Question [Holthe Tilleman LLP website]
I am an international graduate on a three year Post Graduate Work Permit. My work permit is going to expire in April of 2016. I submitted my application through the AINP in February of 2014 as a food service supervisor, which is still in process.
I have two questions regarding what I should do now before my work permit expires.
- Should I try to submit my application through Express Entry without a Labour Market Impact Assessment or continue to wait for my AINP application to be approved?
- My company wants to promote me to a new position as a sous chef but I do not want it because it could affect my AINP application as a food service supervisor. Should I take that position or not?
[Tweet “Should I apply under Express Entry or wait for my AINP application to be processed?”]
Listen to Mark Holthe’s Answer
Read the Transcript
You can download a complete, word-for-word transcript of this episode here OR [spoiler] Welcome to the Canadian immigration podcast. Today is August the 5th 2015. Today’s question comes from Ripu, and I hope I’m pronouncing Ripu’s name correctly. With that being said, those of you who would like to leave a question for this podcast, another alternative is to leave a voice mail message for me on the website, and there’s a widget that is on the right side of the website. And if you would like to leave me a question, you can also leave a voice message for me with your question in that fashion, and if the quality of the voice is sufficiently clear, I will input your question into the podcast directly so that I don’t have to read it and mispronounce your name. Anyway, so Ripu sent me an email on August the 2nd and its entitled AINP. So we know that this is going to be related to the Alberta Immigrant Nominee Program. So I suspect Ripu is here living in Alberta and practicing.
He indicates here in his message, “Hi mark. I’m an international graduate on three years’ post grad work permit. My work permit is going to expire April 2016. I have applied for my AINP in February of 2014 as a food service supervisor which is still under process. So my question is what should I do before my work permit expires? Should I try express entry without an LMIA, or wait more for the AINP. And my second question is my company wants me to be promoted to a Sous Chef, but I do not want to take it, because my AINP is entitled as a food service supervisor.” And his question is obviously, “can I take that position or not?”
So as can be seen from Ripu’s situation here, he is on a three year post grad work permit that cannot be extended without an LMIA. And his first question basically revolves around what should he do? So as time is running out, we know that the processing times with the Alberta Immigrant Nominee Program are lasting a long time, upwards of 25 months. This is not a first day and first out process.
So just because you submitted your application before another candidate doesn’t necessarily mean that your application will be processed first. The AINP has the ability to determine which industry they are going to allocate the nominations that they’ve been given. And each year currently they have a quarter of 5,500 nominations. And over the few years, the food service industry has dominated the number of nominations that have been granted.
So because of that, the program manager, Bratcher Fan has had a very difficult job in determining which industries would receive the nominations. And he has done his very best to allocate them evenly amongst the industries that are in demand, and to not over favor any one industry over another. So unfortunately for Ripu, the likelihood of the nomination coming through any time soon is probably a little bit more remote.
Now there’s no guarantee, and I’m sure if I asked everyone to comment on this particular podcast what their experience is, we would find many people that have had their AINP nominations extended, who have actually submitted their applications after Ripu, and others that maybe in the exact same situation who have not received their nominations from the province. Obviously as an immigration lawyer, it has been extremely difficult for me to properly advice people on what to expect, because there’s often no rhyme or reason as to what happens.
So on the case of Ripu here, he asks “Should I try to file through express entry without the LMIA or should I wait?” Well, one piece of advice that I’m giving all of my clients and all individuals who ask is to apply under every possible category that you qualify under, because of the uncertainty that citizenship and immigration Canada has created. In other words, because no one is guaranteed a nomination through the province, or even guaranteed an invitation to apply through express entry. As a result of this uncertainty, every single person should apply under every category that they have the option of applying under. You can have multiple permanent resident applications. You just can’t have multiple sponsorships if you are sponsoring a family member.
So if you want to file under one of the Provincial Nominee Programs or submit another application through express entry, then by all means submit them because with no guarantee, it’s best to cast that net wide and give yourself the absolute best opportunity of success in the end. Let’s face it, if you have an express entry application that is nearing completion and you have a PNP application that is still in the queue, once the express entry goes through, then you can simply withdraw the Provincial Nominee Program application.
Now some people may say, “I have to pay $550 as a processing fee to submit that application,” and that is true. So there’s some cost to this multiple application strategy. However, if the difference is being able to remain in Canada as a permanent resident and not, then I can tell you I know very well which option that I’m going to choose for $550 which is a lot of money. If it’s difference between being able to stay in Canada and having to return home wherever that home may be, I know what I’m choosing. So I recommend for Ripu that you actually do proceed forward with express entry even though you do not currently have an LMIA.
Ripu’s second question relates to whether or not he should allow his employer to promote him to a position of a Sous Chef from his current position of a food service supervisor. And the reason that’s an issue is because his AINP application appears to be tied to that position. So there are a number of different categories that Ripu could have applied under. Ultimately the post grad work permit, I don’t know where that was obtained. But there’s international graduate category, there’s also within the strategic recruitment stream, there’s a post graduate category, or there’s the employer driven stream. And so depending on the type of application that Ripu applied for, it may be critical that he remain in that position.
Now over the last few years, the AINP has not been as willing to allow an employer to move an individual to a different position when an application has been in the queue. It just creates more work for them and with high volumes of applications they are really looking for every opportunity they can to bounce applications. Now ultimately it’s possible for Ripu’s employer to reach out to the AINP and say, “Hey, we are looking at promoting him to a Sous Chef position.”
They would obviously at least over the next little while, because he’s under the post grad work permit category, at least that’s his work permit. He can be promoted to that position without need for an LMIA or any other change, but it is possible for the employer to reach out to the AINP and ask them what they– you know if it’s possible for them to continue to support his position as a Sous Chef, and to make sure that he doesn’t lose his position in the queue.
Now there’s no guarantee of that, but that’s something that I often will instruct my clients to do, or we would do on their behalf. We would reach out to the AINP and ask them for direction. There’s no policy on this, so it’s difficult to know for certain how they would treat this. So with respect to that, I think that’s really the issue. Ripu needs to decide if the position that he’s going into as a potential Sous Chef, if it makes sense for him to do that based on whatever the AINP says.
So one thing we’ll find as we go through these question and answer process with the Canadian Immigration Answers podcast is that there are often no clear and decisive answers to every question that’s asked. And I’m almost positive that people that will be listening to this podcast, will say to themselves, “Hey I did it a different way and it worked out just fine.” So understand that with lack of clear policy, there are really a number of different options that could be pursued depending upon the pre-directions of the officer who is adjudicating the application.
And so these suggestions that I’m giving are definitely not the only options that are available. And I definitely don’t pretend to be all-knowing when it comes to every aspect of immigration. But I know that these strategies will work if an individual follows them. And ultimately, although there may be other pathways forward, I’m confident in giving these suggestions.
Now because of the complexity of this situation, Ripu, you will definitely want to make sure that you have all the information that you can before you make any decisions. And it’s very easy for an employer to just promote you because they really don’t have a stake one way or another in your permanent resident process. They just want to have a worker who is working in a position that they really want them to work in. And sometimes you have employers that are very loyal to you but often you as an employee you are of value to them, because you are making them money. And you need to look out for yourself. You need to make sure that you are protecting your own interest, and so you were very-very wise to take the time to consider this before you rush in to accepting a new position, which I presume will also come with an increased wage.
So this concludes this episode of the Canadian immigration answers podcast. I hope that the general information that was provided today is of use to others out there. Once again, I want to invite anyone who would like to leave a question for us to answer through this podcast through our website at www.ht-llp.com. And you can leave a message there, you can send me an email, you can leave a voice message on our widget that is on the side bar, the right sidebar of the website. And if you leave a voice message I can even embed it directly within to this podcast if the audio quality is sufficiently good.
So thanks a lot for listening today and instead of my regular outro I have got a little song that I thought will be really fun to have and to include at the end of this podcast so that if people look at it will authorize and say, “Hey that’s kind of goofy.” You can just end the podcast right now. But I thought it was kind of fun. It’s kind of just a fun little song that’s representative about how I feel about this beautiful country Canada, and whatever I can do to help you out there, navigate your way through the complexities of this crazy immigration world. All right, thank you very much and I hope to get back to you soon with more answers to your immigration questions.
Thank you for listening to the Canadian Immigration podcast, your trusted source for information on Canadian law, policy, and practice. If you would like to contribute a question for future podcasts, or wish to set up a legal consultation with Mark, please visit www.ht-llp.com.
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