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The Problem of Employer Reference Letters for Economic Immigration under Express Entry

The importance of employer reference letters ¬†in today’s economic immigration system cannot be understated.

The current Express Entry process is largely applicant driven through self-declaration, up to and until the point a decision is made. With the Applicant essentially able to select the dates and self-select the National Occupation Code (“NOC”) to match their work experience, it is understandable that immigration must closely scrutinize the supporting documentation.

Indeed, there are several possible outcomes where required reference letters can be insufficient. Applicants can lose points for claimed work experience if the duties do not match up to the position claimed. If the points lost bring them below the lowest number of points during the draw which they were chosen they may deemed to be ineligible under A11.2.

Applicants can also found to have an incomplete application if required reference letters are missing altogether.

 

Challenges in Securing Documentation

The challenge lies, for many applicants, in securing this documentation. Granted, the supporting documentation is not needed for ALL positions. As IRCC has made quite clear in correspondence to immigration representatives (although they can make this clearer in their online material), only work experience that impacts the Comprehensive Ranking Score (“CRS”) is a required document. However, applicants are advised by IRCC to upload explanations in lieu. This often is true for accompanying spouses, but also possibly for Applicants if the work experience is in excess or outside of the amounts being claimed for points.

 

Challenges in Securing Documentation

Challenges obtaining reference letters also flow logically from employers that no longer exist, employers with whom the employer/employee relationship were not well documented, as well as previous employers with whom the relationship soured or is not currently on good terms.

Another issue I have realized is that by virtue of being called a “employer reference letter” many applicants provide letters that serve to be good character references but serve very little value in terms of their required information.

Indeed, as will be highlighted below, the requirements of a Canadian employer reference letter are very detailed and usually go beyond what is provided by Employers to individuals who are seeking to apply for a new position.

In fact, another challenge is that in many countries submitting employer reference letters that contain as much detail as requested by the electronic Application for Permanent Residency goes beyond what is legally permissible – in terms of domestic privacy laws. For example, I have learned that in Germany it is impermissible to include salary in employer reference letters. Applicants are forced to then supplement their applications with confidential contracts (etc) which create even more privacy and disclosure issues.

All of these may affect the quality, and ultimately the utility, of these reference letters.  These points have not yet been directly addressed by IRCC policy but in my mind should be moving forward.

A further major challenge which I will expand upon below, is that many large, reputable Canadian employers are unwilling to support their Employers with specific reference letters that set out the required

 

Reference Letter Requirements for Economic Immigration

To recap, the required documents for employer reference letters are highlighted in the screenshot below

Screen shot 2016-05-20 at 10.04.02 AM

Source: http://www.cic.gc.ca/english/resources/tools/perm/express/intake-complete.asp 

 

Employers Unwilling to Submit Anything Other than Generic Reference Letters

In conversation with several clients/employers, particularly large banks and telecommunications companies, I have heard that HR is only generally able to submit generic reference letters that confirm only the hours of work, salary earned,  and the title position of the employee. As per the above requirements, this is not nearly enough.

Recently, in order to try and gauge Immigration, Refugee and Citizenship Canada (“IRCC”)’s position on this letter, I submitted the following question to the representative’s mailbox:

Two quick questions:

1.       What is IRCC’s position on utilizing a generic employee reference letter with support provided by other employer-provided documentation (internal role profiles, etc.)? 

2.       In the event that the employers (many of them former) are unwilling to support the provision of new references, is there any guidance on how to assess employee submitted evidence in support of their own work experience?

The response I received, highlighted my understanding of the situation and how important it is for applicants to be aware and prepared to submit accompanying proof:

Under A11.2, an applicant must demonstrate that they met the minimum entry criteria (MEC) for Express Entry and possessed the qualifications for which they were awarded Comprehensive Ranking System (CRS) points, both at the time they were issued an Invitation to Apply (ITA) and at the time their electronic application for permanent residence is received.

 Please note that applicants must provide supporting documentation to substantiate the information provided in their Express Entry profile (on the basis of which they were invited to apply) and their electronic application for permanent residence (e-APR). 

As you are aware, a reference letter is an official document printed on company letterhead and must include your name, the company’s contact information (address, telephone number and e-mail address), the name, title and signature of the applicant’s immediate supervisor or personnel officer at the company.  The letter should indicate all positions held while employed at the company and must include the following details: job title, duties/responsibilities, job status (if current job), the dates you worked for the company, the number of work hours per week and your annual salary plus benefits.  The letter should indicate all positions held while employed at the company and must include the following details: job title, duties/responsibilities, job status (if current job), the dates you worked for the company, the number of work hours per week and  annual salary plus benefits.  As you may understand, a generic letter would not be acceptable.

 If an applicant is unable to obtain a reference letter, he/she may provide a letter explaining the reasons and provide any other documentation to satisfy an Officer of his claimed work experience. However, please note that the onus is on the applicant to demonstrate that he/she meet the criteria under A11.2.

Possible Solutions

Where Employer references are unavailable, I have utilized some of the following strategies:

  1. Advertisements from the company for the position;
  2. Internal role profiles;
  3. Paystubs;
  4. Internal Contracts; and
  5. Letters of Explanation/Statutory Declarations from the Applicant and/or colleagues or past supervisors.

There are likely many other solutions. Yet the rigidity of the employer reference requirements and the need to satisfy the far-too stagnant and inflexible National Occupational Code (“NOC”) system needs in my mind to be restructured.

I can see the challenges with using purely wage (in terms of artificial wage inflation, non bona fide employment,  and abuse of the system), yet the challenges applicants and employers have in addressing the NOC is a pressing issue for potential economic immigrants.

 

Challenge now is. How can we change this process for the better?

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Expressly Challenging: A Numerical Analysis and Three Takeaways from IRCC’s 2015 Express Entry Report

On April 1, 2016, Immigration, Refugee and Citizenship Canada (“IRCC”) released it’s Express Entry Year-End Report tracking the progress of its economic immigration management system, Express Entry, since its inception in 1 January ¬†2015.

Acknowledging the program’s growing pains throughout the report, overall IRCC seems to ¬†insist that Express Entry has met its objectives so far. In the report, IRCC writes:

Express Entry was designed with three main objectives in mind: 1) flexibility in selection and application management, 2) responsiveness to labour market and regional needs and 3) speed in application processing. Although there have been adjustments to the system during its first year and policy concerns expressed by stakeholders, Express Entry has met its expectations.

This report,  Express Entry Year-End Report (EN) is filled with very informative statistics as to how Express Entry has been operating so far.

In my mind there are (at least) three important takeaways that I will explore in this post:

#1 – English/French Language and Canadian Temporary Residency appear to be major assets for Express Entry

Currently, official language skills make their way into economic immigration in several ways.

First, as a baseline requirement, an individual who wishes to qualify for the Federal Skilled Worker program needs CLB 7+. Scores lower than this would make the applicant ineligible for assessment on the initial points grid. For the Canadian Experience Class. there is also a requirement that the Applicant meet the language requirements of CLB 5+ for NOC B and CLB 7+ fpr NOC 0, A positions.

As provided by IRCC:

If an applicant has work experience in both NOC 0, A or NOC B occupations, the applicant must satisfy the officer that they meet the minimum language proficiency threshold for the skill type/level in which they have obtained most (i.e., more than half) of their qualifying work experience [R87.1(2)(e)].

Once in Express Entry, language factors itself in up to 410 of the available 600 points (360 for most candidates). Those without strong language scores will inevitably be stuck in ¬†a Comprehensive Ranking Score (“CRS”) range currently not being invited to Apply for Permanent Residency.

The report seems to concur with this theory. Looking at the top 10 source countries of citizenship for Express Entry, one can adduce that English/French language skills poke its way into the selection process.

The report listed the top 10 countries of citizenship for those who receive Invitations to Apply (“ITA”) allowing them to apply for permanent residency via an electronic Application for Permanent Residency (“eAPR”). You will note that 8 of the 10 countries listed have English or French as an official language.

Screen shot 2016-04-03 at 8.27.07 AM

Countries of residence also appear to follow a similar trend, with the added fact that a large majority of those successful in obtaining an ITA reside in Canada. These are individuals who can we deduce have first come to Canada, likely as temporary resident workers or students.

Screen shot 2016-04-03 at 8.37.08 AM

I do wonder what percentage of these stats are skewed by the use of authorized representative portals but nonetheless it still suggests a key trend that language and Canadian residence matter.

Perhaps, the above stats change the way we as practitioners may want to advise those without Canadian temporary residency/work experience. Rather than suggesting that the client “do another language test and increase their scores”, there may be some benefit to crafting a short-term strategy (based on work or study) that could potentially lead to eligibility under the Canadian Experience Class. The added benefit is such a strategy would likely increase their possibility of obtaining a Labour Market Impact Assessment (“LMIA”) based offer of arranged employment or a Provincial Nomination.

You can also see this reflected in the fact that final decision processing for Canadian Experience Class is 1.3 months faster than for Federal Skilled Worker presumably due to the scrutiny required with overseas-based qualify work experience.

Screen shot 2016-04-03 at 10.15.13 AM

#2 – Applications are being bounced more than refused and at a higher rate than one would expect

As I discussed in an earlier post commenting on the trends I was seeing with Express Entry incompleteness/refusals, the problem of bounced applications is a major barrier to applicants.

Express Entry applications can be bounced for a variety of factors. Some of the common ones are:

  • Missing police certificates or certificates not yet received (very prevalent due to change in rule requiring police certificates for countries resided in¬†cumulatively¬†for 6 months or more and well-documented FBI police certificate delays);
  • Insufficient letters of reference (often times challenge in getting references for old jobs or where old employers refuse to provide adequate letters);
  • Failure in properly uploading complete documentation; and
  • A11.2 findings where an applicant has had a birthday, a new child, forgotten/failed ¬†to submit a document or new evidence that has now decreased their points etc.

This is just to name a few.

The 2015 report seems to confirm that bounced applications are a big problem for Express Entry;

Screen shot 2016-04-03 at 8.47.24 AM

If we go back to our overall chart for final processing, we see that out of the 16,491 applications finalized, 14,058 were approved and 2,433 were refused.  On the surface, this statistic does not look bad and accounts for a ratio of about 5.78 Approvals to 1 Refusal.

However, if we look at this other statistic from earlier in the report, the situation looks much more bleak.

Screen shot 2016-04-03 at 10.31.54 AM

This statistic tell us that out of the 37,424 applicants (21,562 applications received), 15,246 are in progress and 14, 058 have been approved. Doing simple math, we are left with 22, 178 applicants received of which only 16,491 were finalized as approvals/refusals. From this, we can deduce the bounce/incompleteness  rate to be somewhere in the neighbourhood of ([22,178-16491]/22,178) or 25.64%.

The consequences of a system where 1 out of 4  eAPR applicants are not even making it to a final decision (some perhaps through abandonment) are staggering. It means the system is not as intuitive as it can be and there is much room for improvement. It also means that Applicants may need more legal advice than they are currently seeking out for Express Entry.

 

#3 – The Backlog from Pre-Express Entry Continues to Exist and Eat Up Cap Space

If we return to the Conservative Government’s 2015 immigration levels plan, we can see how much of that space appears to have been made up of Express Entry.

In 2015, the projections were:

Screen shot 2016-04-03 at 9.38.17 AM

Assuming, just the low for now the projection was for 68,000 economic applicants to be granted permanent residency.

We know the actual number of 2015 Express Entry Approvals were 14, 058.

There are two possible conclusions from this. Either a majority of processing (79%) is still occurring on backlogged Canadian Experience Class/Federal Skilled Worker files from before January 1, 2015 or the Government has grossly missed its economic immigration targets for 2015.

In 2016, it now seems somewhat more understandable that the Liberal Government would reduce its target to 58,400 by 25,600. Perhaps Express Entry is indeed a system where promising less and delivering more may be the best strategy.

 

Conclusion

Many applicants and their representatives around Canada have been expressing their frustration with Express Entry. It appears that those frustrations are understandable. The old, the non-English speaking, even the slightly imperfect applicant is subject to either a low score or a bounced application.

With even lower projections in 2016 and no sense that the scores will be raised to unattainable thresholds, the only logical consequence is more refusals and bounced applications.

Applicants through Express Entry may want to think of pursuing dual intent (concurrent permanent and temporary) options or seek assessment under a provincial nomination program while Express Entry figures itself out. One of the strategies IRCC should employ, in addition to further educating applicants, is a secondary review/reconsideration mechanism.

Counsel for these Applicants should also be reviewing refusals more closely. Several of my colleagues have seen their Judicial Review practice increase quite significantly and many of these refusals/incompleteness findings are being overturned prior to the case ever reaching the Courts.

 

 

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Not-So Hidden Prejudice: Visa-Office Specific Document Requirements and Chinese Applicants

Canada’s historic mistreatment of Chinese migrants through immigration policy and law, though under-appreciated, cannot be understated.

It began with the introduction of the Chinese Head Tax in 1885. This led to the Government to carve out the Chinese Exclusion Act of 1923. It was not until 1967, that  race and ethnic origin were removed as a valid consideration of inadmissibility in 1967. However, even after this date Рspouses of Chinese applicants faced greater scrutiny and heavier requirements.

One would assume that in 2016, any government-endorsed effort (asides from the visa requirements that a nation is legally able to set out), that treats individuals of one nationality different than individuas of another may evoke some concern.

I have ALWAYS denied that institutional-supported discrimination exists in Canadian immigration. Have I seen one off cases? I have certainly read my fair share of visa officer decision and member decisions that could have been much more culturally sensitive. In many of these cases, competent counsel took their cases to appeal and judicial review and won on those grounds. Rare wrongs that mostly were righted at the end of the day.

Even, in the ¬†face of the May 2015 debacle where “uneducated” Chinese students in relationships with Canadian sponsors were revealed as a triggering characteristic for bad-faith/marriages of convenience, I somewhat accepted the then government’s response/defense. If there was a heavy incident of fraud among Chinese applicants, having an¬†internal¬†guide to try and shutdown the fraud ¬†can be somewhat ¬†justifiable in the circumstances.

As well-documented, the current Liberal government is focused on “sunny ways.” Many of us can feel the many rays of light that this has brought – be it through increasing family class sponsorship numbers or ending several court interventions relating to immigrant rights.

However, there are still some dark undertones in the system, recently updated and reviewed, that in my opinion still exist.

Specifically, I think these elements project Chinese applicants in a negative light, reinforce negative stereotypes, and ultimately should be¬†¬†amended or eliminated in an effort to re-enforce the government’s commitments to the Charter and equality.

 

Example 1: Visa Office Requirements China v. Western Europe

As a bit of a juxtaposition, I want to put up the Visa Office specific checklists for two visa posts – the London Visa Office and Beijing, Shanghai, Hong Kong China (Chinese) offices for study permit applicants. These form the basis of supplemental documentation required by the Visa Office to make a decision on a particular application.

Here is the one for London Visa Office:

UK Study Permit RequirementsIn the event the picture is too small, the additional documents are made up of only a ‘proof of employment or current studies’, ‘evidence of previous studies and travel’, and proof of income. For purpose of study, only a CV and any additional documents showing why you want to study is required.

Let’s move now to the¬†Chinese Offices

The preamble…..

 

 

Preamble to Chinese Study Permit App

Before we begin, a preamble. Unlike for London, for China we see immediately that Immigration is concerned about complete, truthful and accurate materials and failure to do so could lead to fraud.

I have no qualms about this particular warning. I think the integrity of our system needs to be protected above all else.

However, I do not think it makes sense to include this only on the Chinese form and not the form for other countries.¬† Perhaps, China statistically has higher incidents of fraud than other countries. This is certainly something that needs to be addressed – and must be through greater regulation of those who are providing immigration advice. However, to slap a misrepresentation warning on one group because of a perceived reputation of that group is the definition, in my mind of, the word ¬†‘prejudice.’ Imagine, if the goverment’s checklist warned all Middle Eastern study permit applicants that it was against the rules of immigration to be a member of a terrorist organization. ¬†The effect is the same here.

After this preamble, in my opinion more questionable content:

Required Docs - Chinese study permit - 1

For an applicant apply through the London Visa Office, there is no requirement for the disclosure of information relating to the applicant’s mother and father. ¬†As this application does not age discriminate, even a 30-year old applicant must provide information about his/her father and mother in order to meet this requirement.

From my perspective, this is a view of an Asian ‘student’ as being an individual low on self-reliance and self-independence – inexplicably tied to their family rather than to self. ¬†Again, I have no qualms with requiring each family member to fill out a form – but should this not be a global requirement for visa offices?

 

 

Requried Docs - Chinese study permit - 2

Next, a study plan. Note that is much more detailed than the one for London. Finally, you have a list of notarized documents, for college, senior high school, and including all transcripts. From a cost perspective, notarized documents with certified translations can run up to 400-600 RMB (equivalent to CDN 100-150) per document. Easily making the immigration process an additionally CDN $1000 more expensive.

For applicants who have not already visited Canada or the United States on a valid visa, the document requirements are even higher.

Docs - dependent on what type of application- China study 2

We see again, a concern with not only the Applicant’s employment put the employment of the parents and any financial support. The details required to be divulged are quite detailed.

China Docs - All other students 2

In fact, the checklist gets detailed to the point of requiring that if an applicant’s parents must provide details about their business registration.

In my opinion, if you make this a requirement for one, it should be for all. Furthermore, I would suggest that the students that you genuinely want in Canada are those who may not be able to shell out CDN $1000 for transcripts, whose parents aren’t necessarily bankrolling their education or running businesses, and who wish to study here on their own merit. None of this is contemplated, within the supplementary form. This creates several challenges, particularly where you have a potential student applicant who may not be under the care, auspice, or even favour of their parents in trying to pursue Canadian education.

 

Example 2: Warning Message – Application to Sponsor a Family Member Outside Canada (China v. Western Europe)

Beyond the study permit context, there is also a similar type message for Canadian/PR spouses sponsoring their loved ones from abroad.

Here is the beginning of the guide to Western Europe:

Screen shot 2016-03-20 at 12.03.13 PM

 

Here is the beginning of the guide to China:

 

Screen shot 2016-03-20 at 12.02.40 PM

Other than the fact that the 2-years for misrep should actually say 5-years (as of the January 2016 date that it was last update), I have serious concerns with the implication of warning one group but not another.

As this is a guide for both sponsors and applicants, as a future sponsor of an applicant from China, I feel like I am beginning purposely pointed out as a potential for fraud simply based on the nationality of my future spouse.

To compare, I did a spot check on other guides. This same warning does not exist for India, Japan, or even Africa. However, it does exist for  the Middle East and Central Asia applicants:

Screen shot 2016-03-20 at 1.48.04 PM

Indeed, it you want to read into a little more the box is even bolder in font for Middle East and Central Asia warning of misrepresentations. Accident or not, it is clear and obvious that the visa office requirements, and by extension the Canadian immigration system, is not treating all applicants similarly.

More Evidence – More Problems

Perhaps a defense that may be raised to the hierarchy of ‘distrust’ argument, is that India’s guide does not discuss fraud, even with it’s pre-existing reputation.¬†If it is indeed, right now, the decision of individual visa offices to choose the content on their office-specific forms, I would argue that more harmonization is desperately needed.

In my opinion, a fair and just immigration system treats applicants and potential applicants as fairly and equally as possible without pre-conceived notions as to who they may be and what they may do, without evidence.

Warning an applicant from a particular country or region without warning another is a preconceived notion.

The fact is these requirements, directly affect results as well. I have seen more than one refusal decision where an female applicant from China was called “young” and “mobile”, leading to the conclusion she would not leave after the end of her intended stay – a requirement for temporary residents.

Furthermore, the documents themselves pose major privacy and even evidentiary issues.¬†The more evidence an applicant provides in an immigration context, inevitably the more scrutiny they will face in so-doing. From an applicant’s perspective, the more they are being scrutinized, the more they will think that there is a distrust of them.

Additionally, the document quality standards in most countries pale in comparison to the Canadian standards. In many countries and particular poorer/less affluent regions, translations into English/French are not accurate and prohibitively expensive.

Fraud needs to be combatted, but at the same time it needs to be done in a way that equal, just, fair, and upholds the value of our Charter – one that does not discriminate by nationality.

 

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Don’t Shoot the Airline Company- CBSA’s IAPI is the other side of the eTA

155278373 aircraft stock

There is no doubt that Canada’s electronic Travel Authorization (“eTA”) regime, set to go into full legal effect ¬†a little over a month from now, will be disruptive to the process of travelling to Canada.

As I have covered in an earlier blog on the topic, the eTA will create several consequences for those seeking entry by air into Canada. Some of the expected follow out could include permanent residents being trapped outside Canada with expired cards, Canadian dual citizens lacking proper documentation unable to fly home, and foreign nationals being unable to board planes to Canada. It will also have spillovers to those seeking to enter by land via private vehicle. One immigration lawyer suggested jokingly that a local U.S. land border was likely to get very busy due to the number of individuals forced to drive across in private vehicle in order to return to Canada. Individuals who drive by private vehicle are not under a  requirement to produce a valid PR card upon entry.

This all begs a question. ¬†How will the eTA be enforced from the other side – by airlines companies? To look more closely we need to study Canada Border Services Agency (“CBSA”) Interactive Advanced Passenger Information (“IAPI”) system and the increased role airline companies now play as the front line to screen out individuals flying to Canada with improper/expired documents.

IAPI

Prior to the eTA, individuals with expired permanent resident cards has several options. One of them (for individuals who did hold travel documents), was to present a visa-exempt passport in order to get past airlines and hop ¬†the plane. Upon arrival they would then attempt to enter Canada on the basis of the expired PR card and a confirmation of permanent residence. For many ¬†passengers this worked. Very little was done to keep the individual off the plane and little was enquired of the passenger’s immigration status.

IAPI changes that by requiring that “pre-departure traveller and flight data to be submitted by commercial air carriers prior to an international flight‚Äôs departure for Canada.”

For all international flights for Canada, CBSA will both require the advanced passenger information and ultimately issue a board/no-board message for each passenger. This means that prior to the flight, CBSA will no whether an individual is required to have a valid travel document (eTA or visa), is a permanent resident, or a Citizen. They will also be able to track if the individual is subject to a removal order or an Authority for Negative Discretion (“AND”).

The technical nature of the IAPI system is at first glance very confusing and complex. I expect that the airline companies that already have state of the art IT  will likely try and figure out internal systems to facilitate the provision of passenger information to CBSA.

Exit Controls Coming Soon.

The next major development will be the implementation of exit controls, which to my best estimate will occur sometime in early-mid 2017. From my review of CBSA briefing material for airline companies, much of the technical infrastructure is in place for this already. Once exit controls get rolled out, I think we can see integration with both PR and Canadian passports as well allowing the CBSA to better track and record the entries and exits of all air and land border.

For more information about the eTA, IAPI, and how it may affect your travel plans feel free to email me at will.tao@larlee.com

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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