New immigration program aims to alleviate staffing woes

On September 17, 2008, the Ministry of Citizenship and Immigration released the Canadian Experience Class, a new program intended to make the immigration system more responsive to Canada's labour market needs. The Canadian Experience Class (CEC) enables temporary foreign workers who meet certain criteria to apply for Canadian permanent residence. The CEC comes as part of a series of initiatives the ministry has fashioned to aid employers in recruiting and retaining skilled staff.

Those meeting the CEC criteria have:

  • temporary resident status in Canada at the time of the application;
  • two years of skilled, professional or technical work experience; and
  • moderate or basic language skills, depending on occupational skill level.

The CEC program applies to a broad range of professions listed under Skill Type O (managerial occupations), Skill Level A (professional occupations) or B (technical occupations and skilled trades) of the Canadian National Occupation Classification. The class therefore includes foreign nationals employed in any executive, supervisory or professional capacity, as well as IT professionals, engineers, technicians, and even some construction sector jobs such as plumbers, masonry workers, and carpenters.

All of these candidates can now by-pass the more burdensome 'point system' for immigration, which requires an applicant to meet a certain number of points in order to secure permanent residence. Pursuant to CEC guidelines , as long as candidates meet its minimum requirements, they secure permanent residence, benefit from expedited application processing, and even secure permanent residence status at an office inside Canada, thereby avoiding the usual trek to the border for the purpose of processing.

The benefits
What does this all mean for HR staff? To begin with, the program could be a blessing or a curse, depending on the employer's objectives. On the one hand, the program has the potential for developing employee retention. It is increasingly the case that employers require permanent staff in Canada but must look abroad for staffing solutions.

Currently, Canadian immigration authorities and Service Canada provide approvals only to certain qualified foreign employees. Following a fixed period,  the employee is required to return overseas. Intra-company transferee executives, managers and specialized knowledge workers, for example, are allowed to hold work permits for a maximum of 5-7 years.

Even where work permits are provided indefinitely, foreign nationals are hard pressed to remain in Canada without certainty as to their long-term status and, in many cases, without their families. As a result, an employer may eventually lose the investment it has made in that employee and must begin the recruitment and training process anew, with consequent time and asset losses.

With the CEC class, however, these professionals can now apply for and receive Canadian Permanent Residence, thereby retaining their employment permanently. Not only that, but by virtue of meeting the CEC qualifications, these candidates also jump to front of the line in terms of processing. Next to the Provincial Nominee Program - which is not always a viable option given its province-specific requirements and occupational restrictions - the CEC program offers these employees the fastest processing times possible to secure permanent residence in Canada.

Some industries may stand to gain a particular advantage from the program. Mass suppliers and manufacturers require skilled machinists, technicians and operators, while construction companies are in need of skilled tradespersons. To Brian Neufeld, GM of Engineered Air, a massive design and manufacturing operation with offices throughout North America, the CEC could not be timelier. "We don't have a history of manufacturing and production in Alberta, so a really essential drawback is that a blue collar class, a working class, simply doesn't exist …we could advertise forever and the amount of people coming in would still be almost negligible".

HR professionals in such companies find themselves unable to secure  permanent staffing solutions because the employees in question are predominantly foreign nationals who would, at some point, have to return to their home country because they do not qualify for Canadian permanent residence under the 'points system' for immigration. The employees may possess the requisite occupational skill level required by the employer, but lack the combination of age, academic education and advanced language skills required to secure permanent residence under the current 'points system' for federal skilled worker immigration.

All of these applicants, however, can be permanently retained by the Canadian employer if they apply for permanent residence under the new CEC program following two years of employment in Canada. HR managers able to advise on CEC options will therefore provide a twofold benefit to their client: guaranteed permanent staffing solutions, and the elimination of the financial drain caused by renewing work permits and persistent reliance on recruitment agencies.

What remains to be seen is whether the immigration minister has anything up her sleeve to address the needs of businesses employing low-skilled tradespersons. Where companies are not interested in off-shoring their manufacturing, the shortage of such employees is problematic, to both the employer and our economy. At the end of the day, says Neufeld, "someone has to be building something, its important for this country."

The drawbacks
On the other hand, CEC can disrupt corporate exchange programs where the employer's objective is to provide foreign nationals with the opportunity to train in Canada for the purpose of learning advanced managerial, technical, or structural processes and thereafter implement these processes in overseas corporate offices. Where a work permit of two years or more is issued under such corporate exchange programs, the foreign national may opt, at the end of two years of employment in Canada, to apply for permanent residence via the CEC program and remain here, as opposed to returning overseas to execute the processes learned in the Canadian office.

As noted above, employee retention is also an issue in today's competitive HR market, as receipt of permanent residence leads to increased job mobility, enabling employees to take their training to other Canadian employers, including the competition Under the 'points system' the foreign employee benefited from an employment letter issued by the Canadian offices of the employer, which indicated that the Canadian office would retain the employee for an indeterminate period of time upon receipt of permanent residence. In this way, HR staff often became aware of who intended to apply for permanent residence and could plan accordingly.

Under the CEC program, however, employees may apply for permanent residence without a letter of commitment of indeterminate employment by the employer. Furthermore, in the case of international employee training programs, losing such employees to the competition will inevitably become the case if employees secure Canadian permanent residence and expect to remain in Canada. International training placements by definition have a termination date, since an employer's objective in creating such programs is to train employees for the purposes of overseas corporate growth, not for the purpose of centralizing the company's foreign employees in its Canadian offices.

All of the above risks should be factored in by HR professionals and their employers when drafting international training program or transfer contracts and making related decisions.

Stakeholders agree that the program could benefit from fine-tuning, including complete inland processing - some applicants may still need to travel to the U.S. in order to attend an interview; and true priority processing - the program will not take priority over Provincial Nominee and Quebec cases. On the upside, the program is also available to foreign student graduates who have successfully completed a program of study of at least two academic years in Canada and one year of skilled, professional or technical work experience in Canada. The CEC program, when coupled with CIC's decision to extend Post-Graduate Work Permits for foreign graduates to three years, provides an additional level of security to HR managers who need to retain Canadian foreign graduates on staff.

Overall, the CEC program provides HR staff with yet another tool to add to their arsenal of hiring practices. The CEC comes as part of a series of initiatives the Ministry of Citizenship and Immigration has fashioned to aid employers in acquiring and retaining skilled staff. These include the development of the Provincial Nominee Program, the expansion of the Temporary Foreign Worker Program and the Post-Graduation Work Permit Program for students, as well as the implementation of a Foreign Credentials Referral Office (FCRO). The timeliness of these programs cannot be overemphasized - the Conference Board of Canada predicts that by 2020, Canada will suffer a staggering labour shortage of nearly 1,000,000 people. Ontario alone would require 360,000 workers by 2025 and more than 564,000 by 2030. Shortages are already keenly felt in Alberta and Saskatchewan, and are increasingly present throughout the rest of Canada. In light of these predictions, the above programs are bound to become standard fare with knowledgeable HR professionals.

Veronica Zanfir, BA (Hons), LLB is a senior associate lawyer at Bomza Law Group. For more information on the above programs you may contact her at [email protected].