New playing field for businesses hiring immigrants

The recession will likely mean a decline in business immigration this year, but the federal and Ontario governments have nevertheless made a few changes that will provide companies with expanded recruitment options.

Provincially, the government in February announced the expansion of its provincial nominee program, now called Opportunities Ontario. It began in 2007 in a bid to fast-track the immigration process for businesses that nominate a prospective employee to come to Canada. Now, the province is doubling the number of nominees it will accept to 1,000 from 500.

The federal government, meanwhile, has made similar moves to allow businesses to hire offshore through the arranged employment option that will allow people with a job offer to get permanent residence. Still, some immigration lawyers feel the provincial program offers a number of advantages over the federal one.

In particular, the Ontario bureaucrats who run it are easy to deal with, Randy Hahn an associate at the Toronto firm Guberman Garson Bush said during a February session on immigration law at the Ontario Bar Association Institute. “They want to make things work,” he said.
“That’s worth gold,” he added.

Other benefits include the fact that, unlike the federal program, Opportunities Ontario has no minimal requirement for proficiency in English or French, Hahn noted.

As well, it allows foreign students who get a job after graduation to get permanent residency, something the federal Canadian experience class will only do once they’ve worked for at least a year. The provincial changes also mean foreign students can apply even if the job they get is outside their field of study.

Still, not all lawyers agree the Ontario program is much help. “It hasn’t been terribly helpful. In the past, there’s been a lot of redundancy,” says Nan Berezowski founder and principal lawyer of Berezowski Business Immigration Law in Toronto.

Previously, the requirements for the program were too narrow, meaning she found few candidates were eligible. At the same time, investors applying to be nominees had to put up too much money, a problem the new rules addressed by lowering the investment threshold to $3 million. As a result, Berezowski says the recent changes are positive. “I’m optimistic that they’re going to improve that.”

Besides the provincial nominee program, governments this year have opened a few other new doors for businesses seeking workers from abroad. They include changes to NAFTA work permits, which allow Canadians working in a designated profession to get a U.S. visa.

Previously, those permits were available for up to a year; now, Canadians can get one for up to three years. On the flip side, the Canadian government has made a similar extension of NAFTA permits available to Americans wanting to work here, a positive move for businesses, says Bill MacGregor, a partner with Gowling Lafleur Henderson LLP in Waterloo.

The federal government has also extended work permits for foreign graduates of Canadian post-secondary institutions. As long as their program of study is one that takes two years to finish, they can now get a work permit for up to three years once they graduate. They would then be eligible to become permanent residents under the Canadian experience class after they’ve finished a year of work experience, MacGregor notes.

Overall, MacGregor says those new rules, in tandem with major changes to the immigration system in November, represent a significant shift for businesses looking to hire immigrants. “There’s more of a focus on facilitating permanent residence for foreign nationals who are already here working,” he says, referring to the new Canadian experience class.

As a result, the government is making it easier for companies to keep the foreign workers they hire. Although new rules on first attempting to recruit Canadians before the government will let businesses hire foreign workers represent a change in the other direction, MacGregor says faster processing times for labour market opinions necessary to bring in someone from abroad are a help.

But at the same time, lawyers involved in business immigration wonder whether the economic downturn will lead governments to limit the movement of people through subtle ways. Border officials could, for example, apply the rules more rigidly for people seeking NAFTA permits.

“I think there is a potential concern that the rules that are out there may be interpreted more tightly in some instances perhaps because of concerns for the economic slowdown and jobs,” says MacGregor.

Already, Berezowski has seen that trend emerge at the U.S. border, something she suspects is happening here as well. “I think there’s a version of this going on on the Canadian side. I don’t think it’s as bad,” says Berezowski, whose firm does a lot of work in cross-border immigration.

The rules, she notes, are often subjective, including the fact that while NAFTA permits can last as long as three years, how much time a person actually gets is up to border officials. At the same time, they can decide an employment letter that is a few days old is no longer valid, something that might not have happened when the jobs outlook was better.

So, Berezowski is advising clients to be more vigilant about making sure their applications are complete. “The answer is you’ve got to be really careful. You’ve got to document everything to death.”

More generally, Berezowski says the government’s massive changes to the immigration system have nevertheless been positive for her practice, particularly since she deals with a lot of foreigners who already have work permits and who therefore can now more easily apply for permanent residence under the new rules.

Still, she worries whether the new focus on bringing in immigrants for specific jobs and occupations - often on the invitation by a particular employer - might have a downside in the long term. 

That’s because the preferred jobs the government wants to bring in immigrants to fill may no longer be in demand later on. Referring to the many mining engineers and tradespeople brought in to work in Fort McMurray, she says, “If we’re not going to be pumping out of the oil sands, we’re not going to need these guys.”

At the same time, the fact that Canada isn’t bringing in immigrants for the jobs currently out of favour may create a labour shortage in those areas down the road, something Canada has been experiencing since the 1990s when provincial governments made it more difficult for foreign-trained doctors to practise here.

As a result, she wonders whether a system that falls between the new occupation-focused one and the recently discarded human-capital model based on skills sets might be better. “I think there’s got to be some sort of hybrid,” she says.

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