I’ve written before about the changes to the Canadian permanent residence process and the Express Entry system. We all know it’s changed. We know there is a portal. We know you enter the portal and get ranked against fellow applicants based on a variety of factors including language ability, age, education, and whether or not there has been a labour market test for the position you currently hold in Canada.
What do we know that’s different now? And how does this knowledge affect our practice?
What we know is there have been draws, and people have been selected. We know that a Labour Market Impact Assessment in hand dramatically increases the likelihood of being drawn. But we also know the minimum number of Express Entry points required has dropped with each draw; down to a mind-blowing 453 in last weekend’s draw compared to 886 in the first one in January.
The effect of this is that the LMIA is no longer the sole winning factor. People who qualified for the Canadian Experience Class who were in Canada as, say, a NAFTA professional, finally stood a chance of being drawn.
When the news of this first rolled out, many immigration lawyers, myself included, were fretting that this new system meant you absolutely had to get an LMIA in order for your client to qualify. This latest draw shows that might not be true. But it also illustrates that in the world of Express Entry unknowns, the LMIA is still the only thing you can control.
The first few draws would have realistically only pulled those individuals with LMIAs, and even at a lower level of 453 points, an LMIA means you are still at the top and going to be selected.
This focus on the LMIA, however, puts many employers in an uncomfortable position with their employees. It’s common knowledge the LMIA dramatically increases the overall points allocation, and employees want these points. Of course they do, it’s the certainty that gets them drawn from the pool. And this isn’t the time or place to argue where labour market assessments in all cases are necessary.
What we do know today is that this perception may cause stress to Canadian employers as there are a number of considerations that must be weighed before determining whether or not to seek an LMIA. And in reality, it shouldn’t be necessary.
Take for example a situation where there is an employee who has arrived in Canada as an intra-company transferee and has company knowledge and expertise that is valuable to the company and needed in Canada. This person’s overall points may be low without an LMIA, which can be unsettling to the employee. However, the government has already determined that intra-company transferees bring a significant benefit to the Canadian economy, which is why they have been exempted from the requirement of needing an LMIA to get a work permit!
To then effectively require an LMIA calls into question the significant benefit that has already been deemed to exist. For many companies, especially smaller Canadian entities, engaging in this type of recruitment can be extremely complicated and requires an enormous financial commitment, as well as resources and time — which seem unnecessary.
This becomes especially burdensome for those foreign nationals working in Canada under post-graduate work permits. They are unlikely able to qualify for LMIAs, but do not have the work history to rank well in the system. Unfortunately, under this system, they appear to effectively be shut out of the draw unless there is a draw meant to capture those applicants.
One possible solution would be to consider a draw targeting those individuals in the Express Entry system who are currently working in Canada pursuant to a post-graduate work permit. Without a targeted draw, there is little chance of selection under the current rules. Under the old system, applications for permanent residence were almost guaranteed if they had a year of qualifying work experience.
Of course, there are alternatives to the LMIA, such as getting similar points via provincial nominee programs, but not all provinces have signed on and there are still limited details available for those that have. Applicants can also increase their overall Express Entry points through education credential assessments, etc, but they do not offer the large number of points of the LMIA or PNP.
So what we do know is draws are happening, people are being selected, and the ranking level has dropped.
What we don’t know is what this means for the remaining draws. How low will the draw go? How low can it go and maintain its reputation as any sort of “filtering” system? Will the draw go back up? Is there a level where it’s not feasible that you will ever be drawn, say within the high 200s? Will there be any consideration to post-graduate work permit holders?
For immigration lawyers, it is imperative that we work with our clients, both corporate and individual, to ensure they understand the rules, the repercussions, and to answer questions that may arise as part of this uncertainty. It’s not enough to just get into the pool. Being selected takes planning and strategizing with our clients.
