Top-shelf workers, students left behind by new immigration rules: lawyers

Canada’s new permanent residence application system will discourage top-level professionals and other highly skilled workers from coming to this country unless changes are made soon, immigration lawyers warn.

The new Express Entry program, which came into effect on January 1, puts workers wishing to apply for permanent residency in Canada into one pool. They fill out an application and are awarded points based on various criteria, and those with the top scores are then invited to apply for permanent residency.

The problem with the new system, experts say, is that it fails to take into consideration foreign workers who are already in this country on temporary work permits and visas. And one of the criteria worth the most points in the system makes it difficult, if not impossible, for top executives and other high-skilled workers to fulfill.

Under the program, a labour market impact assessment (LMIA) is worth 600 of 1,200 available points. An employer must apply for an LMIA before hiring a foreign worker, to show that the foreign worker is needed to fill a job opening because a Canadian can’t be found to fill the post.

The other 600 points in the system are awarded based on an applicant’s personal characteristics, including age, language skills, education, work experience and marital status.

This means that anyone who has an LMIA starts at 600 points, and accrues more based on their personal characteristics. An applicant without an LMIA can only get a maximum of 600 points based on education, language, work and personal information.

Therefore, anyone who has an LMIA “will automatically trump anyone who doesn’t,” says immigration lawyer Chantal Desloges.

“The problem is that there are a lot of people that are working in Canada on work permits that don’t require an LMIA,” Desloges told CTVNews.ca in a telephone interview.

These include foreign students who are issued post-graduate work permits with the goal of retaining talented young people who were educated in Canada. According to Citizenship and Immigration Canada statistics, 120,000 study permits were issued to international students in 2014.

“But now under Express Entry, none of them have labour market impact assessments because they didn’t need them,” Desloges says. “And the chances of them being able to get one are almost none because how is the employer going to prove that they can’t find anyone in Canada to do this job that a new graduate is doing?”

A ‘ridiculous’ system

Others who are affected by the policy are workers who came to Canada under LMIA-exempt categories, including those with a NAFTA permit, a clergy visa, or others who are considered a significant benefit for Canada, says immigration lawyer Sergio Karas.

“So potentially you could have a PhD in electronic engineering from MIT and no LMIA and you only get 600 marks, which is ridiculous,” Karas told CTVNews.ca.

While some work permits are renewable, others are only in effect for a specific period of time.

“If you’re not invited to apply for permanent residence and your work permit runs out, most of them are not eligible to renew them,” Desloges said.

One worker on a post-graduate permit has started an online petition to call for changes to the system so foreigners graduating from Canadian schools have an advantage.

An anonymous petition at Change.org says that many students stayed in Canada, believing that they could eventually apply for permanent residency after working here for several years.

“We have been in Canada for 3 to 6 years, have settled down, adapted and assimilated with the Canadian society and culture,” the petition says. “Also, we already have full time jobs which we had to compete for. In fact, well-integrated and hard-working students bring many benefits to Canada.”

The petition argues that too few points are awarded for Canadian work experience. It calls on Citizenship and Immigration Canada to allow workers to extend their post-graduate work permits and award points for the work experience accrued by applicants in that category.

It also calls on the department to eliminate the LMIA requirement for those on post-graduate work permits, or at least make it easier for employers to apply for them.

Government response

Citizenship and Immigration Canada counters that, in fact, Express Entry does take into account the education and work experience that international students have acquired while in Canada, particularly from open work permits.

“The Comprehensive Ranking System used in Express Entry awards points to candidates in the pool based on objective criteria that are known to contribute to a newcomer’s economic success once in Canada,” Sonia Lesage, media relations advisor for Citizenship and Immigration Canada, said in an email to CTVNews.ca.

“This is favourable to those in Canada on a post-graduate work permit as they are already awarded significant benefit by the ranking system for their high education, Canadian work experience, strong official language skills; and, more often than not, youth.”

Meanwhile, the LMIA requirement ensures that Canadians have “first crack” at Canadian jobs, Lesage said.

‘Makes absolutely no sense’

The main problem with the new system as Karas sees it, is that top-tier workers who have been in this country for a few years, are making good money and paying taxes, are being put into the same pool as someone who just graduated from university or who is still abroad hoping to come to Canada to work at a trade.

“In the same program they are putting the CEO of the company who makes $300,000 a year and pays for the kids’ private schools here and he’s responsible for 1,000 people on the same boat as the guy who makes $50,000 and he just graduated from university and he’s got one year of experience with a mediocre job,” Karas said.

“It makes absolutely no sense to me.”

Karas says that CIC should relax its rules for highly skilled workers, and make it more difficult for workers outside of Canada who do not have Canadian experience.

The process by which an employer obtains an LMIA should also be overhauled, he says. Currently, the process requires:

*That a job be posted in three different sources for a minimum of 30 days. Those advertisements must continue until the department issues a decision on the application, which could ratchet up the company’s costs.

*That an employer reach out to disadvantaged groups and minorities, before interviewing suitable candidates.

*That an employer provides details of a plan to transition to filling the job with a Canadian within a particular number of years. The company can then be audited for up to six years to ensure it is following that plan.

The department, however, says that as it stands, the Express Entry program “identifies and invites only the top-ranked candidates from the pool.”

“In other words, the Express Entry system ensures that only the candidates who are most likely to succeed -- and not simply the first to submit their application -- are able to apply to immigrate to Canada,” Lesage said.

Meanwhile, Citizenship and Immigration selected its first group of candidates from the Express Entry pool last month. The department pulled 779 candidates, who were given 60 days to complete their application for permanent residency.

According to Desloges, everyone who was selected had an LMIA.