December 4, 2014 – The Government of Canada has released further details of its much anticipated Express Entry immigration system. Express Entry is an electronic immigration management system that aims to cut processing times by creating a pool of eligible economic immigrants who will be awarded points based on various factors. Eligible immigrants, instead of being processed on a “first-come, first-served” basis, will be ranked against each other, and employers will be able to access the pool in order to select candidates to fill job vacancies in Canada.
The system is set to launch on January 1, 2015. Participation in the pool will be mandatory for all economic immigrants under the Federal Skilled Worker, Federal Skilled Trades, and Canadian Experience Class programs and optional for economic immigrants under the Provincial Nominee Program.
The Points System
Applicants for permanent status in Canada will be ranked based on a point system that aims to measure certain key factors:
- 500 points: Core Human Capital Factors, including age, education, language and Canadian experience
- 100 points: Skill Transferability, including foreign qualifications, degrees and work experience
- 600 points: Positive Labour Market Impact Assessment or Provincial Nomination Certificate
Foreign nationals without a positive Labour Market Impact Assessment will be required to register with the Job Bank within 30 days in order to be matched with a prospective employer. Once matched with a prospective employer, applicants must obtain a positive Labour Market Impact Assessment and an invitation to apply. Applicants will then have 60 days to complete a full application for permanent residence online.
Under the previous system, eligibility to apply for Permanent Residency meant that all temporary foreign workers already in Canada could apply for bridging work permits in order to remain in Canada while their applications were processed. Under the new Express Entry system, candidates without positive Labour Market Impact Assessments are ranked against each other and eligible applicants will face significant uncertainty and a lack of transparency about when, if ever, they may be invited to apply. This may have the practical effect of forcing some temporary workers to leave their jobs and return to their country of origin as they wait for an invitation. The only means of mitigating the effect of this unpredictable system is to obtain a positive Labour Market Impact Assessment.
The Government of Canada believes that Express Entry will result in a better candidate pool of qualified economic immigrants well suited to adapt to life in Canada and that the management system will result in an expected processing time of six months or less.
Impact on Provincial Nominees and Treaty Work Permit Holders
Ministerial Instructions just released indicate that temporary workers already in Canada on temporary work permits pursuant to provincial nominee program certificates or Canada’s free trade agreements (e.g., NAFTA, Chile Free Trade Agreement) will not be eligible for participation in the Express Entry pool without first obtaining a positive Labour Market Impact Assessment.
The Labour Market Impact Assessment is a labour market test that is meant to ensure that employers first seek to hire Canadians and Permanent Residents before hiring temporary foreign workers.
Under Canada’s free trade agreements, temporary work permits are issued to qualified professionals in order to facilitate cross-border economic development and growth. The Ministerial Instructions, as released, appear to place these applicants at a disadvantage in favour of economic immigrants from countries with whom Canada does not have bi-lateral trade relationships. This, despite the fact that temporary workers already in Canada and working for Canadian employers have already demonstrated a high level of adaptability to life in Canada and constitute a ready-made pool of desirable economic immigrants. The practical effect of the Ministerial Instructions is that, in some cases, it may be preferable for a candidate to leave Canada, and their job, in order to improve their chances of being invited to apply for Permanent Residence from abroad rather than make an application from Canada.
Information for Employers
Employers are encouraged to review their labour force and identify any temporary foreign workers who may be adversely affected by this change in immigration system, including those in Canada under NAFTA visas, certain intra-company transferees and those working under Provincial Nominee Program Certificates. Employers of temporary foreign workers should prepare for possible disruptions to their labour force in the event that their foreign employees are unable to obtain bridging work permits while they participate in the Express Entry program.
Who May Not Apply for Express Entry
A number of categories of temporary foreign workers will require a positive Labour Market Impact Assessment in order to participate in the Express Entry program. The following applicants will face significant disadvantages when making their applications from within Canada:
- Treaty based intra-company transferees
- NAFTA work permit holders and other temporary work permit holders pursuant to Free Trade Agreements
- Holders of work permits based on Provincial Nominee Program (PNP) Certificates
In the absence of a positive Labour Market Impact Assessment, PNP certificate holders on work permits based on their nomination may only apply for Permanent Residency through a non-Express Entry category.
Employers are encouraged to contact Green and Spiegel LLP for further information and guidance on preparing for the launch of Express Entry.