Employers Take Note – New Rules for Foreign Workers

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Amendments to Canada’s Immigration and Refugee Protection Regulations to strengthen protections for temporary foreign workers during their period of employment in Canada are scheduled to come into force on September 26, 2022. Specifically, these amendments apply to those employers seeking employer specific work permits for foreign nationals via the Temporary Foreign Worker Program (“TFWP”), which relates to LMIA-based work permits, or the International Mobility Program (“IMP”) which relates to LMIA-exempt work permits.

Summarized below are highlights of the upcoming changes:

  • Employers will be required to provide a signed copy of the employment agreement to the foreign worker, which is drafted in the foreign national’s choice of either French or English, that is signed and dated by both the worker and the employer and that includes the same details of the occupation, wages and working conditions that will be provided to IRCC in connection with the work permit application. For IMP based work permit applications, this must be done before the employer provides the details of the occupation, wages and working conditions to IRCC via it’s Employer Portal.
  • Employers will be required to provide temporary foreign workers with information about their rights in Canada on or before their first day of work as well as making this information easily accessible to the foreign worker in the workplace throughout their period of employment without additional cost to the foreign worker and without them needing to go through the employer to obtain it. The information can be provided in a physical or virtual location such as a break room wall or the company website. Information on workers rights can be found at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/know-your-rights-worker-international-mobility-program.html It is recommended that employers consider providing this information to the foreign worker when providing them with the employment agreement.
  • Employers must provide a workplace that is free of abuse, including reprisal. The definition of abuse in the regulations will be amended to encompass reprisal by or on behalf of an employer against a foreign worker because the foreign worker reported employer non-compliance or cooperated with an employer compliance inspection. Reprisal includes a disciplinary measure, a demotion, a dismissal, or any threat to take any such measures.
  • Employers are prohibited from charging or recovering, directly or indirectly, from the foreign worker, any fees related to recruitment either before or after the recruitment process. Employers must demonstrate that they have made best efforts to ensure any person acting on their behalf has not and will not charge or recover such fees by verifying this with the foreign worker
  • Employers must make reasonable efforts to provide access to health care services when the foreign worker is injured or becomes ill at the workplace.
  • Employers of LMIA based work permit holders will be required to obtain and pay for private health insurance that covers emergency medical care for their workers during any applicable provincial waiting period for eligibility.
  • IRCC will have expanded authority to receive information from third party institutions, and in the case of the IMP, to collect personal information from employers and employees.
  • An employer found to be noncompliant with one of the provisions will have a reduced period in which they must respond to the preliminary findings outlined by IRCC.
    • This provision is intended to encourage employers to resolve their noncompliant behavior in a timely manner, so they may avoid the possible penalties imposed by IRCC.
  • Employment and Social Development Canada (“ESDC”) will be empowered to suspend LMIA processing requests for the employer found to be noncompliant with the program’s new requirements.

The recent pandemic has highlighted the precarious position of many individuals in the labour force, and especially that of Canada’s foreign workers who may be more vulnerable to potential exploitation due to their temporary status and their limited access to information on their workplace protections and rights under applicable federal, provincial, and territorial legislation. The amendments to the Immigration and Refugee Protection Regulations are intended to address gaps in worker protection, improve worker and employer awareness and strengthen program integrity.

Should employers have any questions regarding these changes, or any other immigration needs we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; mukherjee@cilf.ca; garciafialdini@cilf.ca

Foreign Students Return to School – In Person or Online?

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It’s time to start thinking about back to school for many foreign students. Throughout the pandemic special measures were put in place to permit foreign students to study online remotely while maintaining their eligibility for a post graduate work permit (PGWP).

Immigration, Refugees and Citizenship Canada (IRCC) is extending a transition period to international students applying for study permits who are affected by delays and backlogs. The IRCC has recognized that some students’ applications may not be processed in time to begin their in-person studies for the Fall 2022 semester.

International students studying online overseas or those that submit a study permit application by August 31, 2022, will be permitted to complete their entire program online without impacting their eligibility for a PGWP.

Foreign students that opt for online studies or are forced to study online because their study permit is not approved in time for the school year, need to beware that there could still be some consequences. Specifically, there are temporary distance learning measures affecting students starting programs from September 1, 2022, to August 31, 2023. These students will be subject to the following:

  • Beginning Sept 1, 2023, all remote study completed abroad will subtract from the length of a PGWP regardless of when studies were begun, and
  • A maximum of 50% of credits earned may be completed outside of Canada to stay eligible for a PGWP.

Therefore, students affected by delays will not be penalized for completing their course remotely while they wait for their applications to be approved.

As the world transitions to life after Covid-19, the above pre-pandemic study requirements will be reinstated. Online remote study was offered in response to the Covid-19 pandemic, lenience was extended to students on the path to permanent residence. During this time, students’ eligibility for a PGWP would not be affected by completing 100% of their program online and outside of Canada. This policy appears to strike a balance of fairness, but some may argue that foreign students paying significant tuition should not be penalized at all for IRCC’s backlog.

If you would like to meet with one of our Canadian immigration law professionals to discuss post-graduation work permits, or any other immigration needs we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca

Open Work Permits for Certain Current and Former Post Graduate Work Permit Holders and TR to Pathway Applicants

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On August 2, 2022, IRCC announced it would be expanding work permit opportunities for certain former or current post graduate work permit holders, as well as Temporary Resident to Permanent Resident (“TR to PR”) Pathway applicants. Beginning on August 8, 2022, individuals whose post graduate work permit expired on or after September 20, 2021, or will expire by December 31, 2022, will qualify to apply for an eighteen-month work permit by either extending their status or applying anew. Furthermore, IRCC will provide the opportunity for both groups to work in Canada while their application is being processed.

During the Covid-19 pandemic and in light of the resulting restrictions, many former international students found it extremely difficult to secure suitable employment in Canada before their post graduate work permits expired. They were therefore unable to gain the necessary Canadian work experience to qualify for permanent residence under Express Entry (Canadian Experience Class). IRCC has emphasized its commitment to easing the current labour shortage by allowing skilled foreign nationals to join the labour force. The new policy is intended to facilitate this goal and provide graduates with a fair opportunity to meet the Canadian Experience Class’s requirements. The transition from a post graduate work permit to permanent residence status is a commonly utilized pipeline, with 88,000 graduates gaining permanent residence in this fashion in 2021. Under this system, individuals who have recently graduated apply for a post graduate work permit in order to gain qualifying work experience so they become eligible for permanent residence under the Express Entry (Canadian Experience Class).

The date on which the international graduate’s current work permit expires will be key to the manner in which the measures will affect them. Some applicants will be required to formally apply for the work permit extension online whereas others, whose work permits expire between October 2, 2022 and December 31, 2022, will receive an email from IRCC which may necessitate some action on their part if their mailing address or passport information needs to be updated. Provided that they can comply with IRCC’s requirements, they will subsequently receive their extended work permit in the mail between October and November. Individuals with passports expiring before the 18 month extension date (April 2, 2024) will be required to submit an application online and will only receive an extension to the expiry date of their passport. This is a one-time only work permit which cannot be extended so to maximize the benefit of same, it is strongly recommended that applicants whose passports are nearing expiry try to renew their passports before applying. Qualifying individuals residing in Canada whose temporary status has expired must apply online to restore their status at the same time as applying for their work permit. Under these special measures, applicants whose status expired more than 90 days ago will be eligible to apply for restoration of status. Starting August 8, 2022, qualified international graduates will receive an email from IRCC indicating that they may continue to work in the interim while their renewal application is underway; however, this privilege will expire on May 31, 2023. Furthermore, IRCC has emphasized that all applicants must apply for this work permit online on or before December 31, 2022 and will not be allowed to do so at a port of entry. The open work permit fee of $100 will not apply to this work permit. Applicants are only required to pay the work permit processing fee of $155.

IRCC has additionally announced that temporary residents with pending permanent residence applications under the TR to PR Pathway may receive an email informing them that they qualify for an open work permit valid to December 31, 2024, subject to passport validity. This provision is intended to allow such temporary residents to retain valid temporary status in Canada while they wait for their permanent residence application to be finalized. The previous measure which existed in this regard permitted the issuance of a work permit valid to December 31, 2022.

If you would like to meet with one of our Canadian immigration law professionals to discuss post-graduation work permits, or any other immigration needs we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca

What is a NEXUS Card and Why You Need One

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After finally arriving in Canada or the United States, have you ever waited hours in line at the port of entry just to cross the border? If you are tired of this, the solution may be the Nexus card— designed for the low-risk, frequent traveler seeking expedited border crossing.

Membership in the NEXUS program can significantly reduce wait times by granting privileges for 5 years that regular travelers do not have: dedicated processing lanes at land border crossings including designated preclearance security check lanes, access to NEXUS kiosks when entering Canada, access to the U.S Global Entry kiosk, the ability to call a marine telephone reporting center to report a marine entry in Canada or the U.S.

For almost all travel between Canada and the U.S, citizens of the two countries may travel without a passport and just a Nexus card. However, for travel by air from Canada to the U.S, travelling with just the Nexus card is only accepted at the 8 major Canadian airports (YYZ, YVR, YYC, YUL, YEG, YWG, YOW, YHZ) with a U.S preclearance area.

So, who is eligible to apply? What are the prerequisites?

  • Canadian and American citizens, and Mexican citizens who are members of the Viajero Confiable (Trusted Traveler) program
  • Permanent Residents of Canada and the U.S are eligible for application after residing in their respective country for at least 3 years
  • Those admissible to Canada or the U.S under immigration laws
  • Those who can pass risk assessments by both countries- those convicted of a serious criminal offence in any country without pardon may be disqualified

Permanent Residents exempt from the 3-year rule are individuals in the Canadian or American armed forces serving in a foreign country and their family members, or individuals serving at a Canadian or American diplomatic mission or consular post in a foreign country and their family members.

Applicants will require proof of birth, identification, citizenship or residency documents, and a $50 USD processing fee. Children under 18 are free.

Upon conditional approval, individuals will be contacted to schedule an interview at a NEXUS Enrolment Center, where they will be interviewed by a Canadian Border Services Agent and/or a U.S Customs and Border Protection officer. They will verify the accuracy of the information on the application, check identity and review original documents, and take fingerprints.

Anyone that has been arrested, charged or convicted of an offence in the past, should seek legal advice before attempting to enroll in NEXUS. Similarly, if you have had a customs violation this could disqualify you.  Finally, there are also immigration implications to enrolment and individuals that travel on business or for work should consult an immigration professional before proceeding.

If accepted into NEXUS, the officer will take photos of the new member’s irises for identification with the Canadian self-serve kiosks, a headshot for the Nexus card, and explain the terms and conditions.

Unfortunately, as of July 8, 2022, Canadian NEXUS Enrolment centers remain closed, however, interviews at U.S NEXUS Enrolment centers have resumed, so there is promise that others will soon be able to enroll and take advantage of this program.  All Canadian applicants are advised to schedule their appointment at the nearest U.S Enrolment center.

https://www.cbp.gov/travel/trusted-traveler-programs/nexus/enrollment-centers/canada

If you would like to meet with one of our Canadian immigration law professionals to discuss the NEXUS process, or any other immigration needs we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca

On Your Mark Get Set – All Express Entry Program Draws Set to Resume July 6

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The Canadian Minister of Immigration, the Honourable Sean Fraser, announced on June 21, 2022, that the Canadian government would be resuming Express Entry invitations for all program categories. The Express Entry program was initiated in 2015 and provides a platform for foreign nationals to apply for permanent residence in Canada. There are three applicant categories included in the program. The Federal Skilled Worker (FSW) category involves individuals with foreign work experience who have no connection to the country. The Canadian Experience Class (CEC) contains foreign nationals who have recently worked in Canada and wish to reside there permanently. Finally, the Federally Skilled Trades (FST) group is similar to the FSW category, however it is made up of tradespeople.

The candidates in each of the three programs upload their profile onto the Immigration Refugees and Citizenship Canada website where they are rated based on a variety of factors including but not limited to work history, education, personal background, and spousal status. This score is known as a “CRS” score or “Comprehensive Ranking System” score. Individuals with a high CRS score are regularly invited to apply for permeant residence by the IRCC through a process called “draws” that historically occur approximately once every two weeks in the last seven years.

During the Covid-19 Pandemic, the IRCC paused the FSW programs in December of 2020 due to the rise in global travel restrictions. A year after this was implemented IRCC was facing an increasingly large backlog of immigration applications, primarily due an unprecedented draw in February 2021 where the CRS cut-off was far lower than any previous draw, and was designed to increase IRCC’s inventory so IRCC could meet immigration targets they had failed to meet in 2020 due to the pandemic.  A new Temporary Pathway to Permanent Resident Program introduced in May 2021 also significantly increased IRCC’s inventory. To alleviate this backlog, the Minister decided to pause CEC draws to allow IRCC resources to more effectively process pending permanent resident applications.

Following the pause on draws, any individuals whose applications were rejected could no longer easily reapply, leaving them in a precarious spot of having to renew their temporary status while awaiting another chance at an invitation to apply. Furthermore, many foreign workers who have become eligible to apply since last fall and were reasonable expecting an invitation to apply for permanent residence, were left sitting in the pool of potential candidates. These individuals had been counting on extending their status as foreign workers by applying for a bridging open work permit, which normally they would have become eligible for after applying for permanent residence in the Express Entry program. A great number of these individuals did not otherwise qualify for a work permit renewal and may have had their status in Canada expire, with no way to legally remain in Canada. Many of whom were foreign students that held post graduate work permits.

To address some of the hardship created by the pause in draws, the Minister announced that the IRCC would be implementing a post graduate work permit extension for international student graduates with work permits that expire between September 20, 2021, and December 2022 (over 95,000). Postgraduates were heavily impacted by the pandemic and the Express Entry pauses, both of which made extending their status difficult.  These individuals will qualify for an open work permit that will be valid for a period of eighteen months to allow them to gain the necessary work experience to facilitate their qualification for permanent residence and/or await an invitation to apply.

The renewal of the bi-weekly invitation process will be a boon to those who were impacted by the pandemic measures as well as to prospective applicants for permanent residence. Now that the Express Entry pool is reopening it is important that prospective applicants consult with an immigration lawyer to maximise their CRS points to be as competitive as possible. Furthermore, applicants should be conscious of the fact that their language test results may have expired since the entry pool was open in 2020, as the tests only remain valid for two years. An immigration lawyer can also ensure a candidate has sufficient evidence of past work experience to mitigate against a possible refusal.

If you would like to meet with one of our Canadian immigration law professionals to discuss the Express Entry process, or any other immigration needs we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca; trahan@cilf.ca

United States Ending Covid-19 Testing Requirements For International Travelers

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On Friday June 10th, an official at the Center For Disease Control and Prevention (CDC) announced that they would be lifting the Covid-19 related requirements that are currently in place on international travelers coming into the U.S. The order was initiated on January 26, 2021, and requires international travelers to test negative on a Covid-19 viral (rapid) test, a maximum of 24 hours before flying. According to CNN who first reported the change in policy, restrictions are set to expire at 12:00 am on Sunday, June 12, 2022.

Covid requirements continue to remain in place in Canada however. These include the mandatory use of the “ArriveCAN” app in order to provide proof of full vaccination (two vaccines) within 72 hours before arriving to Canada. Failing to do so may result in a fine of $5,000 dollars and the requirement to quarantine. Furthermore, international travelers may be randomly selected to take an arrival test, even if they are fully vaccinated. With huge delays at airports in Canada, especially at Toronto Pearson, there is mounting pressure on the Canadian Government to drop these remaining restrictions before school is out for the summer and the busiest travel season commences.

If you are unclear of what travel restrictions are still in place, contact a professional at CILF.  Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca; trahan@cilf.ca

Passport Renewal Relief: In Time For The First Long Weekend Of The Summer

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In the two months from March 1 to April 30, 2021, Service Canada says it issued 363,000 passports. One year later, as COVID travel measures started to subside, in the same time period, the number of issued passports spiked to 1,273,000. This would certainly explain the extremely long waiting times experienced by applicants. Recently, Service Canada announced that they received about 500,000 passport applications. Currently, they are prioritizing applicants who have immediate travel plans. They have plans to combat the waiting times, however, as per May 17 announcement.

One of the major causes of the extreme service delays was the reduced capacity mandated by the requirement to limit the number of clients and staff to protect the heath and safety during the pandemic. On May 17, Service Canada announced the reopening of all passport service counters across the country with capacity back to pre-pandemic levels. There will not only be more functional Service Canada locations, but also a 40% increase in capacity at service counters, as more employees return in person to their posts. An additional 600 new employees have been hired to support the processing of passport applications.

Also, new workload management and processing technology is being implemented to facilitate the effort. “Eservices.canada.ca/reservation” is an online appointment booking tool that can be accessed at all times from a personal computer, tablet, or cellphone. The tool also helps applicants find the right location to submit their applications. Additionally, Service Canada simplified the renewal process that allows applicants of an expired passport (including those that have been lost, damaged, or stolen), if it was issued in the last 15 years, to apply without a guarantor or original documents such as proof of citizenship or photo identification. All they need is two photos, two references, a completed form, and applicable fees.

On the bright side, those who have managed to brave the long waiting times to submit their application can expect to receive their brand-new passport in less than 10 business days. Those who are travelling within the next 25 days or sooner should consult the Service Canada website to find out how they could use the urgent pick-up service that may be available to them.

If you would like to meet with one of our Canadian immigration law professionals to discuss Canadian Citizenship or any other immigration needs we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca; trahan@cilf.ca

Young and eligible and looking for opportunities in Canada? IEC may be the right match for you

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Canada’s Minister of Immigration, the honourable Sean Fraser, recently announced facilitative measures to ease the matchmaking between Canadian employers who are racing to fill a large number of vacancies in certain critical sectors, and many young, talented, and eligible foreign candidates who require authorization to live and work in Canada. We have published a summary of the recently announced measures here (https://www.cilf.ca/2022/04/22/reopening/)

Though there are many reasonable frustrations related both to setbacks caused by extreme and unexpected events such as COVID and conflicts in Afghanistan and Ukraine, as well as a struggle for IRCC to modernize and adapt to enable processing to keep up with demand, we acknowledge that the Federal Government is signalling the will to listen and adapt to the economic realities of our immigration landscape.

As we regularly receive many inquiries from business regarding young candidates they wish to hire for positions in Canada, we think that the International Experience Class (IEC) program may offer a unique solution for employers to confirm talent and provide the individual with necessary time to qualify for permanent residence.

In summary, the IEC is a well designed and smoothly functioning federal program, which enables young candidates (18 to 35 years of age, inclusive) to qualify for work authorization in Canada for a period of time sufficient to place them in an excellent position to apply for a permanent residency pathway if they so choose. This program may also be an excellent option for American companies who are looking to place their talent in Canada for a year or two while their US immigration status is processed.

As the IEC is available for citizens of countries with which Canada has bilateral agreements permitting the employment of young people, not every country is covered, and there are differences between what is available across these agreements. The best approach is to research what may apply to you and consult with an expert who can guide you though the process. However, some facts we feel are not sufficiently well known, but could be of value to candidates are as follows:

  • IEC is also available to citizens of countries that do not have bilateral agreements with Canada, such as India and Brazil. These candidates would qualify with assistance of third parties, aka Recognized Organizations (ROs), which would serve as an intermediary that offers travel and work support for youth.
  • There are different options for qualification through IEC, including working holiday, international co-op internship, and young professional categories.
  • IEC candidates can get a work permit of up to 2 years, which is sufficient time to qualify for the Canadian Experience Class (CEC) of the Express Entry program and effectively become more competitive in the pool of candidates.
  • Processing times once the IEC pool is open is relatively short (3 weeks).
  • With the caveat that not all categories receive invitations during each round, for those that do, the chances of successful candidacy are very high as usually the number of participants in the pool is matched by the number of issued invitations.
  • Those with an offer of employment from a Canadian company have an even better chance of receiving an invitation.

Immigration is a deeply personal process, where each applicant’s unique circumstances determine the options and strategies that are best suited for their goals. It is certainly good to have options and to be informed of the many possibilities that may be available. Contact our knowledgeable and experienced team of experts to find out what pathways are possible for you.

If you would like to meet with one of our Canadian immigration law professionals to discuss your specific circumstances and potential strategies, we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca; trahan@cilf.ca

REOPENING CANADA: GREAT OVERALL, BUT LEAVING LOW HANGING FRUIT BEHIND

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An important announcement was made today by the Honourable Sean Fraser, Canada’s Immigration Minister, which brings badly needed encouraging news for people who have been stuck in various stages of the immigration process during COVID delays. In addition to trying to shake loose the large backlog, these changes are also intended to pave a better and easier pathway for talented workers who wish to make Canada their permanent home.

Perhaps the most awaited news of all that were announced today is that Express Entry draws will soon resume and a promise to get back to pre-COVID processing times of six months. Invitations to apply for permanent residence will being in early July.

International Students on Post Graduate Work Permits, who have been waiting for the Express Entry draw while facing imminent expiry of their work permits without viable solutions in sight, are now going to be eligible to apply for an open work permit valid for up to 18 months, which will allow them to continue to live, work, and establish themselves in Canada to eventually qualify for permanent residence programs.

Those who applied for the Temporary Residence to Permanent Residence pathway last year also received news in the form of new measures, which include:

  • applicants will no longer be required to remain in Canada throughout the time their application is being processed.
  • applicants who apply for an open work permit while waiting for their permanent residence application to be finalized will be able to get work permits valid until the end of 2024. This will ensure that all permanent residence applications will be finalized before applicants will need to apply to extend their temporary status again.
  • to support family reunification, immediate family members who are outside Canada and were included in a principal applicant’s permanent residence application will be eligible for their own open work permit.

This limited pathway was launched last year to invite candidates already working in Canada in a range of professions to apply to stay here permanently. It was closed in November 2021 to allow for the processing to continue.

Finally, the temporary public policy that allows foreign visitors to Canada to apply for an employer-specific work permit without having to leave Canada has been extended to February 28, 2023.

These measures are welcome news both for PR hopefuls who have been looking for viable ways to extend their work authorization in Canada and continue gaining valuable work experience in preparation for their Express Entry candidacy, as well as Canadian employers who are struggling to fill vacancies and address labour shortages.

While we appreciate this effort and recognize the many positive steps that are being undertaken by IRCC to close processing gaps and facilitate PR pathways for workers who are an essential cog in our economic recovery aspirations, there are unfortunate omissions that we would like the Minister to turn his mind to.

One such omission is that the eligibility to apply for an 18-month open work permit inexplicably applies only to individuals whose work permits expire on or after January 2022. This leaves a great number of people whose work permits expired in late 2021, but who are still affected by excessive processing delays, completely in the lurch. Those who are already out of status should be eligible to apply to be restored and secure the Open Work Permit for the next 18 months.

The announcement that TR to PR applicants are going to be able to travel outside of Canada while awaiting processing of their applications is greatly appreciated, but it begs the question of why individuals with implied (or maintained) status, who have to wait 4-7 months for the decision on their extension, are left out of this solution. Further, permanent residents with expired PR cards, which are currently also taking many moths to process, are similarly prohibited for leaving the country until they have a new PR card.  Changes are needed to allow these individuals to travel outside of Canada while their application for extensions are being processed too.

Finally, the new measure that will allow the dependents of TR to PR candidates to apply for open work permits even if they are currently outside of Canada is welcome news, but it is a literal slap in the face to Canadian citizens and PRs whose foreign spouses are often not even allowed to come to Canada while they await the processing of their sponsorship applications, let alone join their spouses in Canada and receive an open work permit. Those who have filed inland spousal sponsorships wait for months to receive authorization to work while awaiting processing. The Minister should extend the option for an open work permit to these individuals too.

Canada’s economy relies on the healthy influx of skilled immigration. However, Canada competes for this talent with other desirable global destinations. So far, we are winning the race for top talent by offering a comprehensive pathway to permanent residence and benefits of citizenship. However, the program itself is only as good as its execution. Today’s announcement is welcome, but timid. More can and has to be done to facilitate programs for people who are stuck or overlooked by the program before they decide to take their skills and talents elsewhere. What we are suggesting as improvements to what was announced today is low hanging fruit. Let’s hope someone in IRCC finds the will to pick it up.

If you would like to meet with one of our Canadian immigration law professionals to discuss your specific circumstances and potential strategies, we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca; trahan@cilf.ca

Goodbye 1984 – Government Introduces a Bill to Protect Personal Privacy and Rights of Travelers

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Since the start of the COVID-19 pandemic, increased scrutiny on travelers crossing borders and passing through airports has been par for the course. For good reason, customs officers have been tasked with protecting health and safety of the general population by conducting careful examination of who is permitted to enter a country, or board a plane. In this great turmoil, the conversation about the protection of personal privacy has naturally taken a backseat. With the end of the special measures in sight, the latest announcement on this subject is welcome news.

On March 31, the Government of Canada introduced a Bill to safeguard traveler privacy and rights. Introduced by the Minister of Public Safety, the Bill is designed to strengthen the framework governing the examination of personal digital devices by Canada Border Services Agency (CBSA) officers and United States Customs and Border Patrol preclearance officers operating in Canada. The Bill seeks to create standards that must be met before a personal digital device can be examined. In summary, the proposed legislation would amend the Customs Act and the Preclearance Act to:

  • Establish a new threshold that must be met before the initiation of a personal digital device examination, which requires reasonable general concern;
  • Create an authority to examine documents on personal digital devices, so that they can be distinguished from other goods, including commercially imported/exported digital devices; and
  • Require a specific purpose that formally limits examinations to regulatory border-related examinations.

This effort is clearly designed to balance the rights of travelers against the overarching objective of securing borders. However, following the October 2020 ruling of the Alberta Court of Appeal in R. v Canfield and R v Townsend, which established that paragraph 99(1)(a) of the Customs Act is unconstitutional as it establishes no limits on the right of CBSA to examine contents of personal digital devices, the government is clearly pursuing the broader objective of remedying the previous legislative shortcomings.

Typically, personal digital devices have been treated as goods that travelers have on them when they cross the border, and as such, subject to examination by CBSA. In other words, cellphones, computers, tablets, laptops, digital cameras, and any other device capable of storing digital data, fall under the same category as luggage. The obvious problem of this categorization is that the information stored on a personal digital device is not analogous to contents contained in a knapsack. In fact, the main problem is that rather than dealing with “items”, here we are dealing with personal information. The latter is protected under section 4 of the Privacy Act, which states, “No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.” To comply with section 4 of the Privacy Act, a government institution must have lawful authority for the collection of personal information.

In October 2019, responding to a number of complaints under the Privacy Act, the Office of the Privacy Commissioner of Canada published an investigative report, which among other recommendations such as better officer training and clearer instruction manuals, recommended legislative change. The report concluded that the search of an electronic device at the border is an extremely privacy intrusive procedure and highlighted the inherent problems associated with considering digital devices to be simply “goods” in terms of the application of the Customs Act. The specific recommendations included an update to the definition of “goods” under the Customs Act, development of a clearer legal framework, and elevation of the threshold to “reasonable grounds to suspect”. The proposed threshold was to replace the existing “multiplicity of indicators” standard in the CBSA policy.

The proposed Bill S-7 imports these recommendations, a welcome step towards modernizing the Customs Act, which was enacted in 1985, long before examination of cell phones and other digital devices could have been contemplated by the legislators. It is a hopeful sign that a proper balance can be struck between safeguarding the borders and protecting the personal right to privacy.

If you would like to meet with one of our Canadian immigration law professionals to discuss your specific circumstances and potential strategies, we are happy to advise. Our legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; mukherjee@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; green@cilf.ca; trahan@cilf.ca