Registration

SOR/2008-254 September 4, 2008

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations (Canadian Experience Class)

P.C. 2008-1596 September 4, 2008

Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsections 5(1) and 14(2) and section 26 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Canadian Experience Class).

definitions	REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (CANADIAN EXPERIENCE CLASS)
	AMENDMENTS
	1. Paragraph 70(2)(b) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:
	(b) the economic class, consisting of the federal skilled worker class, the transitional federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the Canadian experience class, the investor class, the entrepreneur class, the self-employed persons class, the transitional federal investor class, the transitional federal entrepreneur class and the transitional federal self-employed persons class; and
	2. The portion of section 73 of the Regulations before the definition “educational credential” is replaced by the following:
Definitions	73. The following definitions apply in this Division, other than section 87.1.
	3. The Regulations are amended by adding the following after section 87:
	Canadian Experience Class
Class	87.1 (1) For the purposes of subsection 12(2) of the Act, the Canadian experience class is prescribed as a class of persons who may become permanent residents on the basis of their experience in Canada and who intend to reside in a province other than the Province of Quebec.
Member of the class	(2) A foreign national is a member of the Canadian experience class if (a) they (i) have acquired in Canada within the 24 months before the day on which their application for permanent residence is made at least 12 months of full-time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, and have acquired that work experience after having obtained (A) a diploma, degree or trade or apprenticeship credential issued on the completion of a program of full-time study or training of at least two years’ duration at a public, provincially recognized post-secondary educational or training institution in Canada, (B) a diploma or trade or apprenticeship credential issued on the completion of a program of full-time study or training of at least two years’ duration at a private, Quebec post-secondary institution that operates under the same rules and regulations as public Quebec post-secondary institutions and that receives at least 50 per cent of its financing for its overall operations from government grants, subsidies or other assistance, (C) a degree from a private, provincially recognized post-secondary educational institution in Canada issued on the completion of a program of full-time study of at least two years’ duration, or (D) a graduate degree from a provincially recognized post-secondary educational institution in Canada issued on the completion of a program of full-time study of at least one year’s duration and within two years after obtaining a degree or diploma from an institution referred to in clause (A) or (C), or (ii) have acquired in Canada within the 36 months before the day on which their application for permanent residence is made at least 24 months of full-time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix; and (b) they have had their proficiency assessed in the English or French language by an organization or institution designated under subsection (4), or have provided other evidence in writing of their proficiency in either language, and have obtained proficiencies for their abilities to speak, listen, read and write that correspond to benchmarks, as referred to in Canadian Language Benchmarks 2000 for the English language and Niveaux de compétence linguistique canadiens 2006 for the French language, of (i) in the case of a foreign national who has acquired work experience in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A of the National Occupational Classification matrix, (A) 7 or higher for each of those abilities, or (B) 6 for any one of those abilities, 7 or higher for any other two of those abilities and 8 or higher for the remaining ability, and (ii) in the case of a foreign national who has acquired work experience in one or more occupations that are listed in Skill Level B of the National Occupational Classification matrix, (A) 5 or higher for each of those abilities, or (B) 4 for any one of those abilities, 5 or higher for any other two of those abilities and 6 or higher for the remaining ability.
Application	(3) For the purposes of subsection (2), (a) full-time work is equivalent to at least 37.5 hours of work per week; (b) any period of self-employment or unauthorized work shall not be included in calculating a period of work experience; (c) the foreign national must have had temporary resident status during their period of work experience and any period of full-time study or training; (d) the foreign national must have been physically present in Canada for at least two years of their full-time study or training; (e) any period during which the foreign national was engaged in a full-time program of study or training in English or French as a second language — and any period of full-time study or training in respect of which study or training in English or French as a second language amounted to most of the full-time study or training — shall not be included in calculating the period of full-time study or training; (f) any period of study or training during which the foreign national was a recipient of a Government of Canada scholarship or bursary, or participated in an exchange program sponsored by the Government of Canada, a purpose or condition of which was that the foreign national return to their country of origin or nationality on completion of their studies or training shall not be included in calculating the period of full-time study or training; and   (g) in the case of a foreign national whose work experience is referred to in both subparagraphs (2)(b)(i) and (ii), the foreign national must obtain a proficiency in the English or French language that corresponds to the benchmarks required for the skill type, as set out in subparagraph (2)(b)(i) or (ii), in which the foreign national has acquired most of their work experience.
Designated organization	(4) The Minister may designate organizations or institutions to assess language proficiency for the purposes of this section and shall, for the purpose of correlating the results of such an assessment by a particular designated organization or institution with the benchmarks referred to in subsection (2), establish the minimum test result required to be awarded for each ability and each level of proficiency in the course of an assessment of language proficiency by that organization or institution in order to meet those benchmarks.
Conclusive evidence	(5) The results of an assessment of the language proficiency of a foreign national by a designated organization or institution and the correlation of those results with the benchmarks in accordance with subsection (4) are conclusive evidence of the foreign national’s proficiency in an official language of Canada for the purposes of this section.
	COMING INTO FORCE
	4. These Regulations come into force on September 17, 2008.

REGULATORY IMPACT
ANALYSIS STATEMENT

Executive summary

Issue

With nearly full employment, an aging population and skill shortages, there is a need to ensure Canadian employers can access the skills they need to sustain Canada’s economy over the longer-term. Immigration contributes to labour force growth and brings in the talent that employers and communities need. At the same time, global competition for skilled workers is intensifying; as a result, Canada’s immigration program must evolve to ensure that Canada remains a destination of choice.

Currently, the Federal Skilled Worker Program (FSWP) is the main avenue for economic immigrants to Canada. The FSWP is facing challenges that are hampering our labour market responsiveness and our ability to compete internationally for skilled workers. Those who applied prior to Bill C-50 changes (i.e. prior to February 27, 2008) will experience long wait times due to the backlog, which is frustrating to both applicants and employers. Furthermore, the FSWP’s emphasis on formal education limits its responsiveness to labour market demand for skilled tradespersons such as construction workers. Moreover, successful applicants are not fully meeting the labour market needs of communities outside the three major metropolitan areas, due to highly concentrated settlement patterns.

As a result, employers are increasingly turning to the Temporary Foreign Worker Program (TFWP) to meet their human resource needs. Although the TFWP aims to address temporary labour shortages, temporary foreign workers are now staying in Canada longer, suggesting that employers are using this workforce to meet longer-term needs.

Consequently, in response to the challenges and pressures described above, the Government is implementing the new CEC to contribute to a more responsive and attractive immigration system that will help sustain economic growth over the longer-term.

Objectives

The CEC has been designed to

• Attract more temporary foreign workers and foreign students to Canada and retain them as permanent residents, thereby enhancing Canada’s ability to compete against countries like Australia that have similar programs.
• Encourage more dispersed settlement patterns, thereby better meeting regional labour market needs, as foreign students and TFWs are more geographically dispersed than FSWP immigrants.
• Improve immigrant outcomes by selecting those best positioned for successful labour market integration. Evidence shows that immigrants with Canadian study and/or work experience who have good official language skills integrate into the Canadian labour market more successfully than immigrants without such characteristics. The Government is working on issues around foreign credential recognition with partners. The CEC should assist in meeting these challenges.

Description

Eligibility

To be eligible, all applicants must have had work experience in one or more occupations listed in the National Occupation Classifications (NOC) matrix at Skill Type 0 (management occupations), Skill Level A (professional occupations), or Skill Level B (technical occupations and skilled trades). Lower-skilled occupations (NOC Skill Levels C and D) are not eligible.

All applicants must have been lawfully admitted to Canada to work or study, and must have had valid temporary resident status throughout their work and study experience in Canada. Applicants may apply while in Canada as long as they maintain their legal temporary status or may apply from overseas. This policy is in response to comments made during the pre-publication period, and will make the CEC more accessible to precisely the highly skilled, and highly mobile, applicants Canada would like to attract and retain.

Refugee claimants, for whom an avenue to permanent residence status already exists, do not qualify under the CEC. Also, recipients of select Government of Canada awards for foreign students do not qualify for the CEC as one of the primary objectives of those programs is that these students return to their own countries to apply the skills and experience that they acquired in Canada.

Selection

The CEC will select on a pass/fail model, not a points system, as under the FSWP. The selection criteria to qualify for the class are tied to determinants of successful labour market integration: possession of a Canadian credential (only in the case of foreign graduates), Canadian skilled work experience, and official language proficiency.

The amended Regulations create two distinct streams with different minimum requirements for each selection criterion; one for recent graduates, and the other for temporary foreign workers. Graduates need to obtain 12 months of legal, full-time or full-time equivalent work experience within the 24-month period prior to making a CEC application; obtain a Canadian credential by studying in Canada full-time for at least two academic years, and; meet the minimum language requirements for their occupation skill level. Temporary foreign workers will need to obtain 24 months of legal, full-time or full-time equivalent work experience in Canada within a 36-month period prior to making a CEC application and meet the minimum language requirements for their occupation skill level.

With regard to minimum language requirements, applicants with qualifying Canadian work experience at NOC 0 or A will need to demonstrate moderate proficiency (i.e., Canadian Language Benchmark or Niveaux de compétence linguistique canadiens — 7) in English or French. Applicants with qualifying Canadian work experience at NOC B will need to demonstrate basic proficiency (i.e., CLB/NCLC 5) in English or French. The Regulations already refer to basic and moderate language proficiency; the requirements for CEC were set at the higher level within these ranges of proficiency.

Regulatory and non-regulatory options considered

The rules governing the selection of immigrants are contained in the Regulations; therefore, the creation of a new class of immigration requires regulatory change. As such, there are no alternatives to regulatory amendments.

Benefits and costs

Cost-Benefit Statement		Base Year: 2008-2009	Five Years	Final Year: 2013-2014	Total (PV)	Average Annual
A. Quantified impacts $ (million)
Benefits *	CIC		24.78			4.96
Costs	CBSA/CSIS	26.60 (and 7.00 for 2007-2008)
Costs **	CIC		46.90			9.38
Costs ***	CIC	1.49
Net costs to CIC			58
B. Quantified impacts in non-$ — e.g. risk assessment
Positive impacts	1) Canada will be better able to attract temporary residents. 2) Canada can better compete for skilled workers. 3) Improved immigrant outcomes.					1) Estimated 30 000–35 000 applications; 2) 25 000 CEC successful applicants; and 3) Estimated annual income 10 years after landing: (a) $60,000 with in-Canada study and experience, and (b) without above criteria $42,000.
Negative impacts
C. Qualitative impacts
Applicants under CEC will require fewer settlement services than current immigrants as they will have been in Canada for a minimum of two years and they will be proficient in English or French. They can apply and be granted permanent resident status in Canada without leaving the country. Applicants under CEC will have Canadian credentials, which in turn will alleviate the issue of foreign credential recognition. Furthermore, temporary foreign workers applying under CEC will only be assessed on their Canadian work experience. Positive impacts on productivity and competitiveness of business (long term) include the following: labour market should face fewer shortages, more workforce remaining in Canada and thus, no need to re-train, and higher productivity as CEC workers will already be skilled in the sector and proficient in an official language.
* Processing fees are the only benefits that will be allocated to the Consolidated Revenue Fund. ** Processing incremental temporary resident applications overseas and in Canada. *** Includes only start-up costs for Call Centre/Kits and Forms/IT Changes/Communications.

Rationale

Education requirement

Since pre-publication, the Regulations have been refined to specifically exclude English or French as a Second Language (ESL or FSL) studies as qualifying for the educational requirement of the CEC. Although these programs could help an individual’s prospects in the labour market and complement their studies, their focus is only on language training. Therefore, including ESL and FSL certificates would not support the intent of the CEC which is to select immigrants who have attained Canadian academic or vocational training.

It should also be noted that adjustments have been made to some of the terminology used in the pre-published regulations to ensure greater consistency with those used in the educational community. Minor wording changes in qualifying educational credentials include: acceptable credentials from provincially “recognized” post-secondary institutions, instead of “accredited”; and a “graduate” degree, as opposed to a “postgraduate” degree. These technical changes are intended to reduce potential confusion.

Work experience requirement

Full-time or full-time equivalent work experience is defined as 37.5 hours per week. It is understood that full-time work is, at times, defined differently in other contexts; however, 37.5 hours is consistent with other sections of the IRPR, specifically 80(7) and 88(1)(a).

Language requirement

The regulations pertaining to minimum language requirements have been significantly amended since pre-publication. The intent of the pre-published regulations was to allow for an average language proficiency in the four abilities: speaking, listening, reading, and writing. However, it has since come to light that the approach taken was problematic for two primary reasons. First, the Canadian Language Benchmarks (CLB) in English and Niveaux de compétence linguistique canadiens (NCLC) in French are only descriptive scales and the levels attained in each ability cannot be added as if they were scores. Second, while the pre-published regulations indirectly allowed for averaging, they did not prevent wide trade-offs between the four abilities (i.e. allowing strong abilities to compensate for very weak ones).

Therefore, to ensure greater simplicity, fairness and accuracy, the regulations on minimum language requirements were amended to remove the potential for significant trade-offs between the four abilities by establishing minimum standards, while still allowing for some compensation.

The differential minimum language requirements, based on skill level, remain the same. This element of the program design is intended to facilitate the transition of skilled tradespersons (NOC B occupations) who may not need the level of proficiency typically required by other skilled workers (NOC 0 and A occupations). Consultations with language experts, feedback from professional bodies and an assessment of international experiences support a conclusion that moderate range proficiency for NOC 0 and A (defined as CLB 7) is appropriate to ensure that workers are easily integrated into the labour market and can successfully perform a skilled job. Similarly, the basic range proficiency for NOC B (defined as CLB 5) is appropriate to ensure tradespersons are able to integrate into their workplace.

Consultation

Process

Formal stakeholder consultations were conducted from December 2007 to February 2008. The Department distributed a discussion paper describing the proposed CEC and invited external stakeholders to participate in consultation sessions and/or to provide their comments in writing. The Department reached out to provinces and territories and a total of 221 external stakeholders, including sector councils, employers, educational institutions, organized labour, worker’s rights groups, municipalities, associations of immigration lawyers and consultants and francophone communities. The consultation sessions took place in Moncton, Vancouver, Edmonton, Toronto and Ottawa and 128 stakeholders participated. Citizenship and Immigration Canada (CIC) also received 40 written submissions.

Additionally, the proposed regulations were pre-published in the Canada Gazette, Part I, on August 9, 2008, and were open for public comment for 15 days. The Department received 37 submissions with varying degrees of comments and suggestions from immigrant representatives, provinces, industry associations and individuals. As a result, changes have been made to the way in which minimum language requirements are assessed, the requirement for temporary resident status at the time of application, and the need to provide clarity and refinement of terminology in various sections.

Stakeholder views

During the consultation sessions, support for the intent of the CEC was virtually unanimous; however, many stakeholders felt that some adjustments were needed to better reflect labour market realities and make the CEC more accessible. The Regulations integrate several suggestions brought forward during the consultation sessions: for example, removing the universal language testing requirement, relaxing the language requirements to attract skilled trades, eliminating minimum levels of education in the foreign worker stream and providing greater flexibility in interviews overseas. However, some suggestions were not adopted because they would have compromised the objectives of the CEC or the integrity of the immigration program.

A select group of stakeholders expressed a desire to see the CEC opened up to lower-skilled workers (NOC levels C and D), with others suggesting that all temporary foreign workers should have the option of permanent residence. However, it is important to note that many of these workers are filling temporary needs that do not translate into a permanent labour market need. Furthermore, low-skilled workers are more vulnerable in economic downturns and the need for low-skilled workers varies dramatically by region. Therefore, it is believed that the Provincial Nominee Program (PNP) is still best positioned to respond to specific permanent demand for lower-skilled workers.

The issue of language skills, including how these should be demonstrated, by whom and, to a lesser extent, at what level, was discussed at length.

While a number of stakeholders welcomed the differential minimum language requirements based on skill level, others suggested that the differential should be further reflected within NOC levels. Some industry organizations stated that while some NOC B occupations only need basic proficiency, others require moderate or high proficiency for occupational health and safety reasons.

The Government has chosen to allow CEC applicants the option of submitting the results of a test provided by a designated third-party language testing institution or by submitting other evidence in writing. These are the same options currently available to FSWP applicants. However, applicants are still strongly advised to provide the results of a language test as it is the most fair and transparent way of determining language proficiency. Written submissions are only recommended for applicants whose first language is clearly either English or French and who can prove that their education and work experience were in those languages.

Concerns were raised by some that the International English Language Testing System (IELTS) and the Test d’évaluation du français (TEF) are not adequately available across Canada, and some suggested that the Department accept other existing language tests. The Department’s policy is to designate any testing agency that makes a submission for designation and which meets the criteria of validity, reliability, integrity/security and availability established by the Immigration and Refugee Protection Regulations and CIC.

Currently, only IELTS and TEF have met the test of this standard. The Department has been in contact with both agencies to discuss the availability of their tests in Canada in light of the upcoming CEC. CIC is also currently reviewing submissions from other testing agencies seeking designation.

There were also some objections from the educational community to requiring graduates from Canadian post-secondary institutions to demonstrate their language ability. The Department’s position was informed by the evaluation of a similar program in Australia where a significant proportion of foreign graduates from Australian institutions were found to have inadequate language skills. This, coupled with the mounting evidence that links language proficiency with economic outcomes, confirmed the need to keep this criterion.

Education requirements were also central to the discussions, primarily—but not exclusively—with regard to the pool of temporary foreign workers. Stakeholders questioned the need, fairness and ability to verify the education requirement for the temporary foreign worker stream. Based on these comments, the Department revised its proposal and removed this requirement for the temporary foreign worker stream.

Several representatives from the education sector felt that the length of study in Canada required to qualify under the graduate stream would exclude strong potential candidates. The Department maintains that at least two academic years and a year of work are necessary for applicants in this stream to demonstrate their potential to successfully settle in Canada over the longer term.

Some education sector stakeholders objected to the exclusion of work experience prior to graduation. In order to meet the objectives of CEC, only work experience obtained after graduation will be taken into account as this experience is a better indicator of the applicant’s ability to succeed in the Canadian labour market. Work permit programs for international students are designed to give students exposure to the labour market to facilitate their job search after graduation, but are not meant to be a means of acquiring skilled work experience to qualify for an immigration class. The recent changes made to the Post Graduate Work Permit (PGWP) program (changes that resolve concerns raised during the consultations) greatly facilitate the ability of graduates to qualify for the work criteria of CEC.

Additionally, during the pre-publication period others requested that the 24-month period given to graduates to meet the 12-month work experience requirement be extended. The Department maintains that the 24-month period is appropriate and provides enough time for the applicant to demonstrate whether they are able to establish in the labour market.

Some stakeholders requested alternative interview locations for foreign nationals required to attend interviews at the Buffalo visa office but unable to obtain U.S. visas. Not realizing it was regular practice, some suggested that when interviews are necessary they be conducted at other visa offices in the United States to avoid applicants from western Canada having to travel a significant distance. Those unable to gain entry to the U.S. will have to travel to the mission serving their country of citizenship. The results of the interview will be transferred to the Buffalo visa office to be filed. This procedure is already in place in the CIC visa office network.

Some stakeholders expressed significant concerns that the dual intent provision of the IRPA may be misinterpreted by visa officers and that the expression of interest in immigration often may lead to the refusal of applications for temporary status. With the increasing convergence between the PNP and the TFWP, and with the implementation of the CEC, the issue of dual intent is likely to be encountered more frequently. CIC will reaffirm the objectives of the dual intent provision to visa officers in an operational bulletin.

Implementation, enforcement and service standards

As soon as the new program is implemented, qualifying foreign nationals will be able to apply from within Canada by sending the application to the Immigration Section of Canada’s Consulate General in Buffalo (Buffalo visa office) and be granted permanent resident status at either a port-of-entry or at a CIC local office, and will therefore not be required to leave the country as long as they maintain their legal temporary status, unless an interview is required.

For consistency in processing, all cases will be processed by the Buffalo visa office (principal applicants and dependants). Applications submitted to other missions (i.e. a foreign national no longer residing in Canada) will be transferred internally to Buffalo. Existing health, security and criminality screenings will continue to be carried out before permanent resident status is granted. To be admitted, principal applicants and dependants will have to appear at either a port-of-entry or at a CIC local office.

The CEC will respect provincial jurisdiction, including the Canada-Québec Accord; the CEC will not apply in the province of Quebec as that province is responsible for its own selection policy for economic immigration. The applicant’s province of intended residence will determine the selection process in effect. In other words, in instances where an applicant has acquired their experience in the province of Quebec, but intends to reside outside the province, they will be evaluated against CEC criteria. On the other hand, if an applicant has acquired experience outside the province of Quebec but intends to reside in the province of Quebec, they will be evaluated by Quebec in accordance with its selection criteria.

The CEC selection criteria ensure that provinces and territories are in a position to nominate temporary foreign workers and international students who graduate in Canada through their own PNP before they would become eligible to apply under the new program.

Service standards are under development and are expected to be completed and published is late Fall 2008. These service standards will be available to the public at www.cic.gc.ca.

Contact
Heidi Smith
Director, Permanent Resident Policy and Programs Development
Division
Immigration Branch, Citizenship and Immigration Canada
365 Laurier Avenue West
Ottawa, Ontario
K1A 1L1
Telephone: 613-954-4214
Fax: 613-954-0850
Email: heidi.smith@cic.gc.ca

Footnote a
 S.C. 2001, c. 27

Footnote 1
 SOR/2002-227

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