The political, economic, and legal climates in Canada are constantly shifting when it comes to immigration, both temporary and permanent.
UNDERSTANDING POLICY AND POLITICS
As in many parts of the world, there is a movement towards restricting access to Canada for immigrants, but there are also countervailing economic and social realities. Indeed, Canadian immigration law was altered on 28 June 2002 (and further since) generally making the rules more restrictive. By contrast, certain programs regarding temporary entry have been made less restrictive – for instance for computer professionals – recognizing the realities of the economic demand in this sector. As such, though we hope to provide accurate, up-to-date information about Canadian immigration law and policy, you must investigate matters pertaining to your own case with the appropriate government office or professional at the time that you seek immigration, permanent or temporary. Further, Canadian immigration law covers volumes and volumes, which obviously cannot be condensed into just one chapter, so discussion, though as thorough as possible, is obviously limited.
There are a few important principles of which you should be aware, for an understanding of our immigration policies and philosophies. An understanding of these will often lead to a better understanding of the underlying law and regulations, and therefore the guidelines which will affect you.
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There are a number of principles set out in Canada’s Immigration Act. Canada’s immigration laws are designed to promote, for example:
cultural and social enrichment;
& trade and commerce through the temporary entry of visitors;
& Canada’s international humanitarian obligations;
& a strong and viable economy;
& maintenance of Canadian society’s health, safety, and security.
These basic principles are then molded to fit specific issues. With regard to entry for temporary workers, the philosophy is ‘net benefit to Canada’; that is to say, does an applicant provide Canada with some benefit to justify the hiring of a foreign worker? Contrast this with the philosophy pursuant to the previous law which was ‘Canadians first’. As will be discussed below, this leads to various procedures required to satisfy immigration officials before a foreign worker will be entitled to enter and work in Canada, and also an elaborate system of exceptions which must be considered.
With regard to permanent residence, the guiding principles go on to shape the criteria employed for the selection of immigrants. Indeed, recognizing demographics, commerce, and other issues, Canada promotes immigration, though in recent times there sometimes appears to be a harsher attitude among those making the selection decisions. Canada’s Federal Court is full of cases of rejected immigration applicants and there appears to be no let-up in sight.
With this in mind, let us explore some of the issues in Canadian immigration.
Before looking at the general issues involved in getting into, or staying in, Canada, it is important to realize that violation of Canadian immigration law could have severe consequences. We will discuss below the various programs and policies affecting immigration to Canada which will allow people to come to, and remain in, Canada. Certainly, however, in the last few years, there has been a rise in illegal immigration to Canada, and the authorities are taking an increasingly harsh stance against people caught in this position. If you attempt to enter Canada without the appropriate legal authorization and documentation, you will meet a stern turn-around from Canadian immigration authorities, whether before you board the plane or after you land, whenever the problem is detected. Canadian immigration authorities are now conducting checks of persons at airports abroad before people can even board the plane.
Similarly, someone already in Canada who breaches Canadian immigration or criminal law will face possible deportation. Meeting the requirements of Canadian immigration is no laughing matter, and the consequences of failing to obey the rules could lead to deportation and the inability to return to Canada ever again.
KNOWING THE GENERAL REQUIREMENTS
If you are seeking to enter Canada, you should ensure that all proper requirements are met. These may include:
- & Obtaining a visa before arriving, for certain nationalities. The list changes from time to time – see Figure 3 for the current list. A Canadian Visa Post should be consulted if there is any question.
- & Ensuring that there is no criminal bar to entry – a criminal record could lead to denial of entry to Canada for permanent or temporary purposes.
- & Ensuring that there is no medical inadmissibility issue – the existence of an ailment which could jeopardize Canadian health and safety, or be a burden on our health system, could lead to inadmissibility.
- & Further, specific requirements may be needed in particular instances, such as a work permit for those seeking to work in Canada. We give you here the basic idea about the legal issues involved in the process. Once you feel that you may qualify under one of the areas discussed, you will have to deal with the procedures involved. You will need to:
- & obtain the appropriate forms – note that since November 2008, all skilled worker permanent residence applications are sent to a central processing center in Sydney, Nova Scotia. From there, files are screened and sent to the geographically appropriate visa post for further processing. Basic information is submitted to Sydney, but further documentation is submitted only upon request by the local visa post;
- & look at the practical issues involved in submitting an application;
- & ascertain the proper documentation which will be required from a Canadian VisaPost, to be ready when the time comes. Canada divides the type of people entering the country into two basic groups – temporary and permanent – both of which are discussed on pages 32–43.
TEMPORARY VISA ISSUES
Temporary entry can be broken down further into three branches:
& temporary residents (formerly ‘visitors’) & students
& foreign workers.
There are exceptional circumstances that can give rise to entry on other grounds (through, for instance, a Temporary Resident Permit where someone may not otherwise be admissible), but these are the basic categories. It should be noted that even for those people for whom the student or worker categories seem applicable, the issues relating to temporary residents discussed below relate as well and should be considered.
Visitors are temporary residents who come to Canada neither to study nor work. Visiting can, of course, have various purposes, from the simplest form of someone who is just a tourist, to those coming for a business visit. Anyone who is not a student or worker will be put into this broad category.
Technically, anyone seeking to come to Canada as a visitor must obtain a temporary resident visa at a Canadian Visa Post (Embassy, Consulate or High Commission dealing with immigration matters) before entering Canada. Nationals of certain countries, including the United Kingdom, have been exempted from this requirement (see Figure 3 for a list of countries requiring visas). However, this does not mean that British citizens, as just one example of a visa-exempt country, are immune to the enforcement of Canadian immigration law. Indeed, anyone appearing at a Canadian port of entry (anywhere where one enters Canada, either at an airport, seaport, or land crossing) must justify his or her entitlement to enter Canada and maybe questioned as to the reason for seeking entry.
In addition to the issues discussed above, those wishing to study in Canada must meet some further requirements, and must generally obtain the visa for studying before arriving in Canada. First, a student must have an acceptance to a Canadian educational institution. Certain institutions will not qualify, and it will be necessary to check with a Canadian Visa Post or immigration professional before making the application.
As a student, you will also have to demonstrate your ability to support yourself while in Canada – perhaps with a sum of some $10,000 to $15,000 or more – and the intention to return when studies are concluded. It is again important to note that a student visa is temporary and applicants must convince an officer that it is not their intention to remain in Canada permanently. That being said, it is possible to extend student visas after arriving in Canada, as the educational program proceeds from year to year or another time frame, or if there is a change of institution. Eventually, however, the visa will end.
Students in some cases will also be entitled to a non-renewable one-year or two-year work permit at the conclusion of their program to work in their field of study.
See also the discussion in Chapter 8 about some of the exchange programs and other student-specific programs for coming to Canada.
This is perhaps the most asked about, and misunderstood, aspect of Canadian immigration. People often say if they can’t get permanent residence, they will just come to work temporarily. Unfortunately, it’s not that easy. A temporary work permit is not a substitute for permanent residence or a lesser form of permanent residence. It is sometimes more difficult to get a temporary work permit than a permanent residence. See also Chapter 7 for information about working in Canada.
The usual process
Subject to exemptions discussed later (which should be tried first when possible), the general procedure to obtain a work permit is as follows.
Canada’s policy, as indicated, is ‘net benefit to Canada’. A foreigner can work in Canada only when this is justified, and may include issues as to whether there is no Canadian to fill a position. Therefore the process begins with the employer.
According to the legislation which took effect 28 June 2002, an employer must establish a number of factors to an officer of Service Canada (operating on behalf of Human Resources and Skills Development Canada) before a ‘positive labor market opinion’ (also referred to as a Confirmation or LMO) can be provided, which is the precursor to a work permit application. The Service Canada officer will consider factors including:
- & whether the work is likely to result in direct job creation or job retention for Canadians (Canadians includes citizens and permanent residents);
- & whether the work is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadians;
- & whether the work is likely to fill a labor shortage;
- & whether the wages and working conditions offered are sufficient to attract and retain Canadians;
- & whether the employer has made or has agreed to make reasonable efforts to hire or train Canadians;
- & whether the employment of the foreign national is likely to adversely affect the settlement of a labor dispute. Once Service Canada provides a positive Labour Market Opinion, a foreign worker may then proceed to apply for a work permit at the appropriate Canadian Visa Post (or in some cases, port of entry). The worker will need to substantiate that his or her credentials meet the requirements of the job in question. Obviously, as well, a temporary work permit is indeed temporary, generally issued for an initial period of one year, and renewable thereafter – if the reason for the renewal can be substantiated.Based on the structure of the program, the reality is that the less sophisticated a job or an applicant’s credentials, the less likely that Confirmation and/or work permit will be granted since it is less likely that there are no Canadians to fill the position.
Typically, the occupations permitted are considered NOC 0, A, or B. Though somewhat beyond the scope of this book, NOC is the National Occupational Classification. All occupations are placed on a grid and ‘0’ level are management positions; A and B are high level – usually requiring a university degree – occupations (more information about NOC and the categorization of occupations can be found at http://www23.hrdc-drhc.gc.ca/2001/e/generic/matrix.pdf). Service Canada, however, does now offer a ‘low skilled worker program’ (NOC C and D) which will allow employers to seek a Confirmation for low-skilled workers if the employees meet certain recruitment and working conditions requirements. There are a number of conditions to be met in this regard, and perhaps most notably, a sustained attempt to look for persons for the position.
Service Canada offers, from time to time, ‘enhanced’ programs that may benefit employers (and hence employees). For instance, there exists at the time of publication of this edition, an expedited labor market opinion process for British Columbia and Alberta. Through this process, an employer can essentially register that they are often in need of certain occupations, on a prescribed list, and when they have a need in that field, they can submit a simplified application that will be processed in just a matter of days.