One of the cornerstones of Matrixvisa Inc. is our constant effort to improve immigration policy and ensure that our clients receive decisions that are procedurally fair. At present we are one of the leading Immigration Law companies in terms of policy lobbying for skilled workers emigrating to Canada, both at the Provincial and Federal level. Our efforts to improve policy include inter alia writing articles in Immigration law magazines; writing to our Ministers, and attending immigration round table policy meetings. We have also been able to address policy issues in articles that have appeared in newspapers such as the Toronto Star and Calgary Herald.
43. Work Permit Refusals (for Provincial Nominees) Skyrocket in South Africa since 2015
6 August 2020
When a foreign national requests a work permit, it is usually supported by a Federal Labour Market Impact Assessment (LMIA) or Provincial Nominee Certificate/Provincial Letter of Support. The statistics that was obtained (ICCRC File number 2A-2020-16489-000003) about the refusal rate for work permit requests at the Canadian High Commission in Pretoria, that were based on a Provincial Nomination Certificates.
2015: 2 % refusal rate
2016: 9 % refusal rate
2017: 13 % refusal rate
2018: 35 % refusal rate
2019: 52 % refusal rate
If your case is well prepared, it could withstand the scrutiny in Federal Court. This means the Department of Justice will probably settle the case before it reached the hearing process. Different offices of the Federal Court settles cases quicker than others.
Source: PNP WP refusals.
42. Refugee Claims by People Persecuted in South Africa
5 August 2020
During the first few months of 2020, the refusal rate for refugees out of South Africa was about 92 %
Matrixvisa obtained statistics from the Canadian Immigration and Refugee Board (IRB) about refugee claims by people that where persecuted in South Africa. According to the information obtained during the past 7 years, 78 people obtained refugee status in Canada after being persecuted in South Africa. The refusal rate is roughly 83%.
Refugee protection can be conferred in Canada if the Refugee Protection Division of the Immigration and Refugee Board determines that the claimant meets the United Nations definition of a Convention refugee, which has been incorporated into Canadian law, or that the claimant is a person in need of protection. Convention refugees are people who have a well-founded fear of persecution because of their race, religion, nationality, political opinion or membership in a particular social group. Membership in a particular social group can include sexual orientation, gender identity, being a woman, and HIV status.
Persons in need of protection must show that if they return to their country of nationality, they will face a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment.
41. High Refusal Rate of Study Permits at the Pretoria Visa Office
19 May 2020
Matrixvisa Requested the Federal government 55 % of all study permit done people older than 30 are being refused in Pretoria.
From the period 1 June 2018 to 30 Aug 2020 2975, South Africans older then 30 years applied for study permits at the Canadian High Commission in Pretoria. That is about 200 applications per month or 10 per day. Of this amount 1654 were refused which is 55% refusal rate.
Source: SP Refusal Rate.
40. The AB government issued 2352 nomination certificates to foreign nationals with profiles in Express Entry (Jan-Oct 2019).
18 December 2019
Matrixvisa Inc obtained records from the Alberta Immigrant Nominee Program showing that for the the first 10 months of 2019, 2352 nomination have been issued to foreign nationals that has Express Entry profile. See records.
From this total number of nominations, 1963 nominations were issued to foreign nationals outside of Alberta. See here for a complete list of all the occupations that are listed.
From this total number of nominations, 389 nominations were issued to applicants working in Alberta. (Sources: Access Requests 2019-G-0129 dated 18 Dec 2019 and 2019-G-0130 dated 18 Dec 2019).
39. High Refusal Rate in Pretoria for Skilled Agricultural Workers
19 November 2018
From 1 May 2018 to 30 May 2019, 79 applications for Farm Managers, Farm Supervisors and Farm worker where submitted by South African Citizens at the Visa office in New York of which 17 was refused. That is a 17 % refusal in New York.
From 1 May 2018 to 30 May 2019, 96 applications for Farm Managers, Farm Supervisors and Farm worker where submitted by South African Citizens at the Visa office in Pretoria of which 42 was refused. That is a 43,75 % refusal.
Report can be seen here: Pretoria refusals.
38. Work Permit refusals by One Visa officer
19 November 2018
Matrixvisa obtained information about the refusal rate of one officer at the Canadian High Commission for the past 3 years. For security and safety of the officer, the officer’s name would not be released.
2016: 1612 approvals + 636 refusals + 61 withdrawn = total of 2309 applications, 636/2309 x 100 = 27 % refusal rate and
2017: 1375 approvals + 677 refusals + 81 withdrawn = total of 2133 applications, 677/2133 x 100 = 31 % refusal rate
Jan- Oct 2018: 1385 approvals + 939 refusals + 43 withdrawn = total of 2367, 939/2367 X 100 = 39 % refusal rate.
If one compares the totals of this Access to Information Request (ATIP) with the previous Access to Information Request (See item 37 below) you will see the discrepancy: In the first ATIP, it was disclosed that that visa office had to decide on 814 work permit in 2016. In the second ATIP is was explained this officer reviewed at 2309 work permits in 2016 Therefore the ATIP that contain the 814 work permits are probably wrong and therefore not reliable. Rhetorical question, why the decrease in approvals or increase of refusals by one officer? No – one knows. From Jan to Oct (10 months or about 200 days) the officer must assess about 11,83 case or rounded up about 12 cases a day. Eight working hours minutes rest period = 7 hours a day. That would leave about 30 min per file…….roughly. Given the importance of these workers (filling vacancies Canada) the rhetorical question is why is only 30 min given to one file? This calculation is excluding visitor visa and study permits applications by the same officer. If visitor visas and study permits are added it could 15 minutes per file.
37. Work Permit Refusals: Pretoria
19 November 2018
Matrixvisa Inc completed a Federal Access to Information Request and proven that there is a decrease in work permits approvals at the Canadian High Commission in Pretoria as many suspected:
Work Permit approvals Jan to Dec 2016 81 % approved of 814 applications in 12 months
Work Permit approvals Jan – Dec 2017 – 71 % approved of 855 applications in 12 months
Work Permit Jan- Aug 2018 – 67 % approved of 907 applications in 8 months
Here is a link to the document with the work permit refusals statistics at the Canadian High Commission in Pretoria.
The statistics for work permit refusals for all visa post for 2016, 2017 and the first 8 months for 2018 is also available here: Work Permit Refusals for all Canadian Visa Offices (1.3 MB)
Visa officers have the duty to apply the Immigration and Refugee Protection Act and the associated regulations when a foreign national applies for a work permit. More specifically Immigration and Refugee Protection Regulation 200 stipulates the following: “Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that (b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9;” Visa Officers have the duty to determine if the foreign national would return to South Africa if the permanent residence application in the future is not successful. This is not an easy task, but in our opinion, this regulation is applied in a very strict manner and some of the reasons for refusals under this mandate appear dubious and vague. The manner in which some decision is made, is in our view, also procedurally unfair. Even applicants with permanent residence nominations from provinces are being refused at the Canadian High Commission from time to time during 2018 which never happend with our clients in the decade from 2007 to 2017. In two recent case, our clients requested a judicial review in Federal Court for a work permit refusals. Both matters were settled by the Department of Justice out of the court and the matter was sent back to a different visa officer for redetermination. Therefore the Department of Justice agreed that the officer made a mistake or acted unreasonable and was not prepared to litigate these refusals.
36. ESDC Audit Budget Senseless
26 March 2018
Access to Information request has shown that Employment and Social Development Canada (ESDC) audited 5291 employers of temporary foreign workers from 1 Jan 2013 – 13 Aug 2017. See copy of the audit here. Only 59 employers were found non-complaint to some degree, which is only 2 % non-compliance.
See: https://www.canada.ca/en/immigration-refugees-citizenship/services/work-canada/employers-non-compliant.html in the Canadian federal budget, $194 million was allocated in the budget, over 5 years, to audit employers.
Why spend millions when non-compliance that is not significant? Matrixvisa is of the opinion that the budget should rather be spent to develop sensible immigration policies.
35. Ontario Secret Rule Discovered for Selection from Express Entry
25 October 2017
As part of Matrixvisa’s objective to ensure fair treatment of our clients, an information request was submitted concerning Ontario’s selection of candidates from the Federal express entry pool. This request was submitted in terms of the Ontario Freedom Of Information and Protection of Privacy Act (FIPPA).
Subsequently, we discovered the Ontario government secretly decided to only draw applicants from the Federal Express Entry pool in cases where the entries into the federal pool were less than 90 days old.
This means that if, on the day of the ON draw, an applicant has been in the federal pool for 91 days, that individual will not receive an invitation. We will write to the Ontario Minister of Immigration, Honorable Laura Albanese and express our concerns to her ministry.
The secret rule can be seen here.
34. Letter to Minister of Employment, New Policy RE: Employment Requirements of the NOC
16 September 2017
Matrixvisa wrote a letter to the Minister of Employment and Social Development about our concerns with regards to inappropriate use of the Employment Requirements of the National Occupation Classification (NOC) to refuse Labour Market Impact Assessments (LMIAs). On 2 November 2016, the department write a policy about the use the NOC in LMIAs. In the past, officers harshly applied the Employment requirements of the NOC as law which we criticized as unconstitutional. The new policy guides officers to be more reasonable and to consider the following factors as well.
- Is the employers job requirements necessary for the proper or efficient performance of the job ?
- Is the job requirement in the interests of effective, safety and productivity ?
- Does the requirement have a sensible connection to the ability of an employee to do the job ?
The letter to the Minister can be seen here.
The e-mail response from the Director of the Foreign Worker Section can be seen here.
The new policy dated 2 November 2016 can be reviewed here.
33. Letter to New Brunswick (NB) for South African & Namibian Candidate Applicants
20 September 2017
The Province of New Brunswick (NB) only allows an eligible applicant to apply via Expression of Interest for nomination if the foreign national has attended an information session. The NB Provincial Nominee Program conducts information sessions in countries of their choice around the world. The NB government never visit South Africa and therefore South African and Namibian applicants can not get the opportunity to apply via expression of interest for a NB nomination. We wrote a letter to the Minister of Immigration in NB showcasing South Africa as a valuable source country for immigrants with the hope that the NB government will choose to conduct information session in South Africa in the future.
The letter written to New Brunswick can be seen here.
The New Brunswick Minister’s letter back to Matrixvisa can be seen here.
32. Changes to the Ontario Selection on Express Entry recommended by Matrixvisa.
24 May 2017
Matrixvisa wrote to the Ontario Minister of Immigration on 24 May 2017 and suggested improvements to the Ontario Selection from the Express Entry pool.
The letter to Ontario Minister of Immigration can be seen here.
The Ontario Minister’s first letter, back to Matrixvisa can be seen here.
The Ontario Minister’s second letter, back to Matrixvisa can be seen here.
31. Changes to Immigration Recommended by Matrixvisa.
1 May 2017
Cobus Kriek researched and published an Article in ImmQuest Magazine (owned by Carswell) in March and April 2017. The article examines the drop in points from 600 points to 50 points for Arranged Employment in all immigration classes in the Express Entry system that took place on 12 Nov 2016.
Read the Article of the Fundamental Change in Skilled Worker Selection here.
Reproduced by permission of Thomson Reuters Canada Limited. Subscriptions to ImmQuest are available at 416.609.3800 (Toronto and International); 1.800.387.5164 (Toll Free Canada and United States); www.carswell.com
30. Changes to Immigration Recommended by Matrixvisa.
Changes are expected in the immigration program for skilled workers in September or October 2016. Matrixvisa made representations to the Minister of Employment and Social Development as well as the Minister of Immigration Refugees, Citizenship Canada.
The presentations can be seen here:
- Letter to Minister of Employment and Social Development – Concerns about Various Policy Problems within ESDC Foreign Worker Program.
- Letter to Minister of Immigration Refugees Citizenship Canada – Suggestions for Immigration Policies Changes.
29. Employers do NOT have to be in business for 12 months to receive a positive LMIA.
6 June 2016
The Immigration and Refugee Protection Regulations do not require businesses to be in existence for 12 months before employing a foreign national with a LMIA. However, the government’s website indicate that employers must be in business for 12 months. We wrote to the Minister of Employment and Social Development to express our concerns. The Director General of the Foreign Workers, Ms Janet Goulding, wrote to us last week and confirmed that the 12 month rule is a discretionary issue. It confirms our opinion that the 12 month rule is not law, but only a guideline that officers should not view as a the law. The letter can be seen here.
28. Right of Employers to determine the requirements mentioned in advertising for Labour Market Impact Assessments (LMIA)
6 October 2015
Immigration and Refugee Protection Regulation 2013 (93) (e) stipulates the following: “whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reasonable efforts to do so.” Over many years officers of Service Canada have increasingly decided that the Employment Requirements of the National Occupational Classification (NOC) may not be exceeded. Although employers have a constitutional right to determine these requirements (even though it might exceed the Employment Requirements of the NOC) officers continue to refuse LMIAs for claims that the Employment Requirements have been exceeded. Matrixvisa Inc. researched the issue and provide a clear explanation of the legal principles involved. It is expected that this issue can only be resolved through the establishment of a legal precedent following litigation in Federal Court.
These articles are reproduced by permission of Thomson Reuters Canada Limited.
Subscriptions to ImmQuest are available at 416.609.3800 (Toronto and International); 1.800.387.5164 (Toll Free Canada and United States); www.carswell.com.
Our director & immigration representative Cobus Kriek’s research for these articles can exclusively be seen on our website. See the research here.
27. Advertising Rules for Labour Market Impact Assessments (LMIA)
5 October 2015
Immigration and Refugee Protection Regulation 2013 93) (e) stipulates the following: “whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reasonable efforts to do so.” In plain language this means an employer must first attempt to find Canadian Citizens or Canadian Permanent Residents. Pursuant to this regulation the government published 4 pages of rules for employers to see online. However 35 pages of secret/hidden rules were discovered by Matrixvisa Inc in Aug 2014. Canada Broadcasting Corporation referred to our discovery on cbc.ca on 5 Sept 2014. Please click on the links below to see the the discovery in comparison to the public rules.
Canada Broadcasting Corporation mentions Matrixvisa Inc discovery here:
Quoted from the article: “Recently, an immigration lawyer in Vancouver, Steven Meurrens, posted on his blog documents provided to him by Jacobus Kriek, an immigration consultant. Mr. Kriek received these documents from the federal government in response to what is called an Access to Information and Privacy Act Request. The documents Mr. Kriek received discussed the advertising requirements employers must follow before they recruit temporary foreign workers. What Mr. Kriek discovered was that while the recruitment rules the government publishes on their public website number about three pages, Mr. Kriek received an additional 35 pages of rules and interpretations that are internal to the government.”
26. Matrixvisa Inc determines how “labour shortage” is Defined in Labour Market Impact Assessments (LMIA)
June 18, 2015
Immigration and Refugee Protection Regulation 203 (3) stipulates that officers must assess 7 factors before a Labour Market Impact Assessment (LMIA) decision is provided. LMIAs are extremely important in Canadian immigration law. Currently most immigration to Canada can only take place if an immigrant has a job offer from an employer that has obtain a positive LMIA or a Provincial Certificate of Nomination. Immigration and Refugee Protection 203 (3) (c) stipulates the following: “whether the employment of the foreign national is likely to fill a labour shortage.” Since 2002, Service Canada (SC), Employment and Social Development Canada (ESDC), and Citizenship and Immigration Canada (CIC) have never had a single national definition of the term “labor shortage”. Officers of Service Canada have been refusing LMIAs for more than a decade based on dubious labour shortage statistics (if any) and without understanding the meaning of labour shortage. Certain methodologies were used by Citizenship and Immigration Canada (CIC) to develop Occupation Lists (in the Federal Skilled Worker Class) in the past 20 years. These methodologies were shrouded in secrecy for several decades. For the first time a chronological explanation is provided of the different definitions of the concept of labour shortage used by different federal departments (for the period June 2002 to April 2015). Due to the in-depth knowledge of this concept Matrixvisa can effectively represent employers in LMIA requests. Please see the research here. This research was also published in the Canadian Immigration Law Magazine (IMMQUEST) in May and June 2015.
25. Office of Information Commissioner (OIC) Issued a Report After Complaint Against Employment and Social Development Canada (ESDC)
April 18, 2015
Canadian Employers that employ foreign workers must comply with certain employment conditions, such as paying the correct wage to the foreign worker; ensuring the foreign worker works in the correct occupation; ensuring the foreign worker works at the correct location; etc. Matrixvisa Inc requested ESDC to provide a list of these conditions that employers must comply with. This request was refused by ESDC in January 2013 and again in January 2014. On 8 January 2014 Matrixvisa sent a letter with a complaint to the Minister of ESDC’s Senior Policy advisor, Dr. Michael Bonner. After receiving no response, a letter of complaint was submitted to the OIC in Ottawa during March 2014. On 31 March 2015 the ESDC released two thirds of the information that was previously redacted as a result of the investigation by the OIC. On 2 April 2015 the OIC provided a report after a 12-month investigation. The OIC investigator indicated that the compliant by Matrixvisa was valid and that the ESDC incorrectly applied Section 16 (2) of the Access to Information Act to withhold information about employment conditions that Canadian employers must comply with.
24. Erroneous Policy of Labour Shortage at Service Canada in Ontario
December 18, 2014
On 10 December 2014, Matrixvisa Inc. (Cobus Kriek) wrote a letter to the regional manager of Service Canada. The Service Canada office in Ontario (Toronto) refuses applications if a shortage is not listed on 2 websites: please see the “outlook” tab of the www.jobbank.gc.ca and Ontario Job futures (http://www.tcu.gov.on.ca/eng/labourmarket/ojf/). A letter was sent to the manager in ON in which the errors in their methodology were identified. Two examples were quoted to demonstrate the lack of accuracy of this methodology:
- The two sources of Service Canada indicate that there is not a shortage of Dentists in Ontario. However the Technical Working Group of Employment and Social Development (their own head office) indicates that there is a shortage of Dentists in Ontario.
- The two sources of Service Canada also indicate that there is not a shortage of CNC Machinists in Ontario. However recent research by the Ontario Manufacturing Learning Consortium (the founding organizations include the Ontario Aerospace Council, the Canadian Tooling & Machining Association, the Organization of Canadian Nuclear Industries and Canadian Manufacturers & Exporters) has demonstrated that there is a shortage of 700 CNC machinists in Ontario.
The response by the manager of Service Canada was as follows: “Thank you for your feedback below and your further feedback dated December 10, 2014. It has been shared with the appropriate policy group at national headquarters”. The concern is that this flawed methodology was developed by Service Canada in Ontario and that it has nothing to do with the head office in Gatineau, Quebec. Please see our letter with attachments here.
23. Matrixvisa Inc. Wrote to the Minister of Employment and Social Development (ESDC) RE Hidden LMIA Policies
November 18, 2014
During 2014, Cobus Kriek wrote to the Senior Policy Advisor about the lack of transparency in Labour Market Impact Assessment (LMIA) policies. On 15 November 2014 Cobus also wrote to the Chief of Staff of the Minister of ESDC about hidden policies. Matrixvisa Inc were in informed that during the first 4 months of 2015 ESDC was in the process of writing clear LMIA policies for all employers in Canada.
22. Owner of Matrixvisa Inc. Provides Affidavit to Federal Court in LMO Litigation
July 18, 2014
During 2014, Cobus Kriek, the owner of Matrixvisa Inc, provided an affidavit to Federal Court in the litigation of a Labour Market Opinion (LMO) refusal. The affidavit provides interesting background about Matrixvisa’s approach to Immigration Law and provides a brief overview of our efforts to improve Canada’s immigration policy over the past decade.
21. Decision by Service Canada Officer Overturned
Matrixvisa Inc. made history in Canada after our client was the first to obtain a decision in Federal Court setting aside an opinion of an officer of Service Canada. The decision was set aside and the Minister of HRSDC was instructed by Judge Barnes to re-determine the case by a different officer (Federal Court Docket IMM-852-08 dated 11 August 2008). In the subsequent redetermination the Arranged Employment Opinion (AEO) was approved an our client arrived in Canada as a permanent resident. In essence the Service Canada officer stated that a self employed person can not provide a genuine job offer to a foreign national. In our initial submission, Matrixvisa Inc, argued that the policy was ultra vires the Immigration and Refugee Protection Regulations and the Federal Court of Canada agreed with our interpretation.
20. New Wage Methodology of Human Resources and Skills Development Canada (HRSDC) Effective
October 18, 2013
Before a Labour Market Opinion (or ‘LMO’) is issued to a Canadian employer to employ a foreign national, an officer of Service Canada must assess six factors as required by Immigration and Refugee Protection Regulation 203 (3) (d). One of these factors is a determination whether the wage to be paid to a foreign national is equivalent to the ‘prevailing wage rate’. On 25 April 2012 HRSDC implemented a new wage methodology to determine the prevailing wage. Matrixvisa Inc. requested that the details of the new wage methodology be released in terms of the Access to Information Act. Subsequently 300 pages of information were released. Only the following sections are uploaded as it will provide sufficient insight into the new wage methodology (2,7 MB of data):
- Decision process for Determining wages to be published on the Working in Canada Website (page 34-37)
- Memorandum for the Minister’s Office of HRSDC: Update: New Labour market Information Wage Methodology and Implications for the temporary Foreign Worker program, File 2012 HR_NHQ 015084 (page 38-40)
- National Guidelines for Labour Market Information Wage dated December 2011 (page 44 to page 85)
- Memorandum to the Minister dated 27 February 2012 (page 151-152)
- Proposed Standardized Approach to Wage Verification by Labour Market Information Division of Service Canada (page 209-218)
- HRSDC implementation of 212 Wage Methodology on Working in Canada Information to data users April 2012 (page 312-314)
The new wage methodology allows an employer to also pay 15 % below the median for “skilled” (NOC 0, A and B) and 5 % below the median for lower skilled occupations (NOC Levels B,C and D) if Canadians in the same occupation, at the same location with the same working conditions are paid the same lower wage. The government’s announcement can be viewed here and the letter from HRSDC addressed to Matrixvisa Inc can be viewed here. A copy of the government’s online rules as reference.
Part I:Published September 2013 in Canada’s Immigration Law Magazine, IMMQUEST New Wage Methodology in Labour Market Opinions and Immigration Applications
Part II: Published October 2013 in Canada’s Immigration Law Magazine, IMMQUEST New Wage Methodology in Labour Market Opinions and Immigration Applications
19. Obtaining Access to Internal Rules of Human Resources and Skills Development Canada (HRSDC) and Service Canada (SC) regarding Labour Market Opinions (LMOs) & Arranged Employement Opinions (AEOs)
January 18, 2013
Please see updated version dated 8 January 2013 TFWP Manual – please note that it is an 12.7 Megabite / 740 page document.
On 4 January 2012 Matrixvisa Inc. discovered the existence of a 458 page “Temporary Foreign Worker Program Manual” through the Federal Access to Information Act. The manual was intended for “internal use” by HRSD and SC. Matrixvisa Inc. distributed this manual throughout the immigration industry during 2012. Having access to this manual allows Matrixvisa Inc. and other immigration law firms to better understand methodology used by HRSDC and SC, as well as to ensure that clients obtain procedurally fair decisions. Some of the policies are clearly not correct and we are addressing those issues with the Federal Government.
18. Policy Change Lobbied: Study Permit Funding Policy
December 18, 2012
Previously, when a Foreign National applied for a Study Permit (at the Canadian High Commission in Pretoria) to study in Canada they had to prove that their parents would be able to fund the studies in Canada. Therefore the Canadian High Commission in South Africa refused to accept Third Party funding (such as extended family members in Canada) for foreign students studying in Canada. This policy was ultra vires (not allowed by law) and attempts to have it corrected failed.
Matrixvisa Inc. requested Minister Kenney to intervene and after our efforts this ultra vires policy was removed from the website of the Canadian High Commission – confirmed in a Response from the Office of the Minister. Foreign nationals in Southern Africa that apply for study permits may now make use of Third Party funds in their requests for study permits and visas.
17. Erroneous In-House Rules about Retained Earnings of Employers: Opinions by Service Canada Immigration and Refugee Protection Regulation 200 (5)
October 18, 2012
Requires Service Canada to Assess Employer’s Ability to Fulfil Terms of Job Offer for Work Permit.
In terms of this authority, Human Resources and Skills Development Canada (HRSDC) developed in-house rules for decisions makers at Service Canada. These in-house rules provide Service Canada officers with guidance about the use of retained earnings when these opinions are made about the ability of employers to fulfil the conditions of the job offer with specific reference to retained earnings. A significant error has occurred in these in-house rules regarding retained earnings and as a result incorrect decisions are being made by some officers. One of our clients (flight school in Alberta) received an unfair decision based on these erroneous policies. A request for a judicial review was filed in Federal Court and subsequently HRSDC/SC offered a settlement out of Federal Court. However these policies remained in place and as a result Matrixvisa Inc obtained 2 expert opinions and expressed our concerns to the Minister of HRSDC in a letter dated 14 Aug 2012.
The Director General of Foreign Workers, Mr Andrew Kenyon, replied on behalf of the Minister of HRSDC in a letter dated 19 Oct 2012 thanking Matrixvisa Inc. for the suggestions and positive criticism.
16. Significant Economic Benefit within the Intra Company Transfer (ICT) Program
September 18, 2012
Foreign nationals working for multi- national companies can be transferred from a foreign branch or subsidiary to a Canadian branch or subsidiary. These transfers are made possible by Immigration and Refugee Protection Regulation 205 (a) that identifies a ‘significant economic benefit’ as the actual authority. The concept of ‘significant economic benefit’ has never been defined comprehensively. Cobus Kriek co-authored an article about the meaning of this concept with professor Devoretz from Simon Fraser University in British Columbia during 2012. The article was published in ImmQuest Magazine and can be downloaded here:
15. Incorrect Interpretation of Alberta/CIC Agreement on 7 Trades
September 18, 2012
Before a foreign national may work in Canada a Labour Market Opinion (also known as a LMO) is required in most cases. Before an LMO can be issued an officer of Service Canada must assess 6 factors: e.g. is the wage market related; have the employers attempted to find Canadians, etc. On 16 July 2012 the Canadian Federal Government and the Alberta Provincial Government agreed that for 6 occupations (Heavy Duty Mechanics, Iron Workers, Welders, Pipe Fitters, Millwrights and Carpenters) an LMO will not be required if the foreign national has passed his Red Seal in Alberta; or has obtained a letter from Alberta Advanced Education Industry Training or AAIT, in which it is stated the person is eligible to challenge the examination for the trade. However Service Canada has decided that all foreign nationals in these trades must follow this agreement and therefore an LMO will not be issued for these trades. This effectively means that all foreign trade Millwrights and Carpenters without the required number of hours may not enter the Alberta Province and those already working in Alberta would have to leave while their permanent residence applications would be refused. Matrixvisa Inc wrote a letter to the Minister of CIC on 29 August 2012.
On 27 Sept 2012 Citizenship and Immigration Canada clearly indicates that the Pilot Project is not compulsory as Matrixvisa Inc. argued by revising the Operational Bulletin 279D dated 27 Sept 2012.
14. Policy Issues: Which Canadian Federal Agency Decides If A Foreign Worker May Work In A Regulated trade
Since 2005 Service Canada (acting on behalf of Human Resourses and Skills Development) has demanded an approval from a foreign worker to work in a regulated trade in the province of Alberta before a Labour Market Opinion (LMO) could be approved. This seemed to have spilled over to LMOs being requested on behalf of employers, in Saskatchewan as well. This policy was not clearly published and also ultra-vires (outside the scope of the mandate of Service Canada). Matrixvisa Inc. expressed concerns about this policy to the Minister of HRSDC in two letters and after 10 months the policy was finally changed. The result is that foreign workers can arrive in Canada 5 weeks faster, as a work permit can be requested while the credential assessment is in progress.
The sequence of events was as follows:
a. Matrixvisa Inc wrote a letter to the Minister of HRSDC in August 2011. The letter can be seen here: Policy Enquiry.
b. The Director General of Foreign Workers sent a response in August 2011 in which it was explained that evidence of eligibility to work in a regulated occupation may not be requested before an LMO is issued. This response can be seen here: Response.
c. Service Canada refused to implement the above mentioned policy of their own headquarters in Ottawa. Subsequently another letter was written by Matrixvisa Inc to the Minister of HRSDC in April 2012 and that letter can be seen here: Follow-up Policy Enquiry.
d. On 9 July 2012 Citizenship and Immigration Canada (CIC) published an Operational Memorandum in which it was stated that effective 1 August, CIC will be the only government body, responsible for checking whether applicants may work in regulated trade in the province of Alberta and not Service Canada. The policy can be seen here: CIC policy statement.
13. Policy Change Lobbied: Foreign Trained Industrial Electricians Now Also Recognized In Province of Saskatchewan
One of the cornerstones of Matrixvisa Inc. is to lobby for policy changes for an improved immigration system both on a federal and national level. We have a track record of communicating with all levels of government to improve policy to ensure highly skilled individuals can immigrate to fill vacant positions. One of our first successes was to ensure foreign trained journeymen were allowed to have their credentials assessed in Ontario even before arriving in Canada (May 2007).
During August 2011 the Saskatchewan Apprenticeship and Trade Certification Commission (SATCC) refused to allow a foreign national to work as an Electrician in SK (also a qualified Industrial Electrician). Essentially the SATCC indicated that only Construction and Maintenance Electricians were able to enter the Province of SK and not Industrial Electricians. Matrixvisa Inc. did not agree with this ultra vires decision and indicated to the SATCC that the Electrical Inspection Act of 1993 and other documents of the SATCC does not prevent the entry of foreign trained Industrial Electricians into the province of Saskatchewan. Matrixvisa Inc. approached the Saskatchewan Premier for assistance on 1 Feb. 2012 and within the same month the SATCC changed its policy to also allow foreign trained Industrial Electricians to enter the province of SK under the title “Electrician”. Due to the efforts of Matrixvisa Inc., foreign trained Industrial Electricians can now enter the Province of Saskatchewan to fill positions for which Canadians can not be found.
The sequence of events were as follows:
- Refusal letter from SATCC dated 31 August 2011
- Matrixvisa Inc. Letter to the SATCC dated 1 December 2011
- Letter to the Premier of Saskatchewan Mr. Brad Wall dated 7 February 2012
- Letter from Premier of Saskatchewan dated 15 February 2012
- Letter from the Minister of Advanced Education, Employment and Immigration dated 29 February 2012
- E-mail from SATCC dated 19 March 2012 confirming that the policy has being changed
- Minutes of SATCC meeting dated 29 February 2012 obtain under the Freedom of Information and Protection of Privacy Act in a letter dated 1 May 2012
- Approval by the SATCC to allow the foreign national (Industrial Electrician) to enter under the trade of Electrician in Saskatchewan
12. Policy Change: Expedited Processing for Labour Market Opinions (LMO’s)
For several years Matrixvisa Inc. has submitted complaints on behalf of our corporate clients in Canada to the Canadian Federal Government regarding processing times. This started with a meeting with the Policy Advisor of the Minister of Citizenship and Immigration in Ottawa on 6 July 2006. Most recently (on 28 March 2012) we again wrote to the Minister of Human Resources and Skills Development (HRSDC) expressing our serious concerns about processing times of Labour Market Opinions. On 1 May 2012 the Director General of Foreign Workers of HRSDC replied and indicated that a change in policy had been implemented. On 25 April 2012 an Accelerated Labour market Opinion or A-LMO policy became effective and LMOs can now be issued in 10 working days in stead of 12-16 weeks.
- Letter to Minister of HRSDC dated 28 March 2012
- Response from HRSDC dated 1 May 2012
- Change in Policy dated 25 April 2012
11. Policy: Matrixvisa’s Director Requested to Attend Ontario Immigration Strategy Policy Session During April 2012
Matrixvisa Inc was requested by the Ontario Government to attend a policy session immigration round table meeting to improve the Immigration strategy of the Ontario Government. Matrixvisa Inc. with a small handful of law firms in Ontario as well as Industry organizations attended the first round table meeting on 17 April 2012 and was recognized for participation.
10. Financial Analyses: Test of Genuineness Regarding Labour Market Opinions (LMO’s)
September 18, 2011
In terms of the Immigration and Refugee Protection Regulations (IRPR) 200 (5), effective as of 1 April 2011, Human Resources and Skills Development Canada / Service Canada (HRSDC/SC) must assess the genuineness of job offers in Labour Market Opinions (LMOs). The Canadian Border Services Agency / Citizenship & Immigration Canada (CBSA/CIC) must also conduct the same assessment for job offers that are exempt from LMOs.
Read further at link about article published in September 2011 in IMMQuest.
– Regulations and Rules of Service Canada
– Service Canada’s Interpretation and Tactics
– Regulations and Rules of CBSA / CIC and Comments
– CBSA /CIC’s Interpretation
– Advice to Immigration Representatives – Conclusion
9. Matrixvisa’s Director: Cobus Kriek’s Presentation to the Parliamentary Standing Committee on Citizenship & Immigration – Changes
October 18, 2010
On 27 October 2010 Cobus Kriek appeared as a witness before the Parliamentary Standing Committee on Citizenship and Immigration in Ottawa about changes to the Immigration and Refugee Protection Act. His presentation to the committee can be seen here.
8. The Labour Shortage Factor in LMO’s
October 18, 2010
Pursuant to section 203(3) of the Immigration and Refugee Protection Regulations, the Department of Human Resources Development must provide an opinion that shall be based on 6 factors before a labour market opinion (LMO) is issued. One of these six factors is whether the employment of the foreign national is likely to fill a ‘labour shortage’ [Reg 203(3)(c)].
Read at link about the article published in October 2010 IMMQuest.
– Existing Sources of Authority and Comments
– Geographical Nature of a Labour Shortage
– Employment Insurance Beneficiaries
– Vacancy Rates
– Workplace and Employee Survey
– Survey of Labour and Income Dynamics
– Canadian Occupational Projection System
– Labour Force Survey
– CANSIM Tables
– Other Reports
– Practitioner Research
7. Unions and Disputes in LMO’s
April 18, 2010
Most foreign workers require Labour Market Opinions to work in Canada. In the process of providing a labour market opinion the relevant officer must evaluate 6 factors pursuant to Immigration and Refugee Protection Regulation 203 (3):
(a) whether the employment of the foreign national is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
(b) whether the employment of the foreign national is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
(c) whether the employment of the foreign national is likely to fill a labour shortage;
(d) whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;
(e) whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and
(f) whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.
The author completed an analyses of the existing policy and interpretation of Regulation 203 (3) (f) : ‘the roles of unions in LMOs’.
Part I: Published March 2010 in Canada’s Immigration Law Magazine, IMMQUEST Unions and Disputes in LMOs … HRSDC Rules and Guidelines, Challenges and Suggestions
Part II: Published April 2010 in Canada’s Immigration Law Magazine, IMMQUEST Unions and Disputes in LMOs … What should Immigration Practitioners Do?
6. Challenges of Inter-Company Transfer Policy
November 18, 2008
Most foreign workers require Labour Market Opinions to work in Canada. However there are exemptions and two of these exemptions are managers and specialized knowledge workers that are working for foreign subsidiaries/branches. These skilled professionals may obtain a work permit to work in Canada under certain conditions. The author identified 4 challenges with the existing policy and conditions of transfer and suggested changes in policy in this article.
5. Articles about Work Permits for Skilled Foreign Workers: Labour Market Opinion LMO) and Arranged Employment Opinion (AEO)
February 18, 2008
In order for most skilled foreign workers to work in Canada on a temporary work permit, the employer needs to request a Labour Market Opinion (LMO) from Service Canada (the provincial representatives of Human Recourses Skills Development or HRSDC) if the position is not exempt from an LMO. Service Canada is required to evaluate 6 factors only before their opinion is provided (such as: the wage must be sufficient to attract Canadian Citizens and Permanent Residents, recruitment efforts, etc). Some foreigners could also obtain expedited processing with an Arranged Employment Opinion (AEO) for which the employer must prove that the job offer is genuine. Many Canadian employers choose to use the services of a qualified person (lawyer, licensed consultant or Quebec notary) to represent them in these applications. This article’s focus is on the rights of employers to use legal council and the obligation of Service Canada to communicate with these third parties during LMO and AEO requests.
Part I: Published February 2008 in Canada’s Immigration Law Magazine, IMMQUEST Third Party Representation in LMOs and AEOs … Foreign Worker Officers and the use of third party representatives
Part II: Published March 2008 in Canada’s Immigration Law Magazine, IMMQUEST Third Party Representation in LMOs and AEOs … Possible reasons why the existing rules are not followed
Part III: Published April 2008 in Canada’s Immigration Law Magazine, IMMQUEST Third Party Representation in LMOs and AEOs … Suggestions for the HRSDC Foreign Worker Section
4. Article about Skilled Foreign Workers and Immigration Regulation 203(3)(d): Wages
May 18, 2007
Our director Cobus Kriek, published an article in January 2006 for one of Canada’s Immigration Law Magazine: IMMQUEST.
Titled: “Wages Paid To Foreign Workers
3. Lobbying for Provincial Policy Change: Credentials of Tradesman
May 16, 2007
After a two-year struggle and constant refusal by the Ontario Ministry of Training Colleges and Universities to assess the credentials of foreign trained journeyman (artisans such as electricians, heavy duty mechanics and millwrights) while these journeyman were overseas led to the submission of an Access to Information Request (April 2007) that requested the disclosure of the Ministry’s policy regarding the assessment of credentials of Foreign trained journeyman. With this request bench marking from other provinces in Canada was provided to demonstrate to the Ministry the best practices in other provinces. Ten reasons were also provided why this should be possible – with specific reference to the Immigration and Refugee Protection Act of Canada.
On 16 May 2007 the Ontario Ministry of training Colleges and Universities responded and finally it was possible to assess the credentials of a foreign trained journeyman/artisan without the necessity of that person being inside Canada.
2. Article about Work Permits for Skilled Foreign Workers: Responsiveness (II)
January 18, 2006
Our director Cobus Kriek, published an article in January 2006 for one of Canada’s Immigration Law Magazines: IMMQUEST.
Titled: Is Service Canada and CIC Responsive to Canada’s Labour Shortage? Part II
1. Work Permits for Skilled Foreign Workers: Responsiveness (I)
December 18, 2005
Our director Cobus Kriek, published an article in December 2005 for one of Canada’s Immigration Law Magazine: IMMQUEST.
Titled: Is Service Canada and CIC Responsive to Canada’s Labour Shortage? Part I.