Mega Trends in North American Business Immigration

By Roxanne Israel, EY Law LLP

Posted: 14th August 2017 08:35

Workplace dynamics, changing governments and labour market protectionism are influencing a shift in immigration policy resulting in comprehensive reform in North America. While the new US administration’s recent Executive Order, travel ban and subsequent litigation continues to grab headlines, Canada is also driving change in their temporary and permanent residence immigration processes. The neighbouring countries are both focusing on security, trade, domestic employment and immigration program integrity, however, their approach and objectives vary. Organisations carrying out cross-border business in North America will need to be more diligent than ever to keep abreast of changes and ensure compliance.
 
Made in the USA Model
 
Following the initial Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States in January, 2017, companies scrambled along with the rest of the country to understand the impact for employees and their families, business travellers, and those stranded outside of the country. Future business trips, assignments and visa extensions were all thrown into question as mobility advisors tested their communication protocols and travel tracking processes.
 
Litigation led to a restraining order suspending the implementation of the travel ban and subsequent clarifications regarding exceptions for green card holders and existing visa holders. Companies are now paying closer attention as a second Executive Order was executed on 6 March 2017 reconfirming much of the steps outlined in the initial Order with specific exemptions for valid visa holders and green card holders. Other updates include the removal of Iraq from the list of countries affected by the temporary travel ban and confirmation that the Department of Homeland Security has 20 days to perform a global country by country review of identity and security information that each country provides to the US to support the granting of immigration benefits. Further, the updated Executive Order does not apply to dual nationals traveling on a passport issued by a non-designated country, those holding diplomatic visas as well as those already granted asylum or refugee status in the US prior to the date of the Order.
 
Areas of focus for future legislation and executive orders are anticipated to include enhanced border security, enforcement of immigration laws, a review of certain work authorisation and business visitor categories and an overall US first approach. Increased employer accountability through inspections mirrors steps taken in Canada over the past two years where a more robust administrative penalty regime was implemented to enforce program integrity through fines, suspension of program access and a public listing of non-compliant employers.
 
It is anticipated that the US permanent residency system will be reviewed and changes could include steps such as eliminating the EB-5 visa program, reallocation of visas to other employment based categories, eliminating the per country numerical limitation for employment-based immigrants and/or reviewing the per country numerical limitations for family based applications. In his Congressional address, President Trump made note of possibly moving to a points based merit system which is similar to the human capital system in Canada. The Canadian Express Entry intake management system ranks potential immigrants based on a number of factors including age, education, language ability, work experience and ties to Canada. Only those candidates who rank highest in the pool are invited to apply and submit a permanent residence application. This has helped the Canadian government eliminate processing backlogs and move to a more “just-in-time” system with 80% of complete applications being processed within six months.
 
Globally, governments continue to be focused on business travelers as a source of revenue generation through taxation. In the US, a formal clarification of acceptable business (B-1) activities may lead to a narrower interpretation but will in turn provide greater certainty for travelers and organisations who often struggle with permissible activities including in the areas of training, after-sales and internal shared services. Canada, on the other hand, is considering expanding work permit exemption categories to include short term work for high skilled workers for periods of less than 30 days as part of its Global Skills Strategy.
 
Canada’s Global Skills Strategy
 
Canada has currently embarked on a country-wide consultation process to define a new Global Skills Strategy. Consistent with a revamping of Canada’s Express Entry intake system for permanent residence, Canada is seeking to attract highly skilled talent on both a temporary and permanent basis. Suggestions have included streamlined and faster processing for high skill workers including those in senior management roles and professional occupations, a simplified process for short-term work (less than 30 days), a dedicated service channel for high growth / high potential companies investing in Canada as well as a renewed focus on benefits to the local labour market (filling labour shortages, skills transfer and job creation) within its Temporary Foreign Worker program. The signal from Prime Minister Justin Trudeau and Canada’s new Immigration Minister, the Honourable Ahmed D. Hussen MP, is that Canada is open for business and is welcoming highly skilled workers, particularly those in Science, Technology and Engineering occupations to support Canadian business.
 
Similarly, the intake management system used to select economic immigrants to Canada has been adjusted to balance the benefits of a confirmed job offer in Canada versus broader human capital including education, language ability, foreign work experience and age. Confirmed job offers are now worth 50 points under the updated Comprehensive Ranking System versus the previous 600 points that virtually guaranteed an invitation to apply for permanent residents. Senior Executives who often lose points in the age category are now eligible for 200 bonus points if they have an offer under the National Occupation Classification skill level 00 thereby increasing their chances of an invitation. Canadian education has also been rewarded with 50 bonus points to support international students who graduate from a Canadian post-secondary institution in being able to remain in Canada.
 
The impact of the November, 2016 changes to the Comprehensive Ranking System (CRS) will become clear over the next several months but in the interim, we are seeing the points score required to receive an invitation decreasing as more applicants are selected from the Express Entry pool. Applicants with more diverse backgrounds and work experience are now being selected – primarily in higher skilled occupations. Separate draws for the Federal Skilled Trades program may be required in order to meet levels targets under the new points’ matrix.
 
It is also anticipated that Canada will reveal changes to the Temporary Foreign Worker Program as part of the upcoming Budget bill including responding to recommendations made in the Report of the House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities in September, 2016 which called for improved program management and efficiency amongst various program specific changes.
 
2017 and Beyond
 
The pace of change and program updates will continue over the course of the next year as both Canada and the US re-evaluate their temporary and permanent residence programs. Implementing policies which encourage domestic labour market growth while continuing to attract the best and the brightest globally will be a challenge for both countries. Border security, refugee protection and program integrity will be recurring themes. Companies doing business in North America would be well advised to monitor immigration updates carefully, understand their foreign traveler populations, have communication protocols ready to cascade breaking news and continuously review their immigration strategy to support temporary workers as well as those seeking to localise.
 
Roxanne Israel
| Partner*
 EY Law LLP**
Calgary City Centre, 2250, 215 2nd Street S.W., Calgary, AB T2P 1M4 Canada
Phone: +1 403 206 5086 | Fax: +1 403 206 5363 | Cell Phone: +1 403 815 9902
Roxanne.N.Israel@ca.ey.com| eylaw.ca
Assistant: Wendy Fish | Phone: +1 403 206 5614 | Wendy.Fish@ca.ey.com
 
Roxanne Israel is a partner with EY Law LLP based in Calgary, Alberta with more than 10 years of experience in Corporate immigration. She provides strategic advice to companies with respect to Canadian and global immigration matters. Areas of specialty include visas, work permits, permanent residence, and citizenship. She also provides advisory services related to policy development, global immigration programs and risk management. Roxanne has specific experience conducting reviews and audits of existing corporate immigration programs to minimise risk and promote compliance. Roxanne earned a Bachelor of Arts degree from McGill University, an LLB from the University of Victoria and a Masters of Studies in International Human Rights law from Oxford University.
 
* Services provided through Roxanne Israel Professional Legal Corporation
**Affiliated with Ernst & Young LLP in Canada

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