the US may be less facilitative in terms of ensuring that NAFTA-based work permit holders can continue to live and work in the country.

There are still many unknowns associated with the termination of NAFTA and the impacts to current NAFTA-based work authorization holders.  Please contact PwC Law LLP to discuss your company’s particular situation and to develop a plan for retaining your NAFTA-based work permit holders.

 

The conclusions reached in this document represent and are based upon our best judgment regarding the application of immigration laws arising under the Immigration and Refugee Protection Act and Regulations Customs Act, the US Code of Federal Regulations, the Immigration and Nationality Act (INA),  judicial decisions, administrative regulations, and operational manuals existing as of the date hereof.  This document is not binding upon the Canada Border Services Agency, Customs Border Protection or any other immigration enforcement authority and there is no assurance or guarantee that CBSA, CBP or any other immigration/customs authority will not successfully assert a contrary position.

 


Posted by Immigration Law Team » No Comments »

Canada: Ontario Immigrant Nominee Program Re-Opens

Jan 18
18


In brief:
The Ontario Immigrant Nominee Program (“OINP”) announced today, January 18, 2018, that the federal government has increased Ontario’s 2018 allocation to a total of 6,600 nominations, and is once again accepting applications in most streams.

Discussion:
The increase of 600 nominations for a total of 6,600 nominations for 2018 follows the federal government’s recognition of the OINP’s past success, and its present and future importance to Ontario’s and Canada’s economy.

The OINP is currently accepting applications in the following streams:

  • Employer Job Offer: Foreign Worker Stream, International Student Stream, and In-Demand Skills Stream;
  • Ontario’s Express Entry: Human Capital Priorities Stream, French-Speaking Skilled Worker Stream, and Skilled Trades Stream;
  • Corporate Stream; and
  • Entrepreneur Stream.

The OINP advises all potential applicants to carefully review the recently updated OINP – Application Guides as processes may have changed since the coming into force of the new Ontario Immigration Act, 2015 (Bill 49).

The OINP will be monitoring the intake of applications for 2018, and once the intake limits have been reached, the OINP will provide an update. Programs are expected to pause and reopen until the nomination quota is reached, as was done in 2017. The OINP will also provide an update as soon as it begins accepting applications for the Masters Graduate and PhD Graduate Streams, respectively.

Impact:
The reopening of the online application system, and the allocation increase of 600 nominations for a total of 6,600 for 2018, are both positive developments. This will help individuals and employers alike, as well as Ontario and the country as a whole, to advance our economy forward.

For more information on Immigration to Ontario or any other immigration matter, please contact PwC LLP.


Posted by Immigration Law Team » No Comments »

Canada: Parents and Grandparents Program reopening in 2018

Posted by Immigration Law Team|Canada Immigration
Dec 17
22


In brief:

On December 22, 2017, Immigration, Refugees and Citizenship Canada (IRCC) announced the reopening of the Parents and Grandparents Sponsorship Program in 2018.

Discussion:

In 2017, IRCC introduced updates to the application intake process for the Parents and Grandparents Sponsorship Program. Under this new process, individuals who want to sponsor their parents and grandparents to reside in Canada have to first complete an “Interest to Sponsor” form and join a pool of applicants from which they may be randomly selected.

Today, the Honourable Ahmed Hussen, Minister responsible for IRCC, announced that the “Interest to Sponsor” form will once again be available at noon EST on January 2, 2018, until noon EST on February 1, 2018.

Those who wish to be eligible to apply to sponsor their parents and grandparents in 2018 must complete the online form as a preliminary step in the application process. In an effort to ensure efficiency, additional questions have been added to the 2018 version of the “Interest to Sponsor” form to help potential sponsors more accurately determine whether they are eligible to sponsor.

Impact:

The Parent and Grandparent Sponsorship Program should help keep families together, enable a more successful integration, and to assist in building stronger ties in Canada.

For more information on sponsorship applications under the Parent and Grandparent Program, or any other immigration related matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team » No Comments »

Canada: Work permit pilot extended to 2019 for spouses and common-law partners applying for permanent residence from within Canada

Posted by Immigration Law Team|Canada Immigration
Dec 17
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In brief

Immigration, Refugees and Citizenship Canada (IRCC) announced today, December 15, 2017, that the Government of Canada is extending the open work permit pilot for spouses and common-law partners applying for permanent residence (PR) under the the Spouse or Common-Law Partner in Canada (SCLPC) class, until January 31, 2019.

Discussion

This initiative was initially launched by the Government of Canada on December 22, 2014, as a one-year pilot project with the key objective being to prioritize family reunification while applications under the SCLPC class are being processed. This initiative would allow families to live and work together in Canada, while improving the outcomes of successful integration into Canadian society once they obtain PR.

On December 17, 2015, the pilot project was extended for another year, until December 21, 2016, and on December 7, 2016, the Government of Canada announced that the pilot program would be extended again until December 21, 2017.

Impact

Sponsored spouses and common-law partners, who are inside Canada and living at the same Canadian address as their sponsor, may be able to apply for and obtain an open work permit that will authorize them to work anywhere in Canada while their PR application is being processed.

For more information on obtaining permanent residence or any other immigration matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team » No Comments »