Many countries have permanent resident paths based on investment in the local economy. These are set up as policies to boost economic growth through local hiring, building facilities, and selling products and services. Canada used to have several passive investment programs that allowed for investors to be rewarded with permanent residency, but these have almost all been deprecated. Quebec alone runs one, but it is now on pause as well.
Investment in Canada must now be active, with either a start-up, or buying an existing Canadian business from someone else, and actual running it. In addition to the federal Start-Up Visa program, different provinces have different ways to invest in their economies. For example, the prairie provinces of Alberta, Saskatchewan, and Manitoba have farm investment streams (all of which require active management), while other provinces have a variety of other types of businesses foreigners can invest in.
Because running a business is a major endeavour, applicants must show they have some language skills, available funds, and experience as business owners or managers in the past. Commitments to hire certain numbers of Canadians, and expectations of profit, are also important. Prior business trips to Canada are also important, not just for their benefit, but because some programs give additional points for doing them.
Since these immigration paths are overwhelmingly economy-focused, applicants are rewarded for investing in rural or otherwise neglected areas that do not receive much immigration or new employment opportunities. Incentives include lower net-worth or minimum investment requirements. These investment streams all require preparation, even more than employment streams do. Applicants should be prepared to have their business plans closely evaluated, along with market research, profit expectations, and other pertinent details.
Once a business is running for some time, it is evaluated by the provincial or federal government to ensure it has or will meet the promised goals.
Because of the great complexity of entrepreneur immigration programs, it is not recommended to apply without a great deal of planning. Speaking to an experienced immigration lawyer is the best way to minimize risk, in the absence of any passive investment path in the future.
Open Work Permits
Open Work permits are some of the most desirable work permits, as they avoid the time and expense of an LMIA while allowing the holder flexibility to work in almost any type of employment in Canada. The previous post discussed one kind of open work permit for those who graduate from a Canadian college or university, but a number of others exist. IRCC provides them for several different situations. Some permits will be limited depending on another persons status, while others can be long term and repeatedly renewed.
In a spousal sponsorship, the Canadian citizen or permanent resident spouse (or common-law partner) often desires their partner to work in Canada before the application is finished processing. For both inland applications, the sponsored person can submit an open work permit application that will allow them to work in Canada while the main application is processing. As open work permits are processed much more quickly than PR, often in a few months or even less, this is a strongly desirable option, and the majority of sponsors have no issue applying for both at once. It makes sense in policy terms that partners should be able to work (and thus pay taxes), rather than waiting idly for the year or more that processing will take.
A study or work permit holder’s partner can also apply for an open work permit, if they meet certain conditions, such as the work being of a certain skill level, and the main permit holder’s permit not expiring within the next 6 months. IRCC does not provide such short term work permits, so it is advisable to apply for the open work permit as soon as possible when he first work permit is approved.
The same holds for study permits; apply for the open work permit as soon as the partner’s classes start, to obtain the maximum period of time. They must be eligible for a PGWP (see prior post).
Both of these work permit applications will require other information, such as confirming the validity of the relationship, or the submission of the sponsorship application. The former can be difficult, as IRCC requests particular evidence of a relationship in their attempts to limit immigration fraud.
Open work permits can also be provided for refugees, refugee claimants, and other protected persons and their family. As the refugee and asylum processes can be quite long, this allows them to continue working while their claims are evaluated.
Because of the wide variety of options for obtaining an open work permit, it is recommended that you speak to an experienced immigration lawyer about them.
Post Graduate Work Permits
The advantages of studying for a higher education in Canada are known worldwide. With one of the best education systems, welcoming culture, and growing economy, international students come in very large numbers to study here. A major advantage, apart from the value of the education itself, is the opportunity to work in Canada for longer periods. This is not just part-time off-campus work, or co-op terms as part of the conditions of a degree. The Post-Graduate Work Permit (PGWP) is an open work permit that allows full-time employment by graduate students for up to 3 years in almost any occupation, which gives both flexibility and the opportunity to gain valuable Canadian work experience. It is a natural prior step towards applying for permanent residency through Express Entry (see the prior series of posts on that program for more details). A spouse or common-law partner may even qualify for their own open work permit, as well.
For students interested in this benefit (or even prior to being admitted to the school), certain details are very important.
Normally, the work permit cannot be extended beyond the initial validity period, but in 2022 and 2023, due to the impacts of the COVID-19 pandemic, IRCC made policy changes to allow extensions of 18 months, along with interim authorization. The normal 90 day limit on restoring status is also waived in order to allow those who left Canada when their permit expired to return and thus continue contributing to the Canadian economy.
It is self-evidently good policy to allow former students who obtained an education, often over several years in Canada, and then worked for perhaps just as long to be allowed to remain in Canada to prevent any gap in employment between the expiration of the work permit and the submission of an application for a bridging work permit as part of a PR application.
More information about bridging open work permits will be detailed in the next blog post.
LMIA Exemptions Blog Post
Given that LMIAs can be costly and time-consuming to obtain, for both the worker and their potential employer (see prior post), finding a proper exemption is quite important. IRCC gives exemptions from the LMIA process for some kinds of work permit applications, based on practicality, fairness, and national/international interest.
LMIA exemptions are organized into codes, which are put in the work permit application, to denote the kind of exemption for which the worker qualifies. Officers will, of course, review the circumstances and determine if the exemption is valid or not.
Some of these codes are self-evident; an open work permit allows a worker to choose any employer in Canada (with a few minor exceptions). It would make no sense to do a Labour Market Impact Assessment in this situation). The work itself sometimes also precludes the need for an LMIA; pilots of aircraft, foreign security guards, US border agents (such as at the Canada-US border posts) are also self-evidently not part of the Canadian labour market. Athletes and coaches visiting Canada for a game, short-term business visitors, investors, and others also have their own codes. International students doing work co-op, medical fellows, religious/charity workers, and many others fall under such limits.
Other codes are dependent on the prospective worker themselves; do they have a specialized skillset or education that cannot easily be found in Canada? If so, the specialized knowledge code can be used, but the applicant and the employer must be prepared to show evidence that they are in fact qualified and have the education/experience they claim.
Another major exception to LMIAs is the Intra-Company Transferee (ICT), which is for foreign workers being moved to the Canadian subsidiary or branch of a foreign company. The application must still show that the employee is necessary, and the employer will need to provide the appropriate background information.
If the employee is an executive/manager, it should be easy to demonstrate such, but specialized knowledge can be more difficult. Showing that they are critical to the Canadian portion of the business may be more difficult, since it must be shown that the knowledge is unique or uncommon in Canada with the existing employees and any potential Canadian employees.
For any work permit, regardless of LMIA or not, having an experienced lawyer is important, to ensuring that a work permit or an extension is successful despite any complexities that may arise.
Labour Market Impact Assessment
The majority of foreign workers in Canada require a work permit; there are limited exceptions for special scenarios and types of work, usually situations where it would be impractical or impossible to go through the same process. For the rest, a work permit may either require an earlier step (Labour Market Impact Assessment, or LMIA) or not. This post will be a brief overview of the former.
The Temporary Foreign Worker program is designed to help employers with labour shortages in Canada that they cannot meet with recruitment from Canadian citizens (or permanent residents). To verify that this is the case, the employer must provide details of the position and the person/people being hired to a government agency (Employment and Social Development Canada).
ESDL will evaluate the position based on the provided details, to determine whether the effects of hiring them will have a positive, neutral, or negative effect on the Canadian labour market. In other words, they check if the hiring is truly necessary, or whether a Canadian or permanent resident could have filled the same role instead.
The types of applications are divided by whether the wage is at or above the median wage in the province/territory (high-wage stream), or below (low-wage stream). There are also separate categories, for agricultural workers, caregivers, or specialists with high skills in a particular industry.
Regardless of the subcategory, an employer needs to be verified as legitimate Canadian businesses, if making their first application. Regular LMIAs afterwards can then skip this step.
A major part of an LMIA application is the advertising requirements; employers must show they advertised the position in various locations with no success in finding a good candidate before they resorted to offering the job to a foreign worker. The application must also list details of the job offer, including wage/salary, benefits, specific duties, required skills/education, etc.
After ESDC receive an LMIA application, they will evaluate the work based on all these factors and the current status of the job market for the position, at which point they will issue either a positive or negative assessment (or neutral). A positive or neutral assessment allows the applicant to apply for a work permit (within a set amount of time).
With the work permit application, the LMIA number must be included, along with the details of the job offer/contract. Although LMIAs are usually valid for 1-2 years, it is always best to make sure the work permit is as strong as possible, to avoid wasting time and expense.
Due to the advertising requirement, LMIA processing times, and work permit processing times, it is not necessarily the fastest (or cheapest) way for someone to begin working in Canada. The next post will detail the various LMIA exemptions in more detail.
EXPRESS ENTRY PART FIVE
Understanding the rounds of invitations for Express Entry is important for anyone who wishes to proceed in the program, and this blog will detail that process.
Periodically, IRCC, through a Ministerial Instruction, issues Invitations to Apply to candidates in the Express Entry pool. These instructions are somewhat technical, but they state exactly what the Immigration Minister sets for that round in terms of rankings (i.e. points in the profile), class (i.e. which of the 4 subprograms is selected), and the total number of invitations.
The timing of the ITAs varies due to internal and external events, and even immigration lawyers have limited insight into their internal processes. However, certain patterns are apparent from the public data. Draws generally occur, every two weeks, in order to align with IRCC’s capacity for processing.
The categories drawn are also affected by outside disruption; in March 2020, with the vast disruption of the pandemic to the world (and immigration in particular), IRCC began to focus on those who did not face entry barriers to Canada, by restricting invitations to the Canadian Experience Class and the Provincial Nominees. The former are already working in Canada, and so faced less disruption to their immigration for obtaining PR, while most of the latter were either already in Canada or had job offers, and so were economically important enough to be allowed to travel despite the pandemic border restrictions. Those in other categories were left out for lengthy periods of time in 2020, 2021 and the first half of 2022. Many profiles expired in the meantime, and candidates had to either recreate their information for another year, or in some cases, aged out of the Express Entry program completely.
Since then, as the pandemic restrictions were lifted, the ITAs have returned to the old biweekly pattern, with all classes being regularly included in draws. Periodically there will still be draws for PNP only, but these are now the exception. With the barriers of the pandemic gone, having a higher score is now important again, as they are the main way IRCC selects candidates.
Thankfully, IRCC posts the number of invitations and the lowest score selected with each draw on a public website at: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/submit-profile/rounds-invitations.html, so it is easy to see the ballpark range for an invitation, based on prior history. However, there will always be some uncertainty, and every once in a while they will do something unexpected in scoring, such as February 13, 2021, in which a very large number of invitations was sent out due to an unusually low cut-off score. Many who would otherwise never have qualified for an ITA were put on the road to PR. Such a draw has not has not recurred since, but the lesson is to expect the unexpected. IRCC has in the past, and will in the future, announce make changes due to new public policies and their own internal requirements, which even the most well-informed outsider cannot predict.
Express Entry: Part Four
Provincial nominations can be both attractive for many applicants, due to the large number of points they provide in Express Entry, while also being difficult to acquire. Some Provincial Nominees are both a subset of Express Entry, while also being separate from the program and applying for PR outside the process entirely. This blog post is about the former.
A nomination is awarded to applicants as an incentive for settlement or commitment to settle in specific provinces; unlike the other Express Entry categories, the province one will live in as a permanent resident isn’t particularly important for IRCC. A province, however, is attempting to attract educated and experienced people, and wants some guarantees that they will contribute to the local economy in exchange for being assisted in the PR process.
Part of the difficulty is the fundamental need to prove that one of Canada’s provinces is going to be an applicant’s place of settlement. Each province has its own programs and subcategories, with oftentimes different requirements from federal immigration (though the latter is still mandatory and IRCC will make the final decision on PR regardless of nomination).
As there are 9 provinces excluding Quebec, each with their own Provincial Nominee Program, an applicant will need to explore their options if they haven’t already settled on one in particular. Sometimes the choice is self-evident; someone working or studying in Canada is already in a province, and may meet the requirements of one of the PNP programs, such as work experience or recently graduating from a school in that province, or being skilled in a specific occupation that the province is trying to fill in its economy. The connection to the province will be the factor that gives the nomination, and the applicant can apply through the provincial system to receive the PNP Certificate.
This certificate is what gives the large number of Express Entry points; it is valid for a limited time, but usually an ITA is received very soon after a profile is updated. More important is ensuring that the conditions of the nomination are maintained; if a specific employer gave a job offer, the applicant should continue to work there, and they must especially continue to live in that province throughout the processing of their application. A province can otherwise withdraw a nomination, the applicant can lose the extra points from the profile, and their PR application will be refused.
If a person has never visited Canada before as a student or worker, many PNPs are out of reach, as they cannot easily prove they will be moving to a particular province. One exception is having a job offer from a Canadian employer; most provinces have subcategories for applicants in those situations. They still need to provide many details about the offer, such as the salary, duties, information about the employer (i.e. registered and actually running a business in the province), etc., in order to combat fraudulent job offers. There is still waiting time for the provincial agency to process the PNP application, but at the end, they are well-suited to receiving an ITA much faster.
Because PNP profiles have so many extra points, they are usually drawn in separate rounds of invitations by IRCC. However, this is still a far greater chance of being drawn than with a ‘regular’ score in one of the other categories. The point cut-offs, and the patterns in draws fluctuate constantly with IRCC’s processing capacity and their annual goals, so to have a better idea of whether PNP is right for you, you should speak with an experienced immigration lawyer.
Express Entry: Part Three
The Express Entry program is so broad in its attraction of candidates, that IRCC’s system sorts every profile into 4 subcategories. Although the end result of each is the same (permanent residency), each one has substantial differences despite some overlap overall. This post details all 4 of them at a basic level.
The Canadian Experience Class is for applicants with at least 1 year of skilled work experience in Canada. It is the main category for work permit holders who have spent enough time in Canada to acquire such experience within the last 3 years before applying (so it can include candidates who completed work and then returned to their countries of origin recently). An applicant may have this work experience in part-time or full-time form, but they must have been physically present in Canada (i.e. not remote work done at a distance). The applicant must have higher language skills, if the skill level of the work was higher, but they do not need to have had secondary or post-secondary education, or a job offer from their current or former Canadian employer (though both of these help with points).
The Federal Skilled Worker Program covers all applicants with at least one year of skilled foreign work experience within the last 10 years. It must have been accumulated all at once (continuous). All FSW applicants must have higher language skills, regarding of their main chosen occupation. A secondary education is also required, and since the majority of foreign workers did not study in Canada, a credential assessment is required for this to be recognized. Unlike CEC, FSW applicants must also show they have the funds needed to settle in Canada; a requirement waived if they have a valid job offer or are already working in Canada.
Applicants may be qualified for both the FSW and CEC program, but those qualified for both will be preferentially invited in the CEC program, since its requirements are slightly easier to meet.
The Federal Skilled Trades Program is much more narrowly-tailored than the first two categories. As the name suggests, it is for those with experience in skilled trades, as defined by the National Occupation Classification codes. There are too many to list here, but they broadly cover the various technical and general trades, natural resource production, and some other special types of work that IRCC defines as a trade. They need experience for 2 of the last 5 years (again, either part or full-time), and their language requirements are somewhat lower than the first two categories (and there is no higher education requirement). Importantly, the work experience must not be as an apprentice under someone else; they must be fully qualified to work in whichever country their experience is in.
The most difficult aspect of this program to meet is the mandatory requirement to have either a job offer from a Canadian employer, or a certificate of qualification for the skilled trade in question. Both of these can be difficult to obtain without having prior work experience in Canada or taking exams. Each Canadian province has its own requirements for qualification, so the choice of where to live in Canada is much more important than the other two categories as well.
As with the FSW program, applicants must also meet financial requirements by showing they have the money to cover the costs of their settlement (and that of their accompanying family) in Canada, unless they have a job offer or already have a work permit.
Provincial Nominee Program
This is a subcategory of all of the above; when an applicant is qualified for any of the above programs, they can also be nominated by a province, which gives them a large number of points, enough to guarantee being chosen in the next round of invitations. This is a more complicated program, however, and will be discussed in greater detail in part four of this series.
Express Entry: Part Two
The second blog post of this series details the preparation needed to create an Express Entry profile, and then use the time waiting for an invitation wisely.
Every candidate, regardless of their country of origin, must obtain mandatory documents before they can create a profile. These are a travel document (usually a passport), language test results (English and/or French), and work experience, (in either high or mid-level skills positions). Most will also have a post-secondary education credentials at various levels, which, if it was not obtained in Canada, must have an assessment completed by an organization IRCC has recognized. Passports, language tests, and education credential assessments (ECAs) are all 3rd party expenses that an applicant must be prepared to spend time and money collecting. For language tests in particular, where a higher or lower score results in more or less profile points,
doing the test multiple times is sometimes advisable.
Because education gives a large number of points, and is a minimum requirement for one of the Express Entry subprograms, prospective candidates can receive an unpleasant surprise when they receive the assessment and discover that there is either no Canadian equivalent for their foreign degree, or that the equivalent is lower than they expected. In such cases, the Express Entry program can be cut off as a plausible path even before it began, and clients must choose either another way of entering Canada, or obtaining new education that does have a Canadian equivalency.
Those candidates who completed a Canadian education, such as study permit holders at a recognized college or university, will have an easier time in these cases; they need provide nothing more than their Canadian diploma and transcripts to meet the education requirement.
Similarly, candidates fluent in English, French, or both will have an advantage on the language test, and should easily be able to meet the 4 benchmarks the tests measure (speaking, listening, reading, and writing).
Another early point you should know is the importance of obtaining proof of prior work experience. Those with many previous employers will have a harder time of this, especially since IRCC requires a specific format for work experience letters. Speaking with an experienced immigration lawyer can allay many of these concerns.
Age is a factor naturally out of control for any applicant; maximum points are awarded for the ages of 20-29, with applicants 30 and above gradually lowering to zero points for those 45 and above. For the vast majority of applicants, it is generally a non-factor, with strong profiles being picked quickly enough that points rarely drop below the minimum. Moreover, once an ITA is received, a candidate’s score is ‘locked-in’, and a future birthday will not have any negative effects on the processing.
The Express Entry system calculates scores every day based on a profile’s characteristics; when a birthday comes, the score will change appropriately, while if the anniversary of work experience comes, the score will go up to show that experience requirements have been met. The Canadian Experience Class category has a particularly important milestone when a candidate, usually on a work permit, reaches 1 year of experience in Canada.
However, many aspects of a profile will need to be edited manually after submission. Finishing a degree, completing a newer language test, or starting a new job, as well as changes in marital status is particularly important to keep up to date. Receiving an invitation based on points that are no longer valid is an easy way to be rejected in the final application.
When to obtain documents is a question of strategy as well; if an applicant is relying on past work experience for their points, they are advised to obtain their experience letters even before receiving an ITA, rather than waiting. For current work, it makes more sense to wait until the ITA, since it would otherwise fall out of date as they continue working.
Similarly, documents with expiration dates should be obtained at the right time, to avoid having to re-obtain them later. Since police services throughout the world differ in their procedures and requirements, it is advisable to inquire with them at an early stage about processing times, fees, etc.
Some of the documents required for a profile have expiration dates too. 2 years for the language tests, and 5 years for ECAs. A profile may be removed automatically from the pool if those dates come and go with no update, forcing the applicant to recreate it from scratch. However, as with age, once an ITA is received, they are ‘locked in’ and an applicant no longer needs to worry about obtaining them a second time.
Keeping track of all of the above can be complicated, which is why an experience immigration lawyer is your best ally for avoiding the seemingly small bureaucratic pitfalls that can doom an otherwise perfect application.
Express Entry: Part One
Canada’s most well-known permanent immigration program is Express Entry; it welcomes qualified applicants, along with any close family, from across the world, to this country, giving them permanent residency; a highly sought after status, almost as good as citizenship. But what is a qualified applicant? How do you navigate the points-based system that often has significant complexities around it? This blog post is a high level overview so that you can see if this path to Canada is the best for you, or whether another is more suitable. It is a complex topic, with multiple parts needed in order to fully explore Express Entry at a serious level.
Express Entry is based on the principle of ranking candidates based not on country of origin, background, or time an application is received, but on points. To that end, there is a two-stage process for anyone using Express Entry; the first is creating a profile to enter the candidate pool, and the second is being selected to submit an application (an Invitation to Apply, or ITA, in IRCC terms). No one can apply directly for Express Entry until they are invited, and invitations are given on a very limited basis; this make the first stage (entering the pool), critical to success.
How do you enter the pool of candidates? There are minimum criteria in the online system which prevents anyone with too low a score from even creating a profile in the first place. Thankfully, one can easily go through the online questionnaire provided by IRCC to see if one meets the minimum requirements. Their emphasis is on skilled work experience, language skills, and education, with a minimum of 67 out of 100 possible points being needed in order to create a profile.
Just because an Express Entry profile can be created doesn’t mean that it’s easy going to stage 2, receiving an ITA. A separate points system ranks all the candidates in the pool. It has no upper limit on points, which means the more points a candidate has, the better their chances in the periodic draws IRCC does. Each draw is publicized on the Express Entry website, listing the minimum scores for candidates, the total number of invitations sent, and which subprogram of the Express Entry system (there are currently 4) was invited.
This is where the candidate’s individual criteria come into play even more critically. Age, work experience and education inside or outside Canada (since both international students and workers can apply from inside the country), as well as language skills as determined by an objective test, all give either more or less points to the profile. Some of the criteria are yes/no questions, such as already having a close relative in Canada who is either a permanent resident or citizen at the time of the application. Others are on a spectrum, such as age or language skill, which points for age gradually decreasing for older candidates.
There are many other nuances to the points system, such as modifiers based on having a spouse or common-law partner included on the application, but they will be expanded on in a future blog post. An experienced immigration lawyer is aware of all of them, and will advise you on the best and most plausible ways to maximize your points.
Profile creation and entry into the pool is purely automated, and no decisions are made at this point. The second stage, after an invitation is received, is when the process advances to the point where an actual application is being prepared for viewing by immigration officers. This is when a candidate gathers all of the background information they stated in their profile for the IRCC officers to view, including language test scores, work experience letters, police background checks, as well as requirements for every traveler to Canada, such as passports and medical exams.
Unlike with profile creation, whose main time sensitivity is the expiration of documents such as language tests or passports (expired documents are not accepted by the system), an ITA must be responded to with an application within 60 days. This means that applicants would be well advised to start gathering some of them even before receiving the invitation. Old work experience letters, police background checks, and detailed travel histories are often difficult to provide on short notice, but these are required for a complete application.
An applicant can also choose, in those 60 days, to decline the invitation, in which case their profile will re-enter the pool until either a new round of invitations, or its 1 year term in the pool expires.
How long does all this take however? How long does it take to create a profile; when do these draw happened, and how should you prepare for them? How long does it take to process the application once submitted?
Express Entry can be either a short or lengthy process, depending on prior preparation, but also on some factors outside of your control. The Canadian government decides on the schedule of draws and the speed of processing, but you can make sure your profile is waiting in the pool for as short a time as possible, and that the application is also as strong as possible in a number of different ways. This will be detailed in the second blog post of this series.
This blog details the many legal issues among Luka's practice areas, for a general audience. None of this information is a substitute for legal advice.