November 30, 2014
Pro-Link GLOBAL has reposted this blog with permission from the author, Mark Holthe, Partner at Holthe Tilleman LLP.
UPDATE: December 4, 2014 – CIC has now released a series of questions and answers that provide further insight into some of the areas of uncertainty addressed in my blog below. The Q&As can be accessed here. CIC also published here the proposed Regulations that provide a breakdown of how candidates will be assessed for selection under the Express Entry system.
I will be providing updated information shortly regarding the clarification now provided regarding the Express Entry program. As such, some of the questions I posed below have now been answered, and the suggestions and strategies listed below may now change. Stay tuned for ongoing blogs that will attempt to shed further insight on the Express Entry process as it is released.
The new Express Entry system for managing the permanent resident process in Canada for skilled workers will be launched in January of 2015. We have know the program was coming for over a year now, but with only one month remaining until its release, how much do we really know about it?
There are probably over 100 articles, blogs, and newsletters currently being published online attempting to explain what will happen come January 2015. Most of these articles provide generic summaries of the basic information released to date by Citizenship and Immigration Canada. If you are wondering where this information is located, click here and you will be taken to the official CIC “Express Entry” website. If you want to obtain the latest information being released by CIC as we approach the launch of “Express Entry”, you can sign up here to receive e-mail updates. There…..now you have the inside track too!
These two direct CIC sources will be just as valuable to you as probably 95% of the articles, blogs, and newsletter being generated by authorized representatives (and ghost consultants as well I guess) across the country clambering to get in line to convince you that they are the new experts on Express Entry and that they somehow have the inside track to the inner workings of the program and are ideally situated to represent you in preparing and filing your online Express Entry profile.
Express Entry at the 10,000 Foot Level
I recommend that you review the step by step guide provided by CIC on how long the program will work at the 10,000 foot level. They have some really nice infographics that spell things out so that pretty much anyone can understand. The program can be summed up in essentially four bullet points:
1. Candidate completes and submits an online Express Entry profile.
2. CIC gives the highest ranking candidates an Invitation to Apply (ITA) for PR status through one of the existing PR programs.
3. Candidate has two months to file that complete PR application online to CIC.
4. CIC approves the PR application within 6 months.
Let me cut to the chase. Although generic information can be helpful, it does not add much value for people needing real answers and direction as to the impact this new Express Entry program will have on them and their “real life” chances of qualifying for permanent resident status in Canada. I am no different than other immigration lawyers and consultants who want to set up a paid consult with you to convince you that they know what they are doing, that they are someone you can trust, and that you should retain them to guide you through the process for a fee.
However, what I am going to do differently is provide you with enough practical suggestions and direction in this blog that you can actually make some informed decision as to whether or not you will qualify under the Express Entry process.
With this being said, it is probably an appropriate time to throw out the standard disclaimer that: “The content contained in this blog is provided for general information purposes only and is not to be construed as legal advice. Should you require specific guidance, contact an immigration lawyer like me and fork over the $100 for a 30 minute consult so that I can actually give you legal advice you can rely on.“
So What Do We Think We Know about Express Entry?
1. No more “first in first out” processing– candidates will be given an ITA if the government feels they will be the most likely to succeed economically. This translates into only candidates with an approved job offer (in most cases, an approved “Skilled” LMIA) will be selected. However, there may be a loop hole for those first out of the gate. I say “may” because we are not 100% sure; however, TFWs in Canada working on LMIA exempt work permits (NAFTA, Intra-company Transfers, IEC etc.) may rank high enough without an LMIA initially because there will not be sufficient numbers of LMIA based TFWs to fill all the spots.
HELPFUL HINT: if you are working in Canada on an LMIA exempt WP, get your act together now and start preparing to submit your profile immediately upon the launch of the program. You might just get drawn.
2. Express Entry will only be available to “Skilled Workers” – there does not seem to be any aptitude to allowing low skill workers into the process. Therefore, if you are a “low wage AND low skilled” TFW in Canada, you will likely never be drawn. However, remember that some “low wage” LMIA based TFWs may still be selected because their position is considered “high skilled” for CIC purposes. The fact ESDC went with a “low/high wage” distinction for WPs when CIC has kept the traditional “low/high skill” distinction for PR only complicates the matter for TFWs. Essentially, when applying through Express Entry, a food service supervisor or retail trade supervisor may be on a “low wage LMIA” and still be able to qualify for Express Entry because the positions are considered Skilled for the purposes of EE.
HELPFUL HINT: We believe there will no longer be a banned occupation list within the CEC program following an Express Entry ITA. Therefore if you are a cook, food service or retail sales supervisor etc., you may be able to hustle and get your application in quickly and make the EE cut before you cap out on April 1, 2015.
3. With electronic filing, CIC will show no mercy with incomplete applications– in the past, CIC was willing to allow some deficiencies within the applications and allow applicants the ability to update incomplete materials after they were submitted. It is our understanding that those days are now long gone. Any incomplete PR application will be rejected. This has significant ramifications for individuals who just barely made the EE selection cut only to find themselves back in the pool because their PR application was bounced because the applicant forgot to include a birth certificate.
HELPFUL HINT: Never file your application without having someone you trust review it for completeness. I guess now is the time for another shameless plug for my firm as we offer an application review service at a reduced rate for our clients where x-immigration officers (myself included) will review your application to make sure it has been properly prepared and complete before you file. This service is available for both the creation of your “Profile” as well as the PR application itself. Details can be found on our website].
4. Don’t submit your “Profile” unless your language testing and credential assessments are complete– we suspect that CIC will not want applicants to submit their original language test results and educational assessments at the pool stage. As such, some may be tempted to submit a Profile in “anticipation” of receiving these documents.
HELPFUL HINT: if you value your opportunity at obtaining PR status in Canada, never misrepresent anything on your application as it will most assuredly come back to bite you if you are selected and are unable to get the language results or educational assessments done within the narrow 60 days window CIC gives candidates to submit their PR applications. You are better off to wait until they re received so that you have them in hand when you file your “Profile”. If you are drawn, you will be very grateful you had.
5. PNP nominees will have the option of using the Express Entry Pool for faster processing– With current PNP processing times sitting at approximately 17 months with CIC, who would not want to consider Express Entry with the lure of approval in under 6 months? However, it must be remembered that qualifying under a PNP for nomination does not necessarily mean Express Entry is a slam dunk. It is our understanding (man do I say this a lot), that PNP nominees must still meet the criteria of the FSW, FST, or CEC programs in order to qualify at the PR stage. Thus if you have gone through the PNPs to avoid language testing (the AINP Skilled Worker Employer-driven Stream does not require English language assessments) if you want the faster processing through EE, you will have to write one of the language assessment tests.
HELPFUL HINT: PNP processing times have risen in a number of Provinces. Because of this, it is possible that you could file the EE application and have the entire PR process approved before the PNP nomination has been granted. Regardless, there is no law against filing multiple applications, so do not hesitate to submit a PNP application if you qualify at the same time in which you have your EE Profile sitting in the Pool waiting to be drawn. With the uncertainty of the PR process in Canada, covering all your bases is sound advice. Regardless of CICs distain for this practice.
6. Candidates will be drawn from the Express Entry Pool every two weeks– Every two weeks, CIC will publicize the scores of people given ITAs. The pass market will be in a constant state of flux. Candidates will have an opportunity to compare their perceived score with that of the listed pass mark and take whatever remedial steps are needed to boost their profile so they may have a better chance of being selected. If a candidate has not been drawn after 12 months, they are bounced out of the pool and instructed to re-apply.
HELPFUL HINT: Because of the inherent problems with uploading new information to CICs existing online filing system, some candidates may consider voluntarily pulling their Profile from the pool in order to bolster their qualifications and then resubmitting. However, if there is a marked improvement in the new online filing portal creating a meaningful way of “strengthening” a previously perfected application without having to pull it and refile, this would obviously be the best choice.
7. Consider asking your Employer to request a Permanent LMIA to support your Express Entry Profile before turning to the traditional Work Based LMIA– there are distinct advantages for doing this if you are currently working in Canada on an LMIA exempt work permit such as NAFTA Professionals, Intra-company Transferees, International Experience Class and Spousal work permits. The advantages to filing a PLMIA are no processing fees and 10 days processing. However, please note that the 10 day processes from the date they decide to look at your application and not the date you filed the application with ESDC.
HELPFUL HINT: Do not be tempted to file a PLMIA to support an LMIA based work permit. Although the faster processing time and no processing fee is very attractive, ESDC will not take too kindly to this abuse of process. Interestingly enough, it would appear that maybe the regulatory authority to prevent someone from doing just that is not in place and as such a person could technically obtain a PLMIA to support a work permit extension filed through CBSA at the POE or inland through CIC. However, I would not recommend testing this theory if you have plans of remaining in Canada permanently.
8. Consider refiling a PR application under Express Entry in January 2015– There has been a fairly sizeable rush to get PR applications filed through the traditional programs before the rules change in January 2015. I continue to feel this is a wise decision, especially for foreign workers in Canada on LMIA exempt work permits. No one knows for certain how the ranking system will work and CIC has been very tight lipped regarding specific details of the selection criteria, therefore it is always best to take advantage of a PR program when you know you qualify and sort everything out later if you find another program more favourable.
HELPFUL HINT: If you do choose to refile, never ever withdraw an application you have previously submitted to CIC unless you are being forced to do so. In other words, there is nothing preventing you from entering your “Profile” into the Express Entry Pool when you continue to have a previously submitted PR application in a separate queue.
So What Do We Know We Don’t Know about Express Entry?
1. Selection Criteria– At this stage, only CIC knows the exact criteria they will use in ranking candidates. We pretty much know that if you are working in Canada on an LMIA based “Skilled” work permit, you are as close to being guaranteed an ITA as it gets. However, other than that, we really have no clue how CIC will assess language, education, work experience, age, etc. However, there have been some indications that more information regarding the selection criteria may come at the beginning of December. We shall see.
2. Online Filing Portal– we have no clue what this will look like and whether or not it will be as glitchy and unreliable as the current model. CIC has assured us that it will be better than previous incarnations; however, once again, we shall see. We do know that there will be a slick representatives portal which will definitely make our lives easier within Holthe Tilleman LLP. The current practice of uploading forms may also be history in favour of web based fillable fields. This should be interesting for all of the immigration lawyers and consultants out there using one of the off the shelf case management software suites on the market. High volume practices are going to be in for a little challenge now that clients will no longer be able to complete questionnaires that automatically populate into file ready forms.
3. Exact Role of Employers– we really do not know how employers will interface with this process aside from submitting a regular or permanent LMIA on behalf of the candidate to support Express Entry. CIC states that Canadian employers will have a direct role in recruiting economic immigrants. However, aside from the suggestion that an “e-Harmony” type matching system will initially exist within the current Job Bank to magically connect unemployed Canadians with Canadian employers the information ends here.
4. How Difficult the Process Will Actually Be– As with any new program change undertaken by CIC, prior experience preparing and filing CIC applications is going to be less valuable to someone seeking to hire an immigration lawyer than finding one that has actually taken the time to sort through CIC’s entirely new maze of sporadically disseminated information on the Express Entry program and taken steps to adjust their practices to conform to the new reality. One thing is certain… if qualified candidates do not act quickly and at the same time take greater care in perfecting their applications, opportunities for PR status in Canada will be lost and with the direction our current government is heading, lost opportunities may never come again.
Partner, Holthe Tilleman LLP
Mark is an ex-immigration officer with Citizenship and Immigration Canada having worked on the Canada/US border. He is currently serving as an Executive Member of the National Immigration Law Section of the Canadian Bar Association and Immediate Past-Chair of the Alberta South Immigration Section of the CBA. He is a frequent speaker and educator on Canadian Immigration Law and Policy and regularly offers seminars and workshops to lawyers, consultants, and human resource personal related to the Temporary Foreign Worker Program and the transitioning of foreign workers to permanent resident status in Canada.