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Dramatic changes to Canada's Immigration Rules

Canadian Immigration levels, the mix of immigrants we bring to our country and how we deal with applications for immigration is in for a dramatic change. The regulations, published in the official gazette on December 15, are expected to dramatically reduce skilled and business class immigration, experts fear.

The regulations, marking the first major overhaul of immigration regulations, do include some remarkable steps to make our system more streamlined, transparent and logical. A summary of the regulations and their impact follows.

The new regulations do well in abolishing the silly "occupations list" under which applicants were selected based upon their occupations. However, it appears that many applicants would find it difficult to qualify as skilled immigrants unless they could arrange a job offer in Canada. The specific criteria for net worth and business management requirements for business class immigrants would also make it difficult for many small and medium sized businessmen to qualify. It seems that many intending immigrants would need to go shopping to the provinces to see if they qualified as provincial nominees before they apply for immigration.

One very welcome change is in the clear residence requirements that have been set. To retain permanent residence, immigrants must remain physically in Canada for at least 730 days in the previous five years. However, certain absences, such as those in the employment of a Canadian employer qualify as period in Canada. Click read more for a summary of changes.

SUMMARY OF CHANGES

Family class sponsorships

· Age of dependants

· Common-law partners

· Adoptions

· Guardianships

· Age of sponsors

In-Canada landing class

Fees

Economic Classes

· Skilled workers

· Investors and entrepreneurs

· Self-employed persons

· In-Canada landing class for temporary foreign workers

· Spousal work authorizations

Rights and Obligations of Permanent and Temporary Residents

· Physical presence for permanent residents

· Status Document

· Travel documents

Temporary workers and agreements with employers

Family class sponsorships

Age of dependants

· Raise the age for dependent children from under 19 to under 22 years;

· Include unmarried children under 22 years of age, or over 22 if they are full-time students or mentally or physically disabled and dependent on their parents.

Common-law partners

· Define common-law partner to include a person who is cohabiting in a conjugal relationship with another person, having so cohabited for a period of at least one year;

· Provide that an individual who has been in a conjugal relationship with a person for at least one year, but has been unable to cohabit with the person due to exceptional reasons such as persecution or any form of penal control, may be considered a common-law partner of the person;

· Exclude relationships of convenience entered into for immigration purposes.

Adoptions

· Ensure the protection of children in accordance with internationally accepted standards and take into consideration provincial/territorial jurisdiction in matters involving adoptions and child welfare;

· Expand the family class to include "simple adoptions" (adoptions which do not create a permanent and genuine parent-child relationship in law and do not sever pre-existing family ties, almost always with the biological parents);

· Require that, in the case of simple adoptions:

o full adoption not be possible in the country of origin;

o the province of destination agree to convert the simple adoption to full adoption; and

o genuine consent of the biological parents be obtained if the conversion is to take place in Canada.

· Set aside the requirement that the child to be adopted in Canada be orphaned or abandoned;

· Eliminate the financial requirement to sponsor when the adoption will be finalized in Canada;

· Require a home study approved by provincial or territorial authorities for any sponsorship application;

· Require that visa officers be satisfied that all consents to the adoption have been obtained without pressure and not for personal gain, and that the adoption comply with the laws of the originating country.

Guardianships

· Expand the family class to include guardianships;

· Require that:

o the child be orphaned of both parents or be born of unknown parents;

o the child be less than 18 years old and never married;

o the child reside in a country that does not allow full adoptions in its legislation;

o consent be obtained from the competent foreign authorities and the province or territory of destination;

o the child be guaranteed the same social benefits as full adoptees in the province of destination; and

o the child be sponsored by a sponsor who meets all conditions of sponsorship, including financial ability to support as this is not a legal filiation.

Age of sponsors

· Lower the age at which a Canadian or permanent resident may sponsor from 19 to 18 years.

In-Canada landing class

· Create an in-Canada landing class for spouses, common-law partners and their dependent children;

· Require:

o an approved undertaking;

o genuine marriage or relationship;

o legal status in Canada that has not been obtained through misrepresentation;

o possession of a valid passport or travel document; and

o satisfactory background checks and medical results.

Fees

· Allow sponsors who do not meet sponsorship eligibility requirements to withdraw their sponsored relative's application for permanent residence and to recover part of the current cost recovery fees paid for the processing of the relative's application (for example, $450 out of the $500 fee);

· Increase the age at which adult fees apply with respect to the Right of Landing Fee (ROLF) from 19 years and over to 22 years and over.

Economic Classes

Skilled workers

· Introduce an improved, objective point system which was developed following extensive research and consultation with key immigration stakeholders and provincial governments;

· Select the skilled immigrants Canada needs based on their flexible skills rather than intended occupations;

· Emphasize experience in any skilled occupation rather than designating particular occupations;

· Highlight the importance of selecting skilled tradespersons and respond to concerns about over-emphasis on advanced education;

· Recognize the importance of informal job offers from Canadian employers, including family and small businesses, as an element of adaptability (however, an applicant who receives 10 points for a validated job offer will not also receive points for an informal job offer);

· Preserve the ability of an immigration officer to exercise discretion when they believe that the total points awarded do not properly reflect an applicant's potential;

· Provide the Minister with the authority to set and amend the pass mark;

· Specify funds required for initial establishment while recognizing that supporting documentary evidence may be provided through various means;

· Provide authority for a negative occupations list to exclude certain occupations for which a public policy decision has been made to protect the Canadian labour market.

Investors and entrepreneurs

· Establish objective and common standards for the selection of business immigrants;

· Use previous business experience and net-worth as the threshold for selection, using common elements in the investor and entrepreneur definitions to assess business experience (entrepreneurs will need to demonstrate experience in ownership or management of a business);

· Maintain a selection grid for business immigrants to provide capability to fine tune selection in light of measured performance of economic activity by business immigrants selected under new definitions;

· Drop the current requirement that net worth be created by the investor's own endeavors;

· Allow for the inclusion of spousal assets when assessing net worth;

· Define Investor to mean an immigrant who:

a. has business experience;

b. has a net worth of at least $800,000;

c. indicates to the Minister, in writing, and establishes to the satisfaction of a visa officer, that they have made an investment in Canada.

· Define Entrepreneur to mean an immigrant who:

a. has business experience;

b. has a net worth of at least $300,000.

Self-employed persons

· Redefine "self-employed" to include only immigrants who can make an artistic or cultural contribution, farmers and world-class athletes;

· Assess self-employed persons under the economic class regulations.

In-Canada landing class for temporary foreign workers

· Permit temporary workers, including certain students, who qualify as skilled workers and who have on-going validated job offers to apply and obtain permanent residence from within Canada;

· Establish conditions to this class to ensure that international student sponsorship programs and development assistance objectives are not compromised.

Spousal work authorizations

· Make spouses of temporary skilled workers eligible for employment authorizations (with the exception of seasonal workers and diplomats).

Rights and Obligations of Permanent
and Temporary Residents

Section 32 of Bill C-11 provides regulation-making authority respecting the rights and obligations of permanent and temporary residents (sections 27 - 31).

Physical presence for permanent residents

Permanent residents must be present in Canada for 730 days in the last five years. However , the regulations specify situations in which time spent away from Canada can be deemed to be time in Canada for the purpose of retention of permanent residence;

· When an individual is outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province;or

· When an individual is an accompanying spouse, common-law partner or child of a permanent resident who is outside Canada and is employed on a full-time basis by a Canadian business or in the publicservice of Canada or of a province.

"Canadian business" for the purpose of residency is defined as either:

1. a corporation, partnership or proprietorship resident in Canada for the purposes of the Canadian Income Tax Act and whose central control and management is in Canada; or

2. a business resident in Canada for the purposes of the Canadian Income Tax Act and whose central control and management is in Canada.

Status Document

· Outline the circumstances in which documents indicating status for protected persons may be issued or renewed as well as the procedures concerning applications for such documents;

· Outline the circumstances in which documents indicating status for permanent residents must be issued or renewed as well as the procedures concerning applications for such documents;

· Develop a permanent resident card as a document which will contain the permanent resident's name, photo, signature, date of birth, country of birth, country of citizenship, sex, eye colour, height, date of entry in Canada, place of landing, and immigrant category;

· Oblige transportation companies to request this card or a facilitation visa prior to boarding passengers coming from countries that are not visa exempted, who claim to reside in Canada as permanent residents.

Travel documents

· Provide for the issuance of a travel document in cases of lost, stolen, or expired permanent resident cards abroad to permanent residents whose status is not in dispute;

· Provide travel documents for permanent residents without a valid permanent resident card if they have been away from Canada for less than one year and are appealing a loss of residency determination.

Temporary workers and agreements with employers

· Introduce a program for temporary workers which is more service-oriented and less control-focused;

· Introduce assessment tools which measure the "net economic benefit" of issuing a work permit under a redesigned temporary worker program, for example, balancing the positive impacts of bringing foreign temporary workers against the potential negative impacts such as the possibility of displacement of Canadians job-seekers or downward pressure on Canadian wages and working conditions;

· Provide for the drafting of employer agreements to address situations where an employer requires a substantial number of foreign workers;

· Provide that written agreements between the employer and Human Resources Development Canada (HRDC) will set out the jobs validated and the employer's undertakings related to training and career development for local staff and Canadian job seekers;

· Stipulate that sectoral agreements may be used to address situations where a number of employers in an industrial sector face the same skills shortage due to growth in that sector, demographic factors or the introduction of new technology;

· Provide that an occupations list will be used where there is a shortage in a certain occupation that cuts across sectors and firms as well as geographic regions;

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