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2004
IMMIGRATION LAW DEVELOPMENTS (Page2)
TEMPORARY
FOREIGN WORKERS
The
amended regulations expand the categories of temporary foreign workers
who may make an application for a work permit at a port of entry.
Previously, only U.S. citizens and permanent residents, together with
residents of Greenland or St. Pierre and Miquelon, could make an
application for a work permit upon their entry to Canada where the offer
of employment requires a job confirmation from Human Resources and
Skills Development Canada ("HRSDC"). As before, persons
requiring a temporary resident visa are ineligible to apply for a work
permit at the ports of entry under subsection 198(1) of the IRPR.
However, the amended regulations allow foreign nationals from
visa-exempt countries to make an application for a work permit at the
port of entry providing they have previously obtained a labour market
opinion from HRSDC. This change will help facilitate the entry of
visa-exempt foreign workers whose jobs require HRSDC confirmation and
who need to start their employment in Canada quickly.
Subsection 198(2)(a)(i) of the IRPR specifically precludes seasonal
agricultural workers and live-in caregivers from making an application
for a work permit at the port of entry; such applicants must submit an
application at a Canadian immigration office overseas. As before,
foreign nationals who are required to undergo a medical examination may
only apply for a work permit at a port of entry if they have previously
undergone and passed a medical examination. Similarly, Youth Exchange
Program participants may only apply for a work permit at a port of entry
if they are citizens or permanent residents of the United States or
their application for a work permit was approved in advance of their
entry into Canada.
All work permit applicants continue to have the option to apply for a
work permit at a Canadian immigration office abroad, should they so
desire.
Subsection 199(b) of the regulations was amended to remove the
three-month waiting period for foreign nationals who enter Canada to
work under the authority of section 186 of the IRPR. Previously, such
foreign nationals were required to wait at least three consecutive
months before they could make an application for a work permit from
within Canada. Business visitors within the meaning of section 187 or
the regulations are ineligible to make such an application from within
Canada. Similarly, subsection 199(i) was added to allow foreign nation-als
holding a written statement from the Department of Foreign Affairs and
International Trade stating that it has no objection to the foreign
national working at a foreign mission in Canada to make an application
for a work permit from within Canada.
Various contradictions in the IRPR relating to applications for and the
issuance of work permits were identified and corrected by the
amendments. Under the old regulations, subsection 200(1)(d) prevented an
officer from issuing a work permit to a foreign national if it was
established that he or she was inadmissible to Canada. At the same time,
subsection 199(d) of the IRPR purported to allow temporary resident
permit holders, who, by definition, are inadmissible, to make an
application for a work permit after entering Canada if the temporary
resident permit was valid for a period of at least six months. What is
more, officers would routinely issue a work permit in conjunction with a
temporary resident permit where it was established that a significant
benefit existed in allowing a foreign national to enter Canada to work,
despite the language of subsection 200(1)(d). These contradictions were
addressed by repealing subsection 200(1)(d) of the regulations.
Subsection 200(3) of the regulations outlines several circumstances
where an officer is precluded from issuing a work permit, including the
case where a foreign national has engaged in unauthorized work or study
in Canada. Subsection 200(3)(i) was amended to clarify that a work
permit may not be issued to a foreign national until a period of six
months has elapsed since he or she has ceased the unauthorized work or
study or the failure to comply with the condition of his or her
immigration status. In addition, subsection 200(3)(iv) was added to
allow foreign nationals who have been issued a temporary resident permit
to be issued a work permit, despite the fact that he or she had engaged
in unauthorized work or study in Canada or had otherwise failed to
comply with a condition of his or her immigration status.
Last, subsection 203(1) of the IRPR was amended by striking the word
"economic" from the description of the factors an officer is
to consider in assessing the impact of a foreign national's employment
on the Canadian labour market. Previously, the regulations provided that
an officer was required to determine whether the job offers were genuine
and whether the employment was likely to have a neutral or positive
economic effect on the labour market in Canada. It has been suggested
that this amendment now restricts an officer's ability to consider any
broader economic effect the foreign national's employment might have
upon the Canadian labour market. By the same token, however, it is also
arguable that the new provision is more expansive, as the officer may
now consider any effect a foreign national's employment may have on the
Canadian labour market, whether economic or not.
TEMPORARY
FOREIGN STUDENTS
The
amended regulations impose a new requirement on foreign nationals
seeking to renew their study permits. This measure is designed to
protect program integrity in cases where students have discontinued
their studies after their initial entry into Canada. Applicants must now
provide evidence of "good standing" at the educational
institution at which they have been studying in order to be issued a new
study permit. Despite a proposal from the Canadian Bar Association to
create an exception for students who could demonstrate that they could
not maintain their good standing for legitimate reasons, CIC declined to
include such an amendment, indicating that there was sufficient
flexibility in the IRPR to address such an issue in the appropriate
circumstances. Last, as with the amendments made to the regulations
restricting the issuance of work permits to foreign nationals who are
inadmissible, the regulations relating to the issuance of study permits
to inadmissible foreign nationals have been similarly amended to resolve
the contradiction.
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