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Special measures implemented for certain foreign nationals and immigration applicants affected by COVID-19

As coronavirus disease 2019 (COVID-19) continues to spread globally, applicants for Canadian immigration benefits located in certain countries have experienced a number of disruptions with respect to the processing of their applications.  Such disruptions include: (1) the closure of visa application centres, (2) service interruptions at Canadian visa offices, (3) travel plan disruptions, (4) limited access to local government offices and business, and (5) limited access to designated physicians for the completion of mandatory medical examinations.

On February 7, 2020, Immigration, Refugees and Citizenship Canada (IRCC) implemented its first set of special measures for temporary and permanent resident applicants located in China, as well as for approved applicants in China unable to travel.  These special measures were expanded to similar applicants in Iran and South Korea on February 29, 2020.

Currently, IRCC’s special measures grant accommodations to the following individuals:

  • Chinese, Iranian or South Korean nationals; or
  • Foreign nationals located in China, Iran or South Korea; and
  • Who are affected by service disruptions or travel restrictions related to COVID-19.

The special measures are intended to provide flexibility for those who, due to the above disruptions, are unable to meet or comply with certain requirements.  With respect to applications still in processing, IRCC has stated that it will not refuse or close an application due to a lack of documentation.  By way of example, IRCC will grant automatic 90 day extensions beyond the usual deadline for complying with procedural requirements, including:

  • The completion of biometrics, which involves attending a visa application centre to provide fingerprints and a photograph;
  • The completion of a mandatory medical examination with an IRCC-approved panel physician;
  • The submission of supporting documents (ex. police certificates); and
  • The submission of a passport once an application has been approved.

Accommodations are also being provided to foreign nationals whose applications for permanent residence have recently been approved, but are unable to travel to Canada due to COVID-19.  Once an application for permanent residence has been approved, a document known as a Confirmation of Permanent Residence (COPR) is issued, and the foreign national must present this at a Canadian port of entry within a limited timeframe in order to complete the process of “landing” as a permanent resident.  The expiry date noted in one’s COPR cannot normally be extended.  However, IRCC’s special measures will allow for the consideration of extenuating circumstances related to COVID-19, which should facilitate the continuation of the landing process beyond the expiry of a COPR.

Applicants for Canadian citizenship unable to travel to Canada for purposes of attending crucial citizenship events and appointments may also be provided with limited accommodations, so long as the inability to travel is sufficiently related to COVID-19.  Such events and appointments include: (1) attending the citizenship knowledge test or retest, (2) attending the citizenship interview, (3) attending a hearing, or (4) taking the Oath of Citizenship.  However, in order to be eligible for an accommodation, IRCC must be notified of the inability to travel within 30 days of missing the event or appointment. 

In some cases, applications related to temporary or permanent residence may be approved or granted on an urgent basis.  For foreign nationals who require a visitor visa, study permit, or work permit in order to travel to Canada urgently due to exceptional circumstances, IRCC will consider these applications on a case-by-case basis.  Similarly, for those permanent residents who do not possess a currently-valid Permanent Resident Card, IRCC will also consider urgent requests for a permanent resident travel document on a case-by-case basis.

Special measures implemented for certain foreign nationals and immigration applicants affected by COVID-19

Update on Canada’s ability to collect traveller data during entries/exits

The Entry/Exit Program is a joint initiative between Canada and the United States.  Implemented on June 30, 2013, it enables Canada Border Services Agency (“CBSA”) officers to collect information on foreign nationals (excluding U.S. citizens) who exited the country via land border crossing into the United States. 

Currently, the Customs Act[1] enables CBSA to record entries and exits via land border crossing for all travellers (including both Canadians and Americans), as well as entries by air.  CBSA is therefore able to maintain travel records which capture entries for all travellers by air and land, but only exits via land border crossings. 

Of course, as many travellers exit Canada by air, these travel records are largely incomplete.  However, CBSA’s access to traveller information will be further expanded as a result of Bill C-21, An Act to amend the Customs Act, which received Royal Assent on December 13, 2018.  Bill C-21 will enable Canada and the United States to exchange basic biographic entry data on all travellers entering into their respective countries.  Entries into one country will therefore indicate an exit from the other, and this information will be shared. 

CBSA and its United States counterpart, U.S. Customs and Border Protection, have entered into an information sharing memorandum of understanding, which includes safeguards and protections for the exchange of travellers’ biographic entry data.  The biographic data collected on each traveller during exits by land border crossing includes: (1) name, (2) date of birth, (3) nationality, (4) sex, (5) travel document type, (6) travel document number, (7) name of country that issued the travel document, (8) date and time of exit, and (9) name of land border crossing used during exit.  

Significantly, once the regulatory amendments and related information sharing arrangements are in effect (expected to take place in June 2020), CBSA will also be able to record exits by air for all travellers.  In this regard, exit information will be obtained directly from air carriers through passenger manifests. 

In summary, once fully implemented, Bill C-21 will enable CBSA to maintain accurate and increasingly complete travel records for all travellers.  More specifically, information on the date, time, flight information, and location of departure by air will soon be recorded for all travellers departing on outbound international flights, in addition to the biographic data noted above.  However, this information will not be shared with the United States under the current version of the joint Entry/Exit Program.

The stated purpose of the Entry/Exit Program, as well as CBSA’s broader ability to record the biographic data on travellers entering and exiting the country, is to maintain a strong and secure border.  Indeed, it does allow for the tracking of known high-risk travellers, and enables action on time sensitive situations, such as locating abducted children or runaways.  However, this information is also used in connection with the more common traveller.  Such routine uses of entry and exit data include:

  • Identifying individuals who remain in Canada beyond their authorized period of stay;
  • Determining whether applicants meet residency requirements for purposes of citizenship and permanent residency applications (including those applicants who seek to renew their permanent residence cards on an on-going basis); and
  • Verifying travel dates for purposes of applying duty and tax exemptions.

Canadian citizens, permanent residents of Canada, as well as foreign nationals currently present in Canada, can request their Travel History Report from the CBSA under the Privacy Act.[2]

[1] R.S.C., 1985, c. 1 (2nd Supp.).

[2] R.S.C., 1985, c. P-21.

Update on Canada’s ability to collect traveller data during entries/exits

Proposed change to afford certain temporary foreign workers with increased mobility

Immigration, Refugees and Citizenship Canada (IRCC), and Employment and Social Development Canada (ESDC), have proposed an amendment to the Immigration and Refugee Protection Regulations (IRPR), which would provide increased employment mobility to certain foreign workers under the Temporary Foreign Worker Program (TFWP). The proposed amendment was published on June 22, 2019, in Part I, Volume 153, Number 25 of the Canada Gazette.

Under the TFWP, to hire a foreign worker, employers must obtain an approved Labour Market Impact Assessment (LMIA) from ESDC, pursuant to which IRCC issues a work permit. The current program only authorizes the issuance of an employer-specific “closed” work permit. Foreign workers are, therefore, completely dependent on the employer noted on the work permit. Should a foreign worker wish to leave the current employer to take up new employment, a new LMIA and work permit would currently be required. This is a costly process, requiring a great deal of time and effort. Moreover, the costs and effort would primarily be required on the part of the new employer, which only makes finding such an opportunity more difficult.

As a result of the above, the TFWP in its current form, grants a great deal of power to employers. As many foreign workers are unlikely to find another employer willing to navigate the process of obtaining a new LMIA, these workers have little option but to endure difficult employment conditions. Considerations such as these have prompted IRCC and ESDC to propose the change.

The proposed amendment would introduce LMIAs and work permits that are occupation-specific instead of employer-specific. Occupations in Canada are defined and organized in accordance with the National Occupational Classification (NOC), which assigns each occupation a four-digit NOC code. Pursuant to the proposed amendment, the new LMIAs (and the resulting work permits) would instead be specific to a particular NOC code, and not to a specified employer. This would afford foreign workers increased employment mobility by allowing them to change employers without first obtaining a new LMIA or work permit, so long as they remained in the same occupation. This would remove the most significant barrier to finding suitable alternative employment, as new employers would not be burdened with the cost, time and efforts required to support a new LMIA application. With this barrier removed, the effect would be to restore some power to foreign workers, allowing them increased opportunity to leave undesirable employment situations.

Notably, the proposed change to the TFWP would not affect all streams of the LMIA. Instead, it is intended to target two LMIA streams that are used to employ the most vulnerable of temporary foreign workers; the Low-wage Stream and the Primary Agriculture Stream.

The High- or Low-wage Streams of the LMIA are defined by reference to a provincial or territorial median hourly wage, as published by ESDC. By way of example, the Ontario median hourly wage is currently CA$22.50. Therefore, positions in Ontario that offer a wage at or above the median hourly wage are processed under the High-wage stream, while positions offering a wage lower than this are processed under the Low-wage Stream.

As its name suggests, the Primary Agriculture Stream is used to employ foreign workers on a farm, nursery or greenhouse. Such employment will involve one of the following: the operation of agricultural machinery; obtaining raw animal products for market; or the processing of raw products, the planting, care, harvesting or preparation of crops, trees, sod or other plants for market.

The two above LMIA streams are primarily used to employ low-skilled foreign workers, as these positions require little-to-no education and provide workers with minimal wages. As a result, the proposed amendment to the IRPR should provide increased employment mobility, and therefore, power in the employer-employee relationship, to the most vulnerable of Canada’s temporary foreign workers.

It remains to be seen whether IRCC and ESDC will move forward with the amendment, and whether there is any appetite to provide similar changes for the LMIA streams used for more highly-skilled foreign workers.

Proposed change to afford certain temporary foreign workers with increased mobility