April 29, 2015
On April 10, 2015, three foreign nationals became the first permanent residents (PRs) under Citizenship and Immigration Canada’s (CIC) new Express Entry system. In Citizenship and Immigration Canada’s related announcement, it indicates that two of the three new PRs were international students who qualified under the Canadian Experience Class category, touting this as evidence of Express Entry’s efficacy for international students in Canada.
Leading up to this announcement, foreign students, Canadian universities and immigration lawyers criticized CIC’s Express Entry system for leaving international students out. As covered in our previous blogs, Express Entry puts students and other LMIA-exempt work permit holders, including specialized and executive-level intra-company transferees, at a disadvantage and forces them to obtain Labour Market Impact Assessments or Provincial Nominations.
For a detailed background on the Express Entry program and an analysis of previous draws by CIC, please see our previous blogs on these topics.
CIC and Minister Chris Alexander have not adequately responded to these critiques. Instead, they issue misleading statements, like the announcement on April 15, 2015 where the government displays the students who received PR as a hallmark of Express Entry’s effectiveness to retain top foreign talent, particularly international students. CIC even indicates that international students are “well-placed for success under the Express Entry system because of their high education, Canadian work experience, strong official language skills and youth.” The truth is that the government is advertising part of the picture without explaining what is behind Express Entry.
In reality, international students are not a priority under Express Entry. The three individuals who have been granted PR most likely had a Labour Market Impact Assessment or Provincial Nomination before they were invited to apply. Otherwise, they likely possessed an exceptional combination of skill and education factors that most international students are unlikely to have when they apply for PR, which is the only way they would have achieved enough points for an Invitation to Apply for PR. These circumstances do not represent most students or LMIA-exempt work permit holders.
One of the students who received PR, Mr. Zhao, graduated from Mohawk College in 2003. Foreign graduates of Canadian post-secondary institutions are generally eligible for a three year work permit, at a maximum. If Mr. Zhao received a three year work permit, he would have likely needed a LMIA or PR by 2006 to continue working in Canada. It is almost guaranteed that Mr. Zhao had a LMIA at the time he applied under Express Entry which earned him an Invitation to Apply. Ms. Zheng, the other student who became a PR, was likely in similar circumstances having graduated from Humber College in 2012.
Let’s look at two other potential scenarios.
Ms. X has two Master’s degrees from Germany and worked for a German company for four years in an executive role. In 2013, Ms. X was transferred to a related company in Canada as an intra-company transferee. She has worked here for the last two years and qualifies under the Canadian Experience Class. Her Canadian employer has offered her permanent, full-time employment. She creates a profile under Express Entry but does not achieve enough points to get an Invitation to Apply. In order for her job to qualify as a valid job offer, her employer needs to apply for a LMIA. Her employer is confused because they did not need a LMIA to bring her into Canada as an intra-company transfer. Ms. X is left waiting, with no certainty, while her employer spends several months trying to obtain a LMIA for her.
Mr. Y graduated from the University of Toronto last year. He qualifies under the Canadian Experience Class. Mr. Y. creates an Express Entry profile; however, he needs his employer to obtain a LMIA for him so that his job offer qualifies. Mr. Y’s employer advertises for Mr. Y’s role and finds several Canadian candidates who are qualified to do his job given that, as a new graduate, he is not highly specialized. The LMIA application is refused. Mr. Y’s employer does not qualify for the provincial nomination program because they do meet the minimum yearly revenue requirement. Mr. Y will not receive an Invitation to Apply unless he is one of the highest-ranked candidates in the pool.
These scenarios outline the reality that many foreign nationals are facing when trying to obtain permanent residence and are in stark contrast to the picture that CIC is painting. While the reduced processing time under Express Entry is a positive achievement, it does not serve the foreign nationals who cannot even get an Invitation to Apply.
We are still hoping to see changes to Express Entry so that LMIA-exempt work permit holders can better compete and encourage CIC to have an open and transparent conversation about the impacts of Express Entry.
Dale & Lessmann LLP invites you to contact our experienced Immigration Practice Group for assistance navigating the new Express Entry program.