CANADA Immigration Updates

There are new employer compliance requirements before applying for certain Canadian work permits. Also, criminal inadmissibility under Canadian immigration law is summarized below.

New employer compliance requirements for certain Canadian work permits. Effective February 21, 2015, amendments to Canada’s Immigration and Refugee Protection Regulations require Canadian employers to first submit employer compliance information and an additional fee before submitting certain Work Permit applications. This new required “first step” applies to employer-specific Work Permit applications based on a regulatory exemption to the regular Labour Market Impact Assessment (LMIA) process. Citizenship and Immigration Canada (CIC) claims this change is necessary to reinforce integrity within the International Mobility Program by making the employer compliance scheme more rigorous.

Employers must now proactively provide their offer of employment made to a foreign national in support of an LMIA-exempt Work Permit directly to CIC via the new IMM 5802 form—”Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA).” The new employer compliance fee of $230, levied to fund employer compliance inspections, must first be paid online to CIC to generate the fee receipt number required for insertion on the new IMM 5802 form. Once the IMM 5802 form has been duly completed—including the fee receipt number, information regarding the employer, primary employer contact information, details of the job offer, foreign worker information, and the employer’s signature—the applicant must send it to the designated email address. Employers should ensure that the form is accurately completed to avoid Work Permit refusals.

Upon payment of the $230 employer compliance fee and completion of the IMM 5802 form, the foreign national can then apply for the LMIA-Exempt Work Permit together with appropriate submissions, supporting documents, and the Work Permit processing fee of $155. In a case where the pre-approval of a Work Permit application is being sought for an International Mobility Worker Unit in Canada, it would be prudent to include the IMM 5802 form and $230 employer compliance fee receipt. If an accompanying spouse of the LMIA-exempt foreign national applies for an open spousal Work Permit, an additional new fee of $100 will apply in addition to the Work Permit processing fee of $155 for the spouse.

Employers that do not adequately follow the first compliance step or do not pay the employer compliance fee will find their Work Permit applications refused. Where an employer-specific, LMIA-exempt Work Permit application is refused due to concerns about the genuineness of the job offer, the $230 employer compliance fee will be refunded to the employer.

Criminal inadmissibility under Canadian immigration law. Regardless of their purpose for coming to Canada, foreign nationals must be admissible to come to Canada under Canada’s Immigration and Refugee Protection Act (IRPA). Among the most common grounds of inadmissibility to Canada are serious criminality and criminality. 

With regard to a foreign offense, serious criminality means having been convicted of an offense outside Canada punishable by a maximum imprisonment term of at least 10 years. “Regular” criminality with regard to a foreign offense means having been convicted outside Canada of an offense that would be considered an indictable offense in Canada or of two offenses that would be considered Canadian offenses. Indictable offenses are more serious, whereas summary conviction offenses are more minor. Where offenses in the Canadian Criminal Code can be prosecuted by way of summary conviction or by indictment, they are “hybrid” offences. Under Canadian immigration law, hybrid offenses are deemed to be indictable offenses that trigger criminal inadmissibility.

Counsel should perform a criminal equivalency analysis to assess whether a foreign national may be inadmissible to Canada by comparing the essential elements of the foreign offense with possible equivalent Canadian offenses. If there are reasonable grounds to believe that a foreign national was convicted of the equivalent of a Canadian indictable or “hybrid” offense, the foreign national will be criminally inadmissible.

Many foreign nationals are inadmissible to Canada due to a past conviction for driving under the influence of alcohol (DUI). If the foreign DUI conviction is equivalent to a conviction for the hybrid Canadian offense of “operating while impaired,” he or she will be inadmissible. If the foreign DUI conviction is equivalent to a pure summary conviction offense in Canada or a Canadian provincial highway code infraction, then he or she will be admissible.

Some foreign court dispositions do not amount to convictions in Canada and do not trigger criminal inadmissibility. An “expungement” in a U.S. state does not equate to a conviction in Canada because the charges are obliterated. Similarly, an “acquittal contemplating dismissal,” “deferral of conviction,” “deferral of prosecution,” and “nolo prosequi” in a U.S. state do not equate to a conviction in Canada. The greatest opportunities for avoiding criminal inadmissibility often exist before a foreign national is convicted where a foreign national is negotiating a plea bargain.

Where a foreign national is criminally inadmissible to Canada, it is important to consider eligibility for criminal rehabilitation. Deemed rehabilitation applies to an indictable offense where 10 years have elapsed since the day of completion of the sentence, whereas for summary conviction offenses, the period is 5 years. For rehabilitation upon application, a foreign national must wait to apply until at least 5 years from the time the last component of the sentence was completed, whether it was a fine, imprisonment, parole, probation period, or driver’s license suspension.

It may be possible for an otherwise criminally inadmissible foreign national to apply for a temporary resident permit to visit Canada, if a justifiable reason to visit Canada exists and the individual is unlikely to reoffend. The application should include substantial supporting documentation.

For more information, see “Criminal Inadmissibility Under Canadian Immigration Law,” available at http://gombergdalfen.ca/publications/Criminal_Inadmissibility.pdf.