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Jan 3, 2017

The Dynamic Tides of Canadian Immigration Law: 2016 Year-End Review

Syrian refugees were the hit story of Canadian immigration in 2016. Make no mistake, refugees made up a large portion of the permanent resident admissions to Canada last year. And over the next five years, the Government has proposed to continue to support refugee applicants by providing $245 million for the identification, overseas processing, transportation, and resettlement of an additional 10,000 Syrian refugees beyond the original 25,000 already resettled.

While our country’s response to the humanitarian crisis in Syria may be the most talked about issue in Canadian immigration law right now, understandably, a host of new, dynamic changes emerged in 2016 that are no less significant to foreign nationals wanting to enter Canada on a permanent or temporary basis.  The major updates from 2016 are canvassed below.

Permanent Residence

Express entry is a comprehensive scoring system used to rank prospective immigrants to Canada. Candidates are awarded up to 1,200 points based on a variety of factors meant to assess their ability to succeed in Canada, including age, language skill, education, and work experience. Prior to November 19, 2016, an additional 600 points were awarded for holding a valid job offer supported by a positive Labour Market Impact Assessment (LMIA).

The new changes implemented on November 19, 2016, have reduced the points awarded for holding a LMIA with an offer of employment, as well as allocated additional points for graduates of some post-secondary programs in Canada. Moreover, the definition of Offer of Employment was broadened to include certain workers on LMIA-exempt employer specific work permits who have accumulated at least one year of full-time experience with their employer.

Even before changes to Express Entry occurred on November 19, 2016, it was difficult to predict the threshold number of points a candidate required for Immigration, Refugees and Citizenship (IRCC) to invite them to apply for permanent residence. Before the changes occurred in November, the lowest qualifying score in 2016 for a candidate to be invited to apply for permanent residence ranged between 461 and 538. The number of candidates invited to apply fluctuated 2,080 to 733 in any given draw.

The most recent express entry draw was abnormally high. After the changes were implemented, 2,878 candidates were invited to apply for permanent residence. This is the largest number of invitations ever pulled since the Express Entry system began in January 2015. The lowest qualifying score was 475, although Green and Spiegel anticipates the threshold number of points to continue to fluctuate in the upcoming months.

With respect to family class immigration, the parent and grandparent sponsorship program reopened on January 4, 2016, and reached its annual quota of 5,000 applications within a few short days. IRCC has advised that this program will reopen on January 3, 2017, with an increased quota of 10,000 applications. On December 14, 2016, the first-come-first-served selection process has also been replaced by a lottery system in 2017. According to IRCC Minister McCallum, processing times for all applications, inside and outside of Canada, will be twelve months for sponsoring spouses, partners, and dependent children.

Citizenship

Minister McCallum also introduced four significant changes to the Citizenship Act in 2016.  The four key changes essentially make good on the Liberal’s campaign promise to repeal the Conservative changes made to the Citizenship Act in June 2015. The new Citizenship Act is likely to come into effect in the next several months. The key points of the Bill: an Act to Amend the Citizenship Act are:

  1. Repealing the provisions that allow citizenship to be revoked from dual citizens who engage in certain acts against the national interest.
  1. Reducing the time permanent residents must be physically present in Canada before qualifying for citizenship.  Permanent residents will need to be in Canada three of five years instead of four of six years.
  1. The time spent in Canada, as a temporary resident, prior to becoming a permanent resident, will be included in the three-year physical presence calculation used to qualify for citizenship.  Each day, within the five-year period that a person is authorized to be in Canada as a temporary resident, before becoming a permanent resident, can be counted as a half-day toward meeting the physical presence requirement for citizenship to a maximum of one year.
  1. The age range to meet the language requirement and pass a knowledge test to qualify for citizenship will be changed to 18 to 54 years instead of 14 to 64 years of age.

Temporary Residence

The requirement for an electronic travel authorization (eTA) is perhaps the widest reaching of the Government’s changes in 2016 for foreign nationals temporarily entering Canada. As of November 10, 2016, all foreign nationals from visa-exempt countries, except U.S. citizens, are required to obtain an eTA prior to travelling to Canada by air. While U.S. citizens are exempt from this requirement, U.S. green card holders are not. Moreover, some work permit and study permit holders already in Canada may need to apply for an eTA if they intend to leave Canada and return by air.

Although as of December 1, 2016, Mexican nationals are no longer required to obtain a visa before visiting Canada, they are still required to obtain an eTA prior to entry.

The Government implemented two other notable changes in 2016 under the International Mobility Program. First, as of early 2016, foreign nationals in the television and film industry may have an easier time obtaining work permits without an LMIA to temporarily work in Canada if they can prove their position is essential to a television or film production.

The second update, as of June 2016, was the Government’s launching of the Mobilité Francophone work permit stream. The stream is intended to attract skilled francophone workers and encourage them to settle in francophone minority communities outside Quebec. Employers that provide job offers to foreign francophone workers in managerial, professional, and technical/skilled trades occupations to work in Francophone minority communities outside of Quebec will not be required to apply for a LMIA.

Lastly, 2016 brought welcome changes for international students in Canada that completed the majority of their course work online. Green and Spiegel’s Ravi Jain’s strong advocacy skills culminated in the IRCC releasing an operational bulletin on October 25, 2016, that dramatically affects international students who were denied post-graduation work permits for taking online courses. Such students can now reapply to restore their temporary resident status and fees will be waived. IRCC also clarified that if more than half of the course load was in-class, an international student is eligible for a post-graduation work permit.

Upcoming Changes

Looking ahead to 2017, the Government will focus its efforts toward family class and economic class immigration. The number of admissions for both of these classes is anticipated to rise in comparison to numbers posted in 2016.

Alongside higher numbers, substantive changes to economic and family class immigration are also anticipated in 2017. For example, the Government plans to repeal the conditional permanent residence regulatory provision, which currently requires spouses or common law partners to cohabit with their sponsor for two years or else lose their permanent residence status. This change is likely to occur in Spring 2017. In addition, the Government also has plans in Fall 2017 to amend the definition of “dependent child” in the Immigration and Refugee Protection Act from “less than 19 years of age” to “less than 22 years of age”. The change is meant to enhance family unity and reunification by enabling Canadians and permanent residents to bring their young adult children up to 21 years of age.

With respect to temporary workers, a new stream will emerge in 2017 called the Global Skills Strategy stream. The Government is hoping this stream will encourage Canadian businesses to access global talent by offering expedited processing times for work permit and visa applications. A new work permit exemption is also expected within this stream, for brief academic stays or where durations of stay are less than 30 days per year. For other changes to the Temporary Foreign Worker Program, and changes scheduled for 2017, please see Green and Spiegel’s previous excerpt here.

The Government’s proposed changes for the upcoming weeks and months are a strong indication that 2017 will see an increasing number of changes after an already dynamic 2016. Please contact the team at Green and Spiegel to ensure you are updated.

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