Tag Archives: BC PNP

Three Useful Canadian Immigration Lessons from the New BC PNP Skills Immigration Guide

Introduction

Now a couple weeks old, the BC PNP’s 2016 offerings for its Skills Immigration Programs have drastically changed the way the bulk of nominations for permanent residence occur in the Province of British Columbia.

Taking lessons from Immigration, Refugee and Citizenship Canada (“IRCC”)’s  Express Entry program and following the trend of many provinces towards an electronic application management system, BC PNP has also rolled out it’s own electronic points-based system.

This system requires that the Applicant first create a profile demonstrating they meet requirements. They will be awarded an initial score and then based on their score may automatically be eligible for selection depending on their category of application. Those who do not meet the score requirements for guaranteed invitation can stay in the pool for up to a year and may be issued a nomination if the points total goes down to the score they hold.

I won’t go into the finite details of the program. My colleague, Steven Meurrens has written an excellent post introducing the new program offerings and operation. Please see his post here.

What I want to do in this post is read between the lines a bit to see what current legal issues and policy issues we can extract from the BC PNP’s Skills Immigration and Express Entry BC Program Guide. I believe the guide really, and almost accidentally, susses out some major issues currently affecting those pursuing Canadian immigration options through employment.

For those following at home/work here is a copy of the Program Guide for your viewing pleasure here. 

A brief note that I will not be making any normative judgments or criticisms about the BC PNP program in this piece. First, I believe it is much too early to critique something that has not yet been fully tested in operation. Second, I am generally a big fan of the overall concept of using technology to speed up, enhance, and organize the immigration process for applicants. I am a big fan of the BC PNP’s dedication and initiative to eliminating processing times and reducing inventory in several of their previously oversubscribed programs. 

So without further ado, here we go:

Lesson 1: BC PNP Provides a Great Guide to Job/Career Planning for Potential Permanent Residents

Through the introduction of bonus points, the BC PNP Skills Immigration process awards additional ten (10) points to those working in jobs considered Top 100 in terms of the BC Labour Market Outlook from 2014-2024. You can read the entire report here. 

Below are screenshots of the relevant tables. showing the NOC 0, A, B, and C positions.

Top 100 jobs Top 100 jobs 2Top 100 jobs 3

This guide would be very useful for an international student or a foreign national near graduation from a B.C. high school to look at possible career paths. For each of these occupations, there may be educational requirements as well, so it is important to corresponding look at the National Occupation Classification code (corresponding to the code in the far right columns of the above chart).

Lesson 2: BC PNP Suggests that Tax/Employer/Employee Issues Will Continue to Be Immigration Barriers

a) Permanent Establishment Definition Creates Possible Exceptions to Full-Time Employee Requirement

One of the requirements for an employer seeking to use the BC PNP program is that the employer must be “permanently established in B.C. as defined by the federal Income Tax Act.” 

There is also a softer requirement that the Employer have at least five indeterminate, full-time employees (or full-time equivalents) if the employer is located within Metro Vancouver or at least three indeterminate, full-time employees (or full-time equivalents) in B.C. if they are located outside Metro Vancouver. However, this is discretionary and BC PNP may take into account a compelling business case if the nomination will generate economic benefit to B.C.

The permanent establishment angle is quite interesting and could give way to unique immigration options. Canada Revenue Agency, interpreting S. 400(1) of the Income Tax Act  does not actually require that that the company must have a fixed place of business in the province. 

In fact, if the corporation caries on business through an employee or agent it could be considered a permanent establishment if the employee or agent either:

  1. “has general authority to contract for the corporation;” or
  2. “has stock of merchandise owned by the corporation from which the employee or agent regularly fills orders received.”

The BC PNP does require that the Employer is:

  1. incorporated or extra-provincially registered or
  2. registered as a limited liability partnership in B.C. or
  3.  be an eligible public sector or non-profit employer.

According to the CRA a corporation is deemed to have permanent establishment in B.C., if the place designated in its incorporation documents or bylaw as its head office or registered office is in B.C.

My reading of the above, in addition to the fact there is no parallel requirement that the eligible Employer must be incorporated or  must be operational for a certain period of time, is that a new/young start-up company, even unincorporated and without a B.C. operating address, may have options to support a foreign worker’s nomination through BC PNP Skills Immigration.

Given the layer of discretion inherent in the language and BC PNP’s policy, it will be interesting to see how they is used and how BC PNP program officers address this possible pathway to permanent residency.

b) No Contractors and Unexplained Wages

BC PNP establishes several times in the Skills Immigration Guide that only employees qualify for nomination and that independent contractors are not considered indeterminate employees. This could also raise tax issues, as I am aware that recently there has been a hiring practice, particularly in smaller companies/start-ups, to hire what should be employees as contractors instead.

This becomes an issue even prior to creation of the offer of employment to support a potential nomination. BC PNP has also set out in its calculation of the “Minimum Income Requirement” for BC PNP registration that Family Income does not include bonuses, commissions, or profit sharing distributions. Even for those who currently hold valid work permits (many times, post-graduate work permits where there is much flexibility in hiring and wage), applicants must “demonstrate a history of earning the offered wage and a history of meeting minimum income requirements prior to submitting a registration and/or application to the BC PNP. This requirement is even more specific for the Entry level and Semi-Skilled Applicants program – which requires nine full months of evidence (likely through pay stubs).

This will be an important consideration particularly for those applicants who will be relying on international work experience, often times work within a family company, prior to applying to the BC PNP Skills Immigration program. Many times, the arrangements in these companies is very loose, not adequately recorded, and involves some sort of profit/share scenario. Individuals with immigration ambitions through skilled worker programs would be wise to seek legal counsel prior to gaining the requisite work experience used to qualify for BC PNP Skills Immigration.

 

3. Education, Language (but not Age) are Increasingly Important and Determinative Factors for Permanent Residency

The big change brought in through the new BC Skills Immigration program offerings, independent of the federal requirements already explicit in the Express Entry BC Skills Immigration programs. is that there are now language requirements for NOC B, C, D, positions and that Language now represents 30 out of the 200 possible points on the scoring system for all applicants.

My understanding that for NOC 0 and A occupations, there is no hard requirement to submit language tests but that failure to do so would cost the applicant 30 points. Furthermore, there is an added discretionary risk – both at the pre-nomination level and also at the PR Application level that an Officer (either BC PNP or IRCC) may determine an individual without requisite English skills could not perform the requirements job. Language, for all intents and purposes, is now acting as an important hurdle that several applicants will have to jump.

Second, education is becoming scrutinized more carefully. Federally, the government has been implementing several efforts relating to compliance – particularly in the field of individuals who are not actively pursuing studies while holding a study permit (now a ground for removal from Canada).

Provincially, you can see the BC PNP suggest that education, particularly diplomas and certificates that qualify one for the International Graduates stream, will be scrutinized more carefully.

They write in their guide:

Diplomas and Certificates

The bold emphasizes that only public post-secondary institutions support a nomination through the International Graduates program though there are hundred eligible DLIs (mostly private) that support study permits.

Below are a list of the 21 public post-secondary institutions that could support International Graduates and I would suggest simultaneously would be very popular for students immigrating to Canada with permanent resident ambitions:

21 Public Institutions

(Source: http://www.aved.gov.bc.ca/datawarehouse/documents/headcount.pdf)

Conclusion

The BC PNP Skills Immigration program guide, more than just a document providing information, really represents a window into the challenges and barriers all potential temporary and economic immigrants to Canada are facing. Issues such as hire-ability, employment, tax, language, and education all play a prominent role in the BC PNP Skills Immigration program and will continue to for most provincial and federal economic immigration programs down the road.

BC Re-Opened July 2nd With New Programs and Criteria

vancouver-false-creek

I apologize for the long period of no posts. Even checking twitter for #cdnimm news has become a bit of a luxury with several urgent client files on the go.

I wanted to update everybody on important changes that have been made to the BC PNP.

Note that the folowing post was co-written with (and, on that note, substantially written) by Steven Meurrens and can be found on his blog. We hope this piece serves as a good summary and breakdown of the information made available by the BC PNP. I have reposted it with his permission and ask that anybody who wishes to repost it does the same.

Introduction

On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP”) re-launched with new program requirements and processes.  The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream.

The most significant changes to the BC PNP include:

  • Introducing an online application process with an electronic payment system;
  • Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program;
  • Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap);  and
  • Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test.

Skills Immigration and Express Entry BC

The Skills Immigration is divided into the following substreams:

  • Skilled Worker
  • Health Care Professionals
  • International Graduates
  • International Post-Graduates
  • Entry Level and Semi-Skilled
  • North East Pilot Project

As well, the Express Entry BC stream is divided into the following substreams:

  • Skilled Worker
  • Health Care Professional
  • International Graduate
  • International Post-Graduate

Most of the requirements to the Skills Immigration streams and sub-streams remain largely unchanged. However, in addition to requiring that applicants apply online, the following are new program requirements:

  • In the Skilled Worker substream the BC PNP has clarified that “several years of directly related work experience” means two or more years;
  • The “Market Rate” for a position is based on an applicant’s employment and educational experience.  It is unclear whether this mean that the Low Rate on the Working in Canada website remains the threshold; and
  • Applicants with job offers in NOC B occupations must demonstrate English language proficiency at Canadian Language Benchmark (“CLB”) level 4.

The BC PNP will only be accepting 200 new Skills immigrant applications in 2015 [Update: this filled up 24 hours after it opened].  This limit does not apply to Express Entry BC, the Health Care Professional stream, or the Northeast Pilot Project.   New applications from individuals residing in Metro Vancouver are restricted to employment offers above the British Columbia median wage of $22.00 per hour.

Entrepreneur Immigration Stream

While the Skills Immigration Stream remains largely unchanged, the Entrepreneur Immigration Stream has been completely overhauled.

The Entrepreneur Immigration Stream is an expression of interest program similar to CIC’s Express Entry.  Applicants must register with the Entrepreneur Immigration Registration (“EIR”), and registrations will be ranked using a points system.  The highest scoring individuals in the EIR will be invited to apply to the Entrepreneur Immigration stream.  The BC PNP anticipates processing Entrepreneur Immigration Stream applications within 3 months.   Successful individuals will be required to enter into a Performance Agreement with the BC PNP stipulating time-frames for the completion of their business commitments.  Once the entrepreneur satisfies the terms of the Performance Agreement, the BC PNP will issue the individual a nomination certificate which can be used to apply for permanent residency.

It is important to note that the BC PNP will only accept a maximum of 200 registrations per month.

To submit an EIR, a prospective individual must meet the following requirements:

  • Be lawfully admitted in the country that they reside;
  • Not be inadmissible to Canada or have an unresolved refugee claim in Canada;
  • Have a personal net worth of $600,000.00;
  • Have either:
    • a minimum of more than three years experience as an active business owner-manager;
    • more than four years of experience as a senior manager; or
    • a combination of at least one year of experience as an active business owner-manager and at least two years of experience as a senior manager;
  • Have a minimum of two-years of post-secondary education or experience as an active business owner-manager with 100% ownership of the business for at least three of the past five years;

When registering for the BC PNP Entrepreneur Immigrant stream applicants will also need to submit short business concepts that will have to demonstrate that their proposed business meets several requirements, including:

  • that the business be an eligible business established either through starting a new business, purchasing an existing business, partnering with an existing business, or partnering with a local or foreign entrepreneur to establish a new business;
  • that the individual make an eligible personal investment of at least $200,000 in the proposed business (or $400,000 if a Key Staff member is proposed); and
  • that the business will create at least one permanent new full-time equivalent job for a Canadian citizen or permanent resident in the proposed business.

The BC PNP has introduced very stringent and complicated requirements regarding what constitutes an eligible personal investment that are extremely circumstance specific and beyond the scope of this update.

Scoring in the Entrepreneur Immigration pool is as follows:

Scoring Sections Points
    1. Experience 24
    2. Net Worth 12
    3. Personal Investment 30
    4. Jobs 36
    5. Adaptability 18
    6. Business Concept 80
Total Points Available 200

Experience points are calculated as follows:

Experience Total Duration Points
Business Owner-Manager Experience Less than 12 months 0
12 to 24 months 4
25 to 36 months 6
37 to 48 months 12
49 to 60 months 15
61 months or more 20
Senior Manager Work Experience Less than 24 months 0
24 to 48 months 4
49 to 60 months 8
61 months or more 12
The maximum score available for this section is 24.
The minimum points requirement is 8.
Individuals cannot get points for both Business Owner-Manager Experience and Senior Manager Work Experience, but rather have to choose.

Net worth points are scored as follows:

Personal Net Worth Points
Total Current Assets (cash and liquid funds) Less than $50,000 0
$50,000 to $199,999 1
$200,000 to $399,999 3
More than $400,000 6
Total Personal Net Worth Less than $600,000 0
$600,000 to $799,999 1
$800,000 to $1,999,999 3
$200,000,000 to $4,999,999 5
$5,000,000 or more 6
The maximum score available for this section is 12
The minimum points requirement for personal net worth is 1.

Eligible personal investment will be scored as follows:

Eligible Personal Investment Points
Less than $200,000 0
$200,000 to $399,999 6
$400,000 to $999,999 20
$1,000,000 or more 30
Applicants must score at least 6 points, or 20 points if they are proposing key staff, to meet the minimum requirement for this section.
The BC PNP will not consider as eligible any investment made prior to the date that an individual is invited to apply for nomination.

Jobs will be scored as follows:

Number of Full-time Equivalent  Job Positions Created and Maintained Points
Less than 1 0
1 2
2 6
3-4 12
5-6 20
7-8 28
9-10 32
11 or more 36
The maximum score available for this section is 36.
The applicant must score at least 2 points, or 12 if there is key staff.
The jobs created and maintained must pay wages that are consistent with the skill level of the position created

Adaptability will be scored as follows:

Factor Points
English language proficiency None or minimal, similar to CLB 3 and below 0
Basic understanding, similar to CLB  4 2
Intermediate and advanced, similar to CLB 5 and above 4
Education level Less than two years of post-secondary education 0
Two years or more of post-secondary education 3
Age Less than 20 0
21-39 3
40-60 4
61-64 2
65 or older 0
Business Exploratory Visits to British Columbia No 0
Yes, 1 or more years ago 1
Yes, less than 1 year ago 2
Canadian work experience, business experience, or studies from within Canada for at least 12 months No 0
Yes 5

The scoring for Business Concepts remains unclear.  12 points out of a possible 80 are based on the location of the proposed business as follows:

Population of BC Regional District Points
More than 500,000 people 0
200,000 to 500,000 1 point
100,00 to 200,000 3 points
70,000 to 100,000 6 points
60,000 to 70,000 8 points
35,000 to 60,000 10 points
Less than 35,000 people 12 points

The remaining 68 points are based on a variety of factors whose exact point allocation has not been released, and will be based on a 1,000 – 1,500 word business concept that EIR registrants must submit.  The points will be based on commercial viability, transferability of skills, and economic benefits.  Applicants must score a minimum of 32 points, based on what at this point appears to be an unpublished checklist.

As noted above, the highest ranking applicants in the EIR will be invited to apply for nomination. Those applicants that are invited to apply will need to engage a qualified supplier to review their personal net worth and accumulation funds as part of the nomination process.  Once the nomination is approved, the applicant and the BC PNP will enter into a Performance Agreement, and the entrepreneur can start their business.  The BC PNP will support the entrepreneur in a work permit application to facilitate this.

Once the entrepreneur completes the terms of the Performance Agreement, he/she can submit a Final Report to the BC PNP to be issued a nomination certificate.  The entrepreneur must demonstrate to the BC PNP that they:

  • are actively managing a business (i.e., be accountable for the day-to-day operations of the business) in British Columbia;
  • reside within 100 kilometers of the business;
  • have been physically present in British Columbia for at least 75% of the time that the individual was on a work permit; and
  • have complied with any other terms of their Performance Agreement.

The nomination certificate can then be used to support a permanent residency application.

More information about the Skills Immigration and Express Entry BC programs can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Skills-Immigration/Skilled-Workers.aspx

More information about the Entrepreneur Immigration Stream can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Entrepreneur-Immigration/Program-Requirements.aspx

Please contact us if you have any questions or concerns about his upcoming change.

A Day One Problem: Post-Graduate Work Permit to Permanent Resident

In December 2014, my colleague Steve Meurrens predicted that the introduction of Express Entry would have a devastating effect on the ability of international students to obtain Permanent Resident status in Canada (see: http://canadianimmigrant.ca/slider/are-options-for-international-students-to-immigrate-permanently-narrowing).

It seems like Steve’s epiphanies have come true. Just this past month I have received no less than 5 inquiries from individuals on the last year of Post-Graduate Work Permits (PGWP) asking about how they can obtain Permanent Resident status.

The challenges are quite clear. Time spent working on PGWPs, while earning some Canadian experience points, do not earn any extra points that appear necessary to obtain an Invitation to Apply. Individuals with PGWPs will have to not only meet the requirements of the Canadian Experience Class or Federal Skilled Worker Programs (at least 1 year of NOC 0, A, B experience), but also likely need either a Provincial Nomination or a Labour Market Impact Assessment.

The Labour Market Impact Assessment, which used to allow for advertising breaks for Employers hiring PGWP holders, now requires a $1000 application fee in addition to the 1 in 4 likelihood of a compliance review. Such burdens are heavy for Canadian employers to bare, particularly when the international graduate is likely entering only a mid-level NOC B position. Furthermore, the advertising exemptions have been removed and Canadian Employers must demonstrate that the PGWP holder is more suitable than Canadian candidates who have many more years of relevant experience and often times higher educational credentials. It is also hard, to make a business case, to pay someone with little experience a prevailing wage that reflects a skilled labour market generally with more experience and demanding hire wages.

One of the biggest problems facing PGWP holders is actually on the front end. Many recent graduates are unable to obtain positions right out of university that are NOC 0, A, B. Many start in NOC C, D positions (often unaware) that there is a requirement to obtain a promotion in order to qualify for Express Entry. Couple this with the fact that options for Entry-Level/Semi-Skilled (EE/SS) workers to obtain Permanent Residence (at least in B.C.) is limited to the currently-closed B.C. Provincial Nomination Program for EE/SS workers.

The Importance of Employer Communication Re: PGWP Status

One of the challenges is that many employees are hesitant to get into the conversation with their employers about their immigration status for fear of job security and other issues. However, this conversation needs to happen and ideally happen at the front end. Unless, it is in an Applicant’s plan to return to their home country following work on a PGWP, continue further studies, or pursue another guaranteed NOC 0, A,B vacancy within two years, not discussing immigration status with an employer can be disastrous. Currently, Canada’s economic immigration programs are all employer driven. If you are to obtain permanent residence in the future an Employer needs to be there to support you – write you a confirmation of employment, make recruitment efforts, provide your paystubs and their own tax/corporate information. Most importantly, they have to put their neck on the line in representations to Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).

Your pathway to permanent residence starts on Day 1. Your employment contract or at the very least, your unofficial understanding with the employer needs to involve your ability to be promoted to a NOC 0, A, B position so you can get at least 1 year of skilled-work experience.

You can check the skill level of your position using the NOC matrix available online. Note that the BC PNP uses the 2011 NOC Matrix (here), which ESDC uses the 2006 NOC Matrix (here) Make sure, however, to obtain proper advice as to the wording of your job duties. Several positions, particularly those designated by Canadian employers who are unfamiliar with the NOC or your requirements to have skilled employment, may inadvertently hire you to a purported “skilled position,” while giving you job duties more akin to a lower-skilled worker.  For example, one may assume that an administrative assistant (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=1&val1=1241) and an office support worker (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/ProfileQuickSearch.aspx?val=1&val1=1411)  would both be considered under the same NOC Code given the similar nature of their duties, but an administrative assistant is a NOC B position (thus qualifying for Express Entry) while an Office Support Worker isn’t (NOC C low skilled position).

It is furthermore important to broach your Canadian employer because of the number of hybrid positions that are subject to classification under lower NOCs by ESDC. A great example of this is in the banking industry where a Customer Service Representative is a NOC C position (http://www23.statcan.gc.ca/imdb/p3VD.pl?Function=getVD&TVD=122372&CVD=122376&CPV=6551&CST=01012011&CLV=4&MLV=4) but a Financial Service Representation is a NOC B position (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=6&val1=6235).

There is arguably a ton of overlap between the two positions and a ton of Customer Service Representatives I know who are gaining in seniority begin to take on some of the responsibilities of Financial Service Representatives. Complicating things, I know some banks call their Customer Service Representatives, Financial Service Representatives.

Another complicated matter are individuals who take on hybrid Account Manager (NOC B) and CSR (NOC C) roles. For immigration purposes, these type of positions will be under heavy scrutiny.

Know your Provincial Nomination Programs

Until the non-Express Entry British Columbia – International Graduates Program is announced in the beginning of July, the Express Entry version is a very good option for applicants (http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Express-Entry-British-Columbia/Express-Entry-British-Columbia-International-Gradu.aspx). Again, one of the challenges is the Applicant has to meet the basic requirements for one of three economic programs – which will require one year of NOC 0, A, B, either prior to coming to Canada and while holding a PGWP. As the International Graduates program requires you to apply within two years of completing your education program, this essentially gives you a two year window to get the requisite experience (assuming you don’t have it).

The International Graduates program is nice because there is no need for previous experience. The Applicant must only demonstrate that they have the means to support yourself and your dependents. For the Skilled Worker program, there is the requirement of several years of work experience, which is usually assumed to be two or more, creating a major time crunch for transitioning from a PGWP.

Regardless, it is important to keep up with the rapidly changing PNP program offerings. For example, on July 1st the BC PNP is reopening several programs, which I forsee may create more options for graduates of particular programs in professions that B.C. views in high demand (possibly LNG, Tech, and Medical fields).

I hope this article provided some insight into the challenges. As always contact me if you have any questions!