O Canada! Seyfarth’s News and Practice Pointers on Canadian Immigration

I. Government Updates

Service Canada Adds More Definition to the “Substantially the Same” Criteria

It’s been a year and a half since Citizenship and Immigration Canada (“CIC”), in cooperation with Human Resources and Skills Development Canada (“HRSDC”) and the Canada Border Services Agency (“CBSA”), developed dramatic amendments to the Immigration and Refugee Protection Regulations that took effect on April 1, 2011.

The implementation of the April 2011 regulations provided a set of criteria by which immigration officers now assess the “genuineness” of an employment offer.  The regulations also clarify that genuineness will be assessed in all offers of temporary employment--both Labour Market Opinion (“LMO”) and LMO-exempt--where an employer-specific work permit, as opposed to an “open” work permit, is required.

For the first time, regulations were established that direct immigration officers to consider the authenticity of a temporary employment offer.  In addition to establishing the “genuineness” of an offer, the regulations established the Substantially the Same (“STS”) criteria.

If it is determined that an offer of employment is not substantially the same (i.e., where an employer has been found to have provided significantly different wages, working conditions, or occupational duties than what was represented in the application), the employer could be subject to a two-year bar from the ability to participate in the Temporary Foreign Worker Program.  Hence, under this provision, the employer could be precluded from hiring any foreign nationals in Canada for a period of two years.

Recently, the STS criteria has been further defined by Service Canada to include not only decreases in wages but also increases and promotions.  It is Service Canada’s current position that a 2% or more increase in salary must be reported by the employer. Upon filing of an amendment, Service Canada will advise the employer whether a new LMO will be necessary. Indeed, it is Service Canada’s position that if there is a “substantial” increase in salary, there may be a Canadian permanent resident or citizen that is qualified, available, and willing to fill that position.

As for LMO-exempt work permits where Service Canada is not involved, a change of National Occupation Classification (“NOC”) in the position being held in Canada will trigger a requirement to inform CIC and request an amended work permit.

Beyond the Border Action Plan - Implementation of Phase One

On February 4, 2011, President Obama and Prime Minister Harper announced the United States-Canada joint declaration, Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. Beyond the Border articulates a shared approach to security in which both countries work together to address threats within, at, and away from our borders, while expediting lawful trade and travel.

Since the February 4, 2011 announcement, the Governments of the United States and Canada have worked to identify specific action items to advance the goals of Beyond the Border. These initiatives are described in the Beyond the Border Action Plan, which was released on December 7, 2011 by President Obama and Prime Minister Harper. 

The Department of Homeland Security and the Canada Border Services Agency recently announced that, effective September 30, 2012, both agencies began the Phase I pilot of the Entry/Exit program as outlined in the Beyond the Border Action Plan.  Routine biographic information will be collected between September 30, 2012 and January 31, 2013.  Beginning October 15, 2012, both agencies will begin exchanging this information to record entry into one country so that it becomes a record of exit from the other country. The pilot will not affect regular port operations in any way.

Under the pilot, the Department of Homeland Security and Canada Border Services Agency will exchange routinely collected data of third-country nationals (those who are neither citizens of Canada nor the United States), permanent residents of Canada, and lawful permanent residents of the United States at the following four ports of entry:

Pacific Highway, Blaine, Washington/Pacific Highway, British Columbia;
Peace Arch, Blaine, Washington/Douglas (Peace Arch), British Columbia;
Lewiston-Queenston Bridge, Lewiston, New York/Queenston-Lewiston Bridge, Ontario; and
Rainbow Bridge, Niagara Falls, New York/Niagara Falls Rainbow Bridge, Niagara Falls, Ontario.

The plan’s vision boasts a coordinated entry/exit system that will help the U.S. and Canada identify persons who potentially overstay their lawful period of admission, better monitor the departure of persons subject to removal orders, and verify that residency requirements are being met by applicants for continued eligibility in immigration programs.

II. Practice Pointer

Accelerated FBI Police Clearance Available for Temporary Resident Permit (“TRP”) Applicants

As part of the Temporary Resident Permit (“TRP”) application process, U.S. citizens and residents of the U.S. must provide an FBI police report as part of the supporting documentation.  The typical processing time for this report is approximately two to four weeks.

Recently, Canadian ports of entry have been accepting electronic FBI police reports through the FBI’s accelerated process.  Applicants may submit an application to an FBI-approved Channeler, which is a private business that has contracted with the FBI to receive the fingerprint submission and relevant data, collect the associated fees, electronically forward the fingerprint submission with the necessary information to the FBI CJIS Division for a national criminal history record check, and receive the electronic record check result for dissemination to the individual. 

The accelerated FBI police report is only accepted at Canadian ports of entry.  Applications made through a Canadian Consulate must contain the full FBI report

For more information please visit us at www.seyfarth.com/Immigration