Category Archive for ‘Immigration News’

Canada to Introduce electronic Travel Authorization (eTA) in April 2015by Jean-Noel Benhamou, Managing Partner

INTRODUCTION:

In April 2015, Canada will adopt an Electronic Travel Authorization (eTA) program that is similar to the Electronic System for Travel Authorization (ESTA) in the United States and the Electronic Travel Authority in Australia.  All foreign nationals who are exempt from the requirement to obtain a temporary resident visa will instead need to obtain online authorization before they fly to Canada.

Before traveling to Canada, and even before purchasing a ticket to come to Canada, travellers will be able to apply for an eTA through an online application process. The eTA application process will be online via the Citizenship and Immigration Canada (CIC) website. Applicants will be required to enter biographic, passport and background information, which may affect admissibility to Canada. An electronic system will then perform an examination that includes a risk assessment and a verification of the information provided in the application against enforcement databases. The Government of Canada asserts that the majority of applications will be approved within minutes. Applicants may be found to be inadmissible to Canada and have their eTA applications denied due to existing immigration admissibility criteria, such as criminality or fraud.

Airlines will have to provide passenger information to Canadian immigration authorities prior to boarding. If an individual who has not yet received an eTA attempts to check in, then the airline will be informed that the person is prohibited from travelling to Canada.

The changes to the regulations will establish the eTA as a requirement for entry to Canada from specified foreign nationals. The regulations also specify how applications for an eTA would be submitted (e.g., online) and how they would be processed (e.g. through an electronic system).

BACKGROUND:

CIC and the Canada Border Services Agency (CBSA) are responsible for managing the entry of foreign nationals into Canada by ensuring that applicants meet the necessary admissibility criteria, including having the proper documentation and meeting financial and security requirements. While CIC officers determine the admissibility of all visa-required foreign nationals seeking to travel to Canada, the CBSA determines the admissibility of all foreign nationals at the port of entry (POE), including verifying documents, investigating immigration violations and generally denying entry to persons who are inadmissible, for example those who constitute a threat to the health of Canadians or to the safety or security of Canada.

Under the Immigration and Refugee Protection Act, foreign nationals who are seeking to come to Canada on a temporary basis, must, before entering Canada, apply to an officer for a temporary resident visa or for any other document required by the Immigration and Refugee Protection Regulations (the Regulations). At present, this visa is Canada’s only mechanism for screening foreign nationals who intend to come to Canada on a temporary basis, in advance of travel, in order to manage migration-related risks.

The current visa framework effectively divides foreign nationals who intend to come to Canada on a temporary basis into two groups, based on the risks associated with their country of nationality: (1) visa-required foreign nationals who must undergo systematic overseas screening for admissibility before being authorized to travel to Canada; and (2) visa-exempt foreign nationals who are screened for admissibility only upon arrival at the Canadian border. Under the Regulations, foreign nationals coming to Canada on a temporary basis may be exempt from the requirement to hold a visa on the basis of their nationality, the document(s) they hold, or the purpose of their entry.

Under the current system, visa-exempt foreign nationals are not systematically screened for admissibility until they arrive at a Canadian POE. Only upon arrival are they subject to an examination during which CBSA Border Services Officers observe the applicant, examine his or her passport, check his or her name against automated databases and watch lists (which contain information regarding the admissibility of foreign nationals, including known terrorists, criminals and immigration law violators). The CBSA Border Services Officer uses the information ascertained during the admissibility examination to assess the foreign national’s eligibility for admission to Canada.

In 2012–2013, approximately 7000 visa-exempt foreign nationals arrived in Canada and were deemed inadmissible for entry at air POEs. Such occurrences cause significant expense, delay and inconvenience for foreign nationals, other travellers, the airlines and the Canadian government. Reasons for refusal can include membership in terrorist organizations; espionage; participation in war crimes or crimes against humanity; international human rights violations; membership in organized crime groups; criminality; or issues endangering public health, such as tuberculosis.

On February 4, 2011, the Prime Minister of Canada and the President of the United States issued a declaration entitled Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. As part of the agreed-upon Action Plan, the Government of Canada announced plans to introduce an eTA which would mirror the ESTA program. ESTA was introduced in the United States to screen foreign nationals that qualify under the U.S. Visa Waiver Program prior to travelling to the United States.

As a related Action Plan initiative, the CBSA is developing the Interactive Advance Passenger Information (IAPI) system which would create the capacity to provide air carriers with a “board/no board” message on all travellers, including eTA-required foreign nationals, flying to Canada prior to departure. The regulatory authorities for the IAPI initiative will be developed under a separate regulatory proposal.

DESCRIPTION:

The proposed amendments to the Regulations:

The proposed amendments will require foreign nationals from visa-exempt countries who are not exempt from doing so to apply for an eTA online, through the CIC Web site, by entering biographic, passport and background information similar to the personal information that is currently collected by a CBSA Border Services Officer at a POE in Canada. The information required by these proposed amendments will allow Canada to determine the admissibility of foreign nationals before they arrive at the border and whether their travel poses migration or security risks. It is important to note that the eTA will only apply to individuals arriving by air.  This is presumably because foreign nationals who arrive in Canada by land or sea will have already been approved by the United States under ESTA.

To ensure accessibility and provide flexibility to people with physical or mental disabilities who may be unable to access the electronic eTA application, the proposed Regulations will allow these foreign nationals to submit an application by another means that is available, such as in writing.

The proposed amendments will also set an eTA fee payable by applicants, as well as provide for a fee exemption for visa-exempt foreign nationals applying for a work permit or a study permit. Applicants required to obtain an eTA will pay a $7 processing fee, as a means to recover eTA costs, before electronically submitting the securely encrypted application to CIC. In circumstances where another application process is used, the fee will be paid when applicants submit their application.

In order to reduce the duplication of information to be provided by visa-exempt foreign nationals, the proposed Regulations will consider a visa-exempt foreign national’s application for a work permit or a study permit to constitute an application for an eTA.

The proposed amendments will establish that the eTA is valid for five years from the day on which it is issued or until the applicant’s passport or travel document expires, whichever is sooner. The proposed amendments will also provide an officer with the ability to cancel an eTA that was issued to a foreign national if the officer determines that the foreign national is inadmissible, thus providing an officer with the ability to revisit a visa-exempt foreign national’s eligibility to retain an eTA. This would include instances where a foreign national provided false information in the eTA application, where evidence indicates that a foreign national is inadmissible to Canada or where permitting the foreign national to travel to Canada would pose a security risk.

EXEMPTIONS:

The following Temporary Resident Visa-exempt foreign nationals are exempt from the eTA requirement:

http://www.cic.gc.ca/english/department/acts-regulations/forward-regulatory-plan/eta.asp

 

CANADA INTRODUCE CHANGES TO STRENGTHEN EMPLOYER ACCOUNTABILITY UNDER THE INTERNATIONAL MOBILITY PROGRAMby Jean-Noel Benhamou, Managing Partner

INTRODUCTION:

On February 9, 2015, Citizenship and Immigration Canada (CIC) published a Notice on their website announcing a significant and fundamental change to processing work permits under the International Mobility Program (IMP) which includes NAFTA professionals and intra-company transfers. Applications under the IMP do not require a Labour Market Impact Assessment (LMIA) or advertising to support a work permit application. Prior to the announced change, visa-exempt nationals submitted their work permit applications and documentation to the Canada Border Services Agency (CBSA), which typically adjudicated the application and issued the work permit immediately at the port of entry.

Effective February 21, 2015, employers intending to hire visa-exempt foreign nationals must first submit the following information to CIC in advance of the worker presenting himself (with a receipt and the completed documentation) to the CBSA Officer upon arrival, where the work permit will ultimately be issued:

  1. Employer business information via online Form IMM5802: “Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment,” including sufficient information to demonstrate that the applicant qualifies under the IMP http://www.cic.gc.ca/english/pdf/kits/forms/IMM5802E.pdf; and
  2. Payment of a $230.00 CAD employer compliance fee online.

In the same Notice, the CIC announced that, also effective February 21, 2015, a new fee applies for open work permit applicants in the amount of $100.00 CAD. This fee will be paid at the same time as the work permit processing fee and can be paid online.

EXPLANATION:

This Notice announces one of several initiatives advanced over the past few months to crack down on noncompliant employers. In June 2014, the government of Canada announced a sweeping reform of its Temporary Foreign Workers Program (TFWP), which resulted in major changes for employers seeking to hire foreign nationals. One of the changes implemented was the creation of two separate programs, namely: (1) the TFWP, for temporary employment offers requiring a LMIA and (2) the IMP, for temporary employment offers that are exempt from the LMIA process

The IMP includes, among many others, intra-company transferees, International Experience Canada participants as well as workers eligible under NAFTA. The IMP is coordinated by CIC whereas the TFWP is led by Employment and Social Development Canada. Since these changes came into force, the main focus of governmental authorities has been reforming the TFWP, while the IMP had, up until recently, remained somewhat under the radar. The goal of the announced change is to establish a legal regime under which all employers, whether they are using LMIA-exempt foreign nationals or temporary foreign workers through the LMIA process that has determined that there are no Canadians available for the job, will face the same level of scrutiny in their hiring and treatment of foreign workers.

The new employer compliance fee of $230.00 CAD is in addition to the regular work permit application fee currently set at $155.00 CAD. The employer compliance fees collected are intended to offset the cost of introducing “robust employer compliance activities featuring inspections of thousands of employers.” When an inspection finds that an employer is non-compliant, the employer could face an administrative monetary penalty, a ban from hiring foreign workers, and, in serious cases, a criminal investigation and prosecution.

Employers will be exempt from paying the new compliance fee when the foreign nationals they wish to hire are themselves exempted from the payment of the regular work permit application fee. Further, in the event the work permit application is ultimately refused or if the employer withdraws the offer of employment before a work permit is issued, the compliance fee will be reimbursed to the employer, according to CIC.

The new $100.00 CAD fee for open work permit applicants will be paid at the same time as the regular work permit application fee current set, as stated above, at $155.00 CAD. The open work permit applicant fees are intended to offset the cost of new initiatives to improve data collection on the role of open work permit holders in the Canadian labour market, as well as increased promotional activities to encourage open work permit holders to apply for permanent residence.

Foreign nationals will be exempt from paying the new fee if they are exempted from paying the regular work permit application fee. CIC has also announced that the compliance fee will be reimbursed to the foreign national if the work permit application is ultimately refused or if the foreign national withdraws his/her application. As this fee applies to work permits that are not employer specific, the main streams of the IMP that are affected by this change include the working holiday portion of International Experience Canada, the Post-Graduation Work Permit Program, spouses or common-law partners of highly-skilled foreign workers and international students, and certain foreign nationals who are already in Canada waiting for the finalization of their applications for permanent residence.

CIC has also announced that an “Employer Portal” will be put in place in July 2015 to facilitate these new changes. Once this portal is in place, employers will be expected to submit their offers of employment electronically to the CIC.

Employment Authorization For Certain H-4 Status Holdersby Oliver Branch, Of Counsel, Senior US Attorney

On February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) announced (include hyperlink below) the extension of employment eligibility to certain H-4 Dependent Spouses of H-1B nonimmigrant status holders.

The H-1B visa category, heavily utilized in the U.S., is an employment-sponsored temporary visa category available to those employed in specialty occupations by U.S. employers.  Spouses and minor children of H-1B status holders are eligible for H-4 nonimmigrant status when accompanying the primary H-1B status holder in the U.S.

Some employment-based nonimmigrant visa categories, such as the L-1 or E-2, already afford employment authorization to spouses accompanying the primary status holder in the U.S.  Over the last decade, there has been tremendous pressure placed on USCIS to extend employment authorization to other categories, including the H-4 category for spouses of H-1B nonimmigrant status holders.

USCIS’ recent announcement falls short of extending employment authorization to all spouses in H-4 status, but does extend in situations where: (1) the H-1B status holder is the beneficiary of an approved I-140, Immigrant Petition; and (2) the primary’s H-1B status has been extended beyond the six year limit based on sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Act.

In short, the announcement by USCIS will provide some relief to spouses of H-1B status holders who are in what can be an excruciatingly long wait for U.S. Lawful Permanent Resident Status.

For more information, please contact BHLG.

http://www.uscis.gov/news/dhs-extends-eligibility-employment-authorization-certain-h-4-dependent-spouses-h-1b-nonimmigrants-seeking-employment-based-lawful-permanent-residence

 

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