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Sep 8, 2017

Pathways to Canada for “Dreamers”

In June 2012, President Obama introduced the Deferred Action for Childhood Arrivals (DACA) program in order protect children who had been brought to the U.S. from a young age but have no legal immigration status.

DACA has strict requirements, including that it only applies to those who had been brought to the U.S. from a young age, not of their own accord. The premise is that such children deserve a degree of relief from suffering the consequences of their parents’ actions. DACA also stipulates that applicants must be free of any serious criminal record and have achieved a certain level of education or service in the military. In short, it applies to young, productive residents who are American by every measure except immigration status.

Estimates are that approximately 800,000 such “Dreamers” currently benefit from the program. However, DACA provides only temporary work permits and deferrals of deportation. The precarious nature of this status was fully exhibited this week by the Trump administration’s announcement that the program will be terminated, with a 6 month transition period.

Fortunately, current Dreamers who are now evaluating their options may be able to look to Canada for reprieve. There are a number of Canadian immigration avenues that may be open to high-skilled Dreamers looking to achieve permanent status. The following is just a brief outline of some of the most notable options:

Applications for Work Permits under NAFTA

A vast majority of Dreamers are Mexican nationals and as such legally entitled to benefit from immigration provisions contained under NAFTA. Specifically, NAFTA provides two possible streams by which they can be issued work permits.

First, professionals can qualify if their occupation is among a list of 60+ specifically designated professions under the agreement ranging from engineers to management consultants and have a job offer in Canada to work in that profession.

Second, executives, managers, or anyone with “specialized knowledge” who has been working for a U.S. company for a year can be transferred to the Canadian subsidiary or affiliate of their company.

Applications for Work Permits under the Global Skills Program

Launched recently on June 12, 2017, Canada’s new “Global Skills Strategy” aims to allow faster access to high skilled foreign talent to help Canadian companies grow and prosper. This two-year pilot offers two major streams:

Category A - for innovative, high-growth, high-potential firms, that have been referred to the Global Talent Stream by a Designated Partner, who need to hire unique and specialized talent. Unique and specialized talent has been defined as:

  • Advanced knowledge of the industry;
  • Advanced degree in an area of specialization of interest to the employer; AND/OR
  • Minimum of five years of experience in the field of specialized experience; AND
  • A highly paid position with a salary of usually $80,000 or more.

Category B - for employers seeking to hire foreign workers to fill positions in specific occupations found on the “Global Talent Occupations List.” The list is comprised of much-needed positions in the tech sector as follows:

  • Computer and information systems managers;
  • Computer engineers (except software engineers and designers);
  • Information systems analysts and consultants;
  • Database analysts and data administrators;
  • Software engineers and designers;
  • Computer programmers and interactive media developers;
  • Web designers and developers;
  • Electrical and electronics engineering technologists and technicians who earn a wage of at least $38.94;
  • Information systems testing technicians who earn a wage of at least $37.50;
  • Sub-set of 5241 Digital Media and Design [please note, additional criteria apply for this category].

For more information regarding the new Global Skills Program, please see our full article here.

Work permits issued under NAFTA, Global Skills, or otherwise, are often valid for 2-3 years and can be renewed. After working in Canada for over 1 year, applicants may also qualify to apply for Permanent Residence (tantamount to a Green Card in the U.S.). As such, these work permits provide applicants more than was ever offered under DACA. Namely, a pathway to permanent status and eventually citizenship.

Permanent Residence under Express Entry

Canada’s Express Entry program is an online points based system for selecting new immigrants. Candidates create an online profile and enter the Express Entry pool whereby they are ranked under the “Comprehensive Ranking System” (CRS). The CRS provides a total points score based on numerous factors including:

  • Age
  • Level of education
  • English and/or French language ability
  • Work experience
  • Having family members in Canada
  • Having a valid job offer in Canada
  • Any Canadian degrees, diplomas or certificates
  • Marital status (including spouses’ qualification)
  • Etc.

Periodically, draws are conducted and the candidates with the highest scores in the pool are invited to apply for permanent residence in Canada.

Given the average age and language ability of Dreamers, many with post-secondary degrees and some skilled work experience may very well qualify under this program.

Students

Students who gain acceptance into one of Canada’s many public universities or colleges, may qualify for a study permit allowing them to legally reside and study in Canada. Although they would be subject to international tuition rates, they are also allowed to legally work up to 20 hours a week, and full-time during summer breaks, to help defray the costs. Following graduation from a minimum 8 month full-time program, the former students would be entitled to post-graduate work permits allowing them to work in Canada for 1-3 years. During this time, the combination of their Canadian education and work experience may allow them to qualify to apply for Permanent Residence under various programs including Express Entry detailed above. 

Through these options, Dreamers may for the first time find an immigration system that is willing to embrace their potential. While the U.S. is their home, many may choose the certainty that Canada can provide over the looming prospect of deportation. In the end, what the U.S. risks losing, may lead to a boon for Canada and countries with more thoughtful immigration policy.

*Please be advised, the foregoing does not constitute legal advice. Any DACA recipient who leaves the United States faces a denial of re-entry absent special waiver.  It is highly advisable to schedule full consultation with our office in order to receive specific, current, and accurate legal advice with respect to each unique situation before taking any action. 

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