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Strong Fence, Wide Gate: Canada’s Changing Immigration Policy

By Ralph Dzegniuk & Divya Shahani Created: January 19, 2013 Last Updated: January 31, 2013
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Immigration Minister Jason Kenney says new Canadians should be able to communicate effectively in French or English to participate fully in the Canadian economy and society. Language ability scores high under the new point system for immigration. (Citizenship and Immigration Canada)

Immigration Minister Jason Kenney says new Canadians should be able to communicate effectively in French or English to participate fully in the Canadian economy and society. Language ability scores high under the new point system for immigration. (Citizenship and Immigration Canada)

The Honourable Jason Kenney, Canadian Minister of Citizenship, Immigration and Multiculturalism, appears to be quite fond of metaphors.  He has recently quoted the New York Times columnist, Thomas Friedman, on his conceptualization of the ideal immigration system as one with a “strong fence, but a wide gate.”  As promising as this metaphor sounds, the question that many potential immigrants to Canada have is what would such an immigration system actually entail.

Mr. Kenney further explained his view of Canada’s new immigration system, particularly as it pertains to the new Federal Skilled Worker Program (commonly known as the “point system”) in his Empire Club address at the Royal York Hotel in Toronto on May 25, 2012.  In it, Mr. Kenney expressed his belief that it is irresponsible of the government to maintain an immigration system with loopholes where “people who have no intention of integrating can come into the country too easily.”  According to Mr. Kenney, the kind of system that Canadians would support is one based on two caveats: 1) “the system should be characterized by fairness and integrity” and 2) “we must see immigration working for Canada’s interests, which of course also means working for the interests of newcomers.” 

One can interpret these words as repetition of the commonly held view that the onus of integration is on immigrants. However, they can also be interpreted as an expression of regret: that the onus of integration is a shared one, and the Canadian government has failed to ensure that those immigrating to Canada have the type of skills and credentials that would indeed enable them to do so.  In other words, the Minister’s stance can be read as an expression of pragmatism. The new immigration system, and particularly the new Federal Skilled Worker Program (FSWP), is meant to address the apparent disjoint between Canada’s reputation as a welcoming society and the reality of a high unemployment rate, or underemployment, among new immigrants.  It does this by acknowledging certain job market realities and by revising certain eligibility requirements accordingly. 

In brief, the new system is created to select immigrants based on their ability to succeed economically in Canada. While the previous FSWP (which was changing over the recent years) meant to accomplish the same goal, it is the Minister’s view (arguably shared by a fair number of Canadians) that it failed to do so and that the new changes, which, according to the government’s latest timeline, are supposed to come into force on May 3 of this year, will finally achieve it.  

The New FSWP

The FSWP (“point system”) has been temporarily suspended (with narrow exceptions) on July 1, 2012 partly in order to give the government the time required to come up with these new changes and partly in order to reduce the backlog of existing cases, which has grown to unacceptable levels over the last number of years.

The anticipated re-launch of FSWP on May 3 (although this timeline has been pushed back already and there is no guarantee that the May 3 date is a firm one) focuses on a few specific areas that, research has shown, significantly impact on the economic success of immigrants. These include: language proficiency, age, Canadian work experience, and Canadian education.

Language

A principal applicant can now be awarded a maximum of 24 rather than 16 points for his/her proficiency in a first official language. At the same time, points awarded for a second official language have been reduced from 8 to 4.  The new program also introduces certain minimum benchmark criteria (which did not exist previously) for English proficiency, which vary with the skill-level of the prospective immigrant’s occupation. In order to qualify, FSW applicants with higher-skilled occupations will have to score higher on the English language exam than those with lower-skilled occupations.    

Emphasis on language proficiency can also be seen in that points that used to be awarded under “adaptability” for the level of education of the applicant’s spouse or partner have been replaced with a maximum of 4 points for spouse’s or partner’s language proficiency. 

As a result, under the new program, language proficiency appears to be the most important factor on the assessment grid, and thus most crucial in determining the likelihood of the application’s success.  Why this shift?  Canadian and international research has shown time and again that language proficiency is one of the most important factors in securing better employment and a higher salary.  What this means for prospective applicants is that English language skills must be seen as a priority.  The upside of this is that language proficiency will not only increase an immigrant’s chances of success in the application process, but also, once in Canada, it will make them significantly more competitive when searching for and securing employment.        

Age

A maximum of 12 (instead of the former 10) points can now be awarded to applicants aged 19 to 35, with decreasing points awarded till the age of 46.  This represents a significant shift towards youth, as previously, maximum points were awarded until the age of 49. What this means is that, all other factors being equal, applicants under the age of 35 will have a higher chance of success in their application (while, on the other hand, applicants over the age of 46 might have a difficult time qualifying, unless they can make up for the lost age points elsewhere).  As with language proficiency, these changes are in line with market research which shows that younger immigrants have a greater likelihood of success in the Canadian job market. 

Foreign Work Experience

Under the new FSWP, the maximum number of points awarded for foreign work experience has been reduced from 21 to 15 points.  At the same time, the number of years of foreign work experience required to get full points in this category has been increased from 4 to over 6.  Points have been shifted from this category to the language and age categories because, as mentioned above, the latter have shown to be stronger predictors of economic success in Canada.        

Foreign Education

Under the old FSWP, points were awarded to applicants based on the educational credentials obtained in their home country as well as the total completed years of education.  The new FSWP requires that foreign education credentials be evaluated for their equivalent value in Canada by certain designated organizations.  Points will be awarded accordingly.  The list of agencies responsible for conducting these evaluations will be announced by the Minister in the near future (likely before May 3).  In other words, the question will not necessarily be what level of education the potential immigrant obtained in their home country, but rather, what this would translate into under the Canadian education system.

The aim of these new regulations is twofold: to screen out fraudulent credentials, and to increase the likelihood of foreign credentials translating into success in the Canadian job market and, in turn, economic success in Canada.  

Canadian Work Experience

The government has found that, when hiring, Canadian employers vastly prefer Canadian work experience.  Again, in an attempt to bridge the gap between immigration requirements and indicators of success in the Canadian job market, the new FSWP has increased points for previous work experience in Canada to a maximum of 10 points (while, as already noted above, reducing the emphasis on foreign work experience). 

Arranged Employment

Research has shown that those who immigrate to Canada with concrete, firm job prospects earn 79% more in their first three years in the country than those without such prospects.  However, changes have been implemented with respect to this category in order to curb the potential for fraud. 

Under the new FSWP, the potential employer and the job offer will be both scrutinized more closely within the Labour Market Opinion (LMO) process.  The LMO will verify whether there is, in fact, a need for a given type of a worker in the Canadian job market.  At the same time, the concept of Arranged Employment Opinion (AEO), as such, has been eliminated. To review, AEO was essentially a promise by a Canadian employer to hire the foreign worker once they successfully immigrate to Canada, a process that took, in some cases, up to 5 or 6 years. It was both unrealistic and unlikely that a Canadian employer would, in fact, keep a position open for a prospective immigrant for such a long period of time and, as a result, the entire AEO process was rife with fraud. LMO, on the other hand, will enable a prospective immigrant to apply for a Work Permit and come to Canada within a matter of months, instead of years, and apply for permanent resident status thereafter, while they are already working for their Canadian employer.

This, in turn, should significantly speed up a potential immigrant’s economic and social integration, while, at the same time, reduce the frustration that many newcomers experience when they are unable to find employment that matches their skills and qualifications. 

Further Anticipated Changes

Finally, it is important to note that by 2014, it is the government’s aim to move further away from a passive immigration system currently in place, to an “expression-of-interest” system, whereby the needs of the Canadian economy would be entirely in sync with immigration requirements.  Mr. Kenney has said that by 2014 (again, this is a soft timeline) the aim is to have an “invitation-only” route for economic immigrants. Under this system, potential immigrants would post their resumes on a Canadian database that would be accessible to Canadian employers looking to find permanent workers. 

There are certain advantages to this match-maker like approach to economic immigrants; for instance, if a candidate is sought by an employer, and he/she meets immigration requirements, the application would be processed within months.  This candidate would then arrive in Canada as a permanent resident, able to commence employment almost immediately which, again, should enable him or her to achieve economic success much faster than under the current passive system.

It is not yet entirely clear whether this “expression-of-interest” system would be mandatory, but based on the (rather sparse) information provided by the Minister to-date, it appears not (thereby still enabling those not selected by Canadian employers to apply).

Conclusion

It is reassuring to know that the man whose views on immigration Mr. Kenney appears to embrace and emulate —Thomas Friedman—is a pro-immigration liberal.  It is a mistake to view the new FSWP as anti-immigrant.  Rather, as explained above, it is an expression of pragmatism; it is the government’s attempt to deal with high rates of unemployment or underemployment among newcomers by ensuring that immigrants have what it takes to succeed in the competitive Canadian job market. In short, it is a path to – hopefully – faster economic success in their new homeland.   

In addition, the new FSWP aims to process applications within months rather than years.  While such promises had been made – and broken – previously, this now appears a more feasible goal due to the limits the program will likely place on the number of applications it will accept each year. 

Overall, I remain cautiously optimistic about the new program, but would strongly urge anyone interested in potentially applying under it to start organizing themselves to do so well in advance of the May 3 introduction day. With likely annual caps on the number of accepted applications it will be crucial to file the application and get in the queue before the caps for the year have been reached. Given the fact that tens, if not hundreds, of thousands of applicants have been waiting for the program to reopen, it is likely that the caps will be filled within a very short period of time.

Ralph Dzegniuk, Barrister & Solicitor, has a full-service immigration law practice in Toronto, Canada. migrate-2-canada.com. He can be reached via email ralph@migrate-2-canada.com or by telephone at: (416) 548 9072. Divya Shahani is a student-at-law.

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