Episode 4: Express Entry – Crucial Facts for Canadian Employers and Prospective Immigrants

CIC’s Express Entry Program coming January 1, 2015
Crucial Facts for Canadian Employers and Prospective Immigrants

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Listen to Mark Holthe’s Answer

Fact Sheet: Produced by the CBA’s National Immigration Section

The Express Entry program is not simply a case management system. It imposes a new layer of requirements before prospective applicants are “invited” to make an economic class application for Permanent Resident (PR) status. These requirements apply to all applicants in the Federal Skill Worker (FSW), Canada Experience Class (CEC) and Federal Skilled Trade (FST) Worker classes.
CIC language leads one to believe that prospective immigrants simply need a job offer to rank highly under the Express Entry program. This means not just any job offer. To rank highest in the pool of potential immigrants and compete for an Invitation to Apply (ITA), an applicant will need a job offer that has been approved by a federal Labour Market Impact Assessment (LMIA) or supported by provincial government nomination.
LMIA applications require employers to undertake extensive recruitment campaigns and prove that no Canadian citizens or permanent residents are available for the position. The exacting compliance regime applicable to the Temporary Foreign Worker Program will therefore also apply to employers seeking to recruit permanently under Express Entry.
If there is no LMIA or the employer does not qualify to participate in their provincial nominee program, the employer must advertise on Canada’s national job bank and pursue recruitment activities designed to attract Canadian citizens or permanent residents to replace the existing employee in order to qualify for an LMIA. Employers will be required to justify why they have not hired Canadians to replace the incumbent. This applies to any foreign worker who wants to apply for permanent residence with the support of a federally approved offer of employment, including senior managers, executives and specialized knowledge workers now employed in Canada through LMIA-exempt programs.
For professionals and intra-company transferees who qualify to work in Canada without a LMIA under international trade agreements (i.e. NAFTA, Canada-Chile FTA), employers will now need to obtain an LMIA or a provincial nomination to attain some measure of certainty about eligibility for permanent residence status.
International students who have come to Canada for international study and offered assurances of an easy pathway to permanent residence will now have to obtain LMIAs or provincial nomination to compete for an ITA. This means that international graduates who are not provincially nominated will need to have their entry-level job offers vetted by ESDC to assess whether they are displacing Canadians. Employers of new graduates will have to demonstrate that they are prepared to pay international graduates above entry-level wages for the occupation and that their newly acquired skills are in demand in the Canadian labour market.
Canadian employers in key tourist destinations like Whistler and Banff will have to seek LMIAs to retain employees who entered Canada under long-standing bilateral youth exchange programs, such as the International Experience Class and Working Holiday Programs. Employers will have the costly administrative burden of seeking LMIAs for employees who have proven themselves integral to the operations of Canada’s thriving tourist and hospitality sectors.
Genuine and well-intentioned employers will be forced to falsely advertise vacancies and clog Canada’s newly improved national job bank with positions that are already filled by highly qualified skilled personnel (such as Canada Research Chairs and CEOs of major Canadian companies) that employers want to retain permanently. By requiring employers to advertise for permanent LMIAs to better position their employees’ chances of success under Express Entry, the government will skew Canadian labour market data and compromise the effectiveness of its employer-employee matching program.
When creating a personal profile in the pre-application phase of Express Entry, applicants must ensure that all information entered into their electronic profile is 100% accurate and reflective of their points or human capital factors. Any data entry error or misunderstanding of the requirements in the pre-application phaseof the process could be construed by CIC as a misrepresentation, which is an immigration offence carrying a five year ban on entry to Canada.
On receipt of an ITA, applicants could have their selection or invitation to apply revoked if they fail to perfectly complete their application through the new online portal being developed by CIC. If the application is deemed incomplete for any reason, applicants must return to the pool and hope they receive a second invitation to apply.
Provincial nominees who would otherwise not have to take a language test or have their foreign education credentials assessed will have to take these steps to qualify for entry into the provincial nomination pool in the Express Entry stream. Similarly, CEC applicants with foreign education, who do not usually need an educational assessment, will need one to rank higher under the Comprehensive Ranking System. Foreign secondary and postsecondary educational credentials each require an Education Credential Assessment for CRS points. Obtaining an Education Credential Assessment from a CIC accredited third party education assessor can be very time consuming, especially for those whose education was completed before digitization of records.
The government’s electronic system for selecting immigrants for Express Entry and matching employers with suitable applicants lacks transparency and certainty. Uncertainty will lead to the perception that Canada is not open for business, as companies cannot ascertain in advance whether they can retain key personnel in Canada. Similarly, the world’s best and the brightest candidates will seek out immigration programs that offer concrete criteria for selection.
Under Express Entry, the government has promised to process applications in six months or less. Timely processing of immigration applications is key to Canada’s ability to compete for global talent. CIC needs an ascertainable bridging mechanism in place to allow those working in Canada to continue to do so until their permanent status is granted. CIC has stated that bridge work permits under Express Entry will be available only after approval in principle of an application. This requires an assessment of the application on its merits. By delaying eligibility for a bridge work permit, applicants and Canadian employers cannot rely on a seamless transition from temporary to permanent residence. CIC is taking away the existing benefit of allowing a bridge work permit once an acknowledgment of receipt of the PR application has been issued.

Read the Transcript

You can download a complete, word-for-word transcript of this episode [spoiler]Welcome to the Canadian Immigration podcast. My name is Mark Holthe, I’m an immigration lawyer practicing in the beautiful province in Alberta, Canada. This is our 4th episode and today we will be discussing some crucial facts that Canadian employers and prospective immigrants need to know about the express entry program. Now in the past I’ve always taken a very practical approach, this is what you do, this is how it impacts you directly. Today we are going to talk at a little bit higher level, and in fact we are going to dissect what the express entry program is really doing, and how it will impact on people that seek to use it either to become a permanent resident, or as an employer to retain key staff.

Now the substance of my discussion actually comes from a great fact sheet that was recently produced by the Canadian Bar Association’s National Immigration section in response to the government’s– well I don’t want to call it propaganda, but they’ve really hyped the program. And so the purpose of this fact sheet is just to bring to the attention of everyone that all things are not always as positive as the government spins them. And so we are going to be discussing 13 separate facts if you will that we feel are really impact on how people access the program, and that are important for them to know as they go into the process of submitting a profile, if they are an applicant or a candidate or supporting the express entry process as an employer through a job offer.

Now within my show notes I’ll make sure that I leave a copy of at least the text of this fact sheet, and I’ll also try to provide links once they are made available through the Canadian Bar Association’s website. However, before I do that I do want to give credit to two lawyers in particular that were instrumental in the creation of this document. First being Betsy Kane a good friend that practices with the office of Capelle Kane in Ottawa who originated the first draft of this– what were 14 points, now they are 13. And in addition to Betsy who did just some phenomenal work on this Gordon Maynard who practices with the firm of Maynard Kischer Stojicevic in Vancouver, British Columbia, who was also very instrumental in helping to create the initial drafts of this document.

Now just to give you a little bit of information whenever anything goes out through the CBA, it has to be vetted by a number of different levels, and so I was a member of the working group, the express entry working group amongst other just excellent lawyers across the country who assisted and vetted and edited the document before it was created and released just last Friday in its final form. And so just going forward I wanted to just identify specifically Betsy and Gordon for the great work that they did, it’s been a pleasure for me to work with them. And if you are ever in those areas seeking immigration cancel, without any doubt I would not hesitate to recommend them, they are really-really experienced, well respected members of the bar, both within the Canadian Bar Association, and across the country within our immigration bar.

So moving on, what I intend to do is go through each of these points, and then I’ll elaborate a little bit more and give you some context as to why we’ve included them. So the first point to understand is that express entry, the program itself is not simply a case management system. It actually imposes a new layer of requirements before perspective applicant is even invited to apply for permanent residence through one of the three affected economic classes. And we know that those three programs are the Federal Skilled Workers, the Federal Skilled Trade, and the Canada Experienced Class.

Now CIC has really-really been proud of this program, and even before it’s even started and it has been the subject of much funfair. Obviously it’s not like I said just a case management system, but it creates some fundamental changes to help people access these programs. So it’s not just a way in which they can select the candidates that they like, the reality is in some cases how you qualify for programs is significantly affected. And as I’ve discussed in some of my other blogs and podcasts, individuals who want to be selected and given an invitation to apply, really need to have a Labor Market Impact Assessment now, and as I get into some of these other points, you’ll see why that’s significant, but understand that this is not just a case management system.

The second point is that the language CIC uses leads one to believe that prospective immigrant applicants simply needed a job offer to rank highly under the express entry program. Well the reality is that this is not just any job offer, in fact in order to rank the highest in the pool you have to have a job offer that has been approved by a Federal Labor Market Impact assessment. So it can also be supported by provincial government nominations through one of the PNP programs, but the reality is if you want to get selected under express entry, you are going to have one of these two things. Now the government has also indicated initially like I said that they don’t anticipate that the first draw within the express entry will be filled completely by LMIA or provincial nomination candidates, but the people may be able to qualify with human capital alone.

However it is the government’s intention that going forward only those applicants that have LMIA supported profiles will really be drawn. Okay, so a couple of other items. Number three LMIA applications actually require employers to undertake extensive recruitment campaigns, something that we know exists. They have to prove there is no Canadian citizen, or permanent residence available for the position, which is typically what happens when you are applying for a work permit that is supported by an LMIA. The exacting compliance regime applicable to the temporary foreign worker program will therefore also apply to employers seeking to recruit permanently under express entry.

So effectively what they’ve done is they’ve taken the foreign worker program, and as we are aware and some of you may be aware this past summer they overhauled the foreign worker program and made it much-much more difficult to secure an LMIA. Now they’ve taken those same standards and same principles and basically imposed those over the permanent residence program. So only where companies can truly prove and show that there is no Canadian or permanent resident that can fill the position will those positions then be targeted for candidates within the express entry program. So that’s something to really pay attention to.

Number four, if there is no LMIA or the employer does not qualify to participate in one of the PNP programs, the employer has to advertise on the national job bank, and they have to pursue all recruitment activities designed to attract Canadian citizens or permanent residents to replace even the existing employee in order to qualify for an LMIA. So employers will be required to justify why they have not hired Canadians to replace the incumbent worker that’s with them right now. And this applies to any foreign worker who wants to apply for permanent residence, as long as they want the federally approved job offer, and this includes your senior managers, your executives, and your specialized knowledge workers now employed in Canada through LMIA exempt programs.

So individuals even at very high levels who’ve been brought through inter-company transfers or otherwise, and understand Canada has many reciprocal agreements with other countries including the United States, where our Canadians can be transferred equally into those different countries, and in many cases pursue permanent residence in like manner, but now our government is imposing an added requirement of obtaining an LMIA before they are actually able to be drawn through the express entry process. And now I’ll qualify once again, initially they say that candidates may be able to qualify with their human capital alone, in other words their language ability, their work history, their education, those unique personal identifiers. And so even those who come in under inter-company transfer, or otherwise pretty much have to get an LMIA. So the company has to advertise the position for that incumbent employee.

Number five, for professionals, an intra-company transfer isn’t qualified to work in Canada without an LMIA under one of the international agreements. As I indicated, employers will now need to obtain an LMIA or provincial nomination to attain some measure of certainty about that person’s eligibility for permanent residence status. So this is a little bit of an extension of point number four, but even those who come in under treaty agreements, international trade agreements such as the North American Free Trade agreement, the Canada Chile Free Trade Agreement, and others, even though they have come in under these perfectly acceptable reciprocal arrangements, those candidates would need to obtain an LMIA often in order to be able to rank the highest and qualify.

Now the sixth point. This is something that all international students need to understand. Pretty much every student that is on a post grad work permit now believed when they applied to come to Canada to study that there would be a very facilitative pathway to permanent residence, and that’s how it was offered, and I’ll bet any money that the international students when they were exploring which countries to go to took that into consideration. And in fact many of the education agents out there and local Canadian post-secondary institutions probably use that as one of their marketing campaigns to draw students to Canada, that there will be a pathway to permanent residence. Well, for international students who have completed their studies, that’s not the case anymore, in other words they too have to attain an LMIA or provincial nomination to compete for that elusive ITA, that invitation to apply.

So this means that international graduates who are not provincially nominated will actually have to have their entry level job offers vetted by ESTC to assess whether they are taking the job of the Canadian citizen. Employers of new graduates will have to demonstrate that they are prepared to pay international graduates above entry level wages, and when we say above this is in some cases even above the average wage for your occupation, and they have to show that their newly acquired skills are in demand in the Canadian labor market. So this drastically changes the pathway to permanent residence for international students, and this is something that we have addressed specifically within our most recent submission to the Citizenship and Immigration Canada on behalf of the Canadian Bar Association.

For years and years they advertised and really let the world know that Canada was open to international students, and that one of the drawing features was the possibility of permanent residence. And so now that has considerably changed, and only those candidates that are able to show that they are in a position that is in such demand that there is no Canadian that could fill it, only those individuals that can secure, at least the companies can secure LMIAs will really be able to qualify.

Number seven, any Canadian employer within the key tourist destinations, like Whistler and Buff [ph] here in my home province, have traditionally relied on long standing bilateral youth exchange programs such as the international experience class, and the working holiday programs et cetera to bring in foreign students to meet the demand within these high tourist destinations, whether they were ski lift operators in the winter, or individuals who worked at these resorts in the summer in a variety of capacities. They now too have to go through the same regime as anyone else if the company wants to keep them.

Now don’t get me wrong, I have no issues whatsoever with Canadians being given the first opportunity in these positions. However in these cases and in many circumstances there are simply no Canadians to perform those jobs, none that are able to especially in the winters work the ski lifts full time, students and youth are often in school during those times of the year. And so these resorts rely heavily on these international youth through the– like I said the working holiday program, and another international experience class programs.

But now if an employer wants to keep these individuals for any length of time, they are going to have to go through the LMIA process, and even when these people have proven themselves integral to the operations, it’s going to be very interesting to see what’s happens within the tourist industry and the hospitality sectors, because of these rule changes and only time will tell.

Point number eight, so genuine and well intentioned employers will be forced to falsely advertise vacancies and clog Canada’s newly improved job bank with positions that are already filled by highly qualified skilled personnel. Some examples are Canadian research chairs and CEOs of major companies. So just to clarify, even if you were currently employing a CEO in your company, and you want to keep that CEO permanently, unless there is an option through one of the PNP programs to retain them on a permanent basis through one of the existing streams that work outside of the express entry category, you are pretty much going to need to re-advertise the CEO’s position and meet the minimum advertising requirements of service Canada in order to submit an application for a Labor Market Impact assessment to support the express entry application of the CEO.

And it seems quite absurd, obviously once again it’s important to protect the Canadian work force, however in some positions where clearly the individual was selected because of the way in which they are going to help that particular company grow economically including protecting the jobs of Canadians, these CEOs and these C sweet level positions, the company is going to have to go through and falsely advertise the vacancies. And we are not even talking about the employment ramifications from a legal stamp point of advertising for a position of a CEO, and in many cases these companies are publically traded. So you can imagine what it’s like when you’ve got your CEO and someone sees an advertisement to replace them, what that effect that’s going have within the stock markets.

So it will be curious to see what exemptions they create or whether they are going to soften some of these very-very harsh requirements, because right now the regulatory regime that they have released back on December the 1st clearly sets out that in order to qualify, you need to have a Labor Market Impact assessment in the vast majority of cases. And I’m not going to waste a lot of time getting into the new ones of those that could possibly qualify with human capital loan, but in the end it’s the quarter fills up and people start to realize that LMIAs are necessary, it really will be the only option for obtaining an invitation to apply from the government.

The ninth point relates to individuals when they are creating their personal profile, and this is in the context of the pre-application phase. The government has recently introduced some pretty harsh bans for individuals who have been found to have misrepresented anything within their applications. And so what this means for people when they are completing the information sections within their electronic profile, they must ensure 100% accuracy, because if they allege that they have a degree, but maybe they haven’t quite yet completed it, or that they have a certain level of language– Canadian language benchmark points, or have scored a certain level, but yet they haven’t yet written the exam, it is possible that individuals could be found to have misrepresented on their applications and the immigration offence for misinterpretation carries a ban of five years on entry to Canada.

And so even data entry errors, clerical errors or a candidate misunderstanding possibly the requirements within the pre-application phase; this could all be construed by CIC as misrepresentation. So it’s critical, absolutely critical that candidates review the instructions very carefully and in all honesty, at this stage when so much writing on this express entry, it’s highly advisable that they get a second opinion, someone to look at it, assess it, retain an immigration lawyer to provide advice on this submission of the profile. But that’s a separate discussion.

Point number ten on receipt of an ITA, applicants could have their selection or invitation to apply revoked if they fail to perfectly complete their application and this is the permanent residence application portion, after the invitation to apply is granted. So as you are completing it through the new online portal, which CIC will release on January the 1st of 2015, if they do not get everything perfectly completed, it’s possible that the application will just be returned by CIC, and they’d have to resubmit a new profile into the pool, and hope that they receive a second invitation to apply.

And understand that LMIAs if they are permanent LMIAs, probably have a certain shelf-life and we are hopping that’s going to be longer than the six months that a regular Labor Market Impact Assessment has in terms of validity, we suspect that probably will. But who wants to have to go back and resubmit everything right from the get go and wait for a new invitation to draw, or invitation to apply through the draw system all because they forgot to include a birth certificate or something very innocuous as that. And the reality is the government as I have indicated has repeatedly said that they do not pay or do not intend to pay their CIC employees to think, everything is going to be automated. So if they have a list of checkboxes they are trying to check off, if you do not complete your application perfectly, it’s just going to get returned.

Okay, point 11, provincial nominees. Right now they cannot apply for permanent residence without necessarily taking language test through some of the categories. Alberta has it and British Colombia as well I believe, and so you can go through as a skilled worker without having to write a language test to be nominated for permanent residence. So in this case with express entry, individuals who would not otherwise have to take the language test, or in some cases have their foreign educational credentials assessed will have to do so now if they want to go through the provincial nomination pool within the express entry stream.

And also it’s worth pointing out that C applicants with foreign education who do not usually need an educational assessment will need one to rank higher under the comprehensive ranking system, so foreign secondary and post-secondary educational credentials each require the ECA in order to get CRS points. So obtaining an educational credential assessment from a CIC accredited third party can be super time consuming, and right now with the limited number of third party assessors, processing times are climbing to two or three or longer months. And if you are raising to get an application in through express entries so that you can remain in Canada because your work permit is expiring, oh Boy good luck trying to get an ECA quickly these days unless something changes.

And it’s interesting how the government has really imposed these additional requirements on people who otherwise wouldn’t have to do so through the traditional provincial nomination stream. Now what we know from PNP to this stage is that probably those programs are going to modify the requirements, so that if you want to receive a PNP sponsored entry into the express entry stream, they are probably going to make changes within their own programs to bring them in line with CIC, so that if you do qualify into the PNP you will also qualify under the Federal streams, whether it’s the Federal Skilled trades, the federal skilled worker or CEC.

The twelfth point relates to the government’s electronic system for matching employers with suitable applicants. Well at this stage there is a complete lack of transparency and certainty, we really don’t have any clue what this is going to look like. They’ve tried to explain a little bit in some of the outreach programs to the employers and to their recent authorized representative webinar that they provided. However there is a lot of uncertainty and the reality is it gives the perception that Canada is really not open for business. If companies can’t ascertain in advance whether they are able to retain key personnel in Canada for longer durations, they are going to question whether to transfer the world’s best and brightest to a country where the immigration programs are, they don’t offer concrete criteria for selection.

So there is still quite a bit of uncertainty in that area, and if Canada is truly seeking to attract the best and brightest as I indicated to a recent CBC reporter who did an article on express entry here just today, the reality is going to give people pause, is going to give companies pause as to whether they want to enter into the immigration streams within Canada. They will simply look elsewhere to other countries that offer more flexible options for senior and key personnel.

Okay thirteen. Under express entry the government has promised to process applications in six months or less, and wow that sounds great, that sound awesome to be able to do that when right now we are looking at processing times often of greater than two years for most of the permanent residence categories. So timely processing of these applications is obviously key to Canada’s ability to compete for global talent. So we are seeing Australia for example and New Zealand who these express entry model is patterned after secure permanent residence or offer and complete the permanent residence process for candidates in under six months.

And my own brother who is– he’s actually in Australia right now, immigrated with his family to Australia and had his permanent residence in under six months, and he went over with a masters in social work he had a good education and good human capital and those kinds of things, but he was able to get in really under six months.

So for our government to be able to achieve that standard that’s great without a doubt. However there are some questions that we have with respect to this process, because remember six months means six months from the date that they receive or accept a permanent residence application has been complete and then start to process it. So not the time a person swimming in the express entry pool, or the time between getting the invitation to apply and actually filling the application, it’s at some point, I’m not entirely certain when that clock will start to run, but probably when they accept the application for processing, it’s at that stage that the six month period that service standard will start to apply.

However, currently there is a mechanism to allow people whose work permits are expiring to obtain a bridging permit to bridge the time until their permanent status is granted. Well, CIC has stated that bridging work permits under express entry will be available only after approval in principle. This requires an assessment on the application on its merits and by delaying eligibility for bridging work permit applicants and Canadian employers cannot rely on a seamless transition from temporary to permanent residents. Now CIC in all honesty is taking away an existing benefit of allowing that bridging work permit once an acknowledgement of receipt of PR has been issued, and that’s how they have been doing it currently, when the application is receded and being accepted for processing, it’s at that stage that bridging permit can be issued.

But now under express entry they are indicating that it’s at basically at the first stage of approval, which is a later date and we are not entirely certain how long this is going to be, but still that’s something that’s being taken away from existing applicants. So these are some of the high level discussion points that we’ve been thinking about and are really seeking clarification from CIC. Ultimately if we get responses to some of these questions that we have or further clarification I’ll definitely bring this up in future episodes. However, this is just more of a food for thought I guess for those that are interested in understanding how express entry operates at a very high level.

However when we receive our response to the submission that we’ve drafted and submitted to CIC, I’ll make sure to discuss this like I said in future podcasts. So this concludes the forth episode of the Canadian Immigration podcast. I’m Mark Holthe an immigration lawyer practicing in the beautiful province of Alberta Canada, and we would– I’d encourage you to if you have any questions that you would like to ask to go to my website and you can submit them electronically in written form through our interface there, or if you would like to leave me a voice message you can also click on the tab that’s on the right side of my website called ‘Ask an immigration question,’ and leave a voice message for me.

These questions are responded to in my other podcast called Canadian Immigration Answers and we try to do those regularly as questions come in. If you need any direct assistance or otherwise with anything feel free to contact us and book an appointment for a paid consult. I look forward to our next podcast which should be coming shortly as more details are released regarding the express entry, and its scheduled launch in January the 1st 2015, thanks a lot.[/spoiler]

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