Canadian citizenship offers numerous advantages including healthcare, the right to vote, and increased job opportunities, to name a few. The Citizenship Act establishes the criteria for obtaining Canadian citizenship, and circumstances under which an individual’s citizenship can be revoked or lost. Under the Canadian Citizenship Act, a person born outside of Canada would only be granted citizenship through naturalization or if one of their Canadian parents was born in Canada or was naturalized as a citizen of Canada before the child was born—citizenship by descent.

This created a generation of “Lost Canadians” which imposed a first-generation limit to those born outside of Canada. In other words, citizenship by descent did not apply to second and further generations. As a result, many individuals lost their citizenship due to this restrictive legislation. Bill C-71, An Act to Amend the Canadian Citizenship Act (2024) was introduced on May 23, 2024, by the Honorable Marc Miller who said,

“The current rules generally restrict citizenship by descent to the first generation, excluding some people who have a genuine connection to Canada. This has unacceptable consequences for families and impacts life choices, such as where individuals may choose to live, work, study or even where to have children and raise a family. These changes aim to be inclusive and protect the value of Canadian citizenship, as we are committed to making the citizenship process as fair and transparent as possible.”

Substantial Connection Test

With Bill C-71, citizenship will extend beyond the first generational limit for citizenship by descent. Bill C-71 establishes a new framework for citizenship by descent, the substantial connection test. A Canadian parent born outside of Canada must have a substantial connection to Canada in order to pass citizenship to their child born abroad.

To show that a substantial connection to Canada exists, the parent who was born abroad must have been physically present in Canada for 1,095 days before the birth or adoption of their child. This remedies the issue of “Lost Canadians” who would otherwise have been granted citizenship if it were not for the first-generation limit.

What Can be Done in the Meantime?

Although Bill C-71 passed the first reading on May 23, 2024, the bill has not yet been granted Royal Assent and become law. The Government of Canada recognizes the importance of this new legislation and so we expect to see the changes implemented in the foreseeable future. For individuals with an urgent need for recognition, they can apply under Subsection 5(4) of the Citizenship Act which permits the Minister to grant citizenship to alleviate cases of statelessness for individuals with special circumstances and unusual hardship.

Conclusion

Bill C-71 takes a significant step in rectifying the long-standing difficulties “Lost Canadians” face in obtaining citizenship. Bill C-71 would apply retroactively, meaning any child who was previously excluded from obtaining citizenship due to the first-generation limit, is now eligible to receive Canadian citizenship.

If you or your loved ones are affected by these changes, it’s crucial to act now. Our expert immigration law team is here to help you navigate the complexities of Bill C-71 and secure your Canadian citizenship. To take the first step, contact Benjamin Grubner today by emailing benjamin.grubner@devrylaw.ca or calling 416-446-3328.

This blog post was co-authored by summer law student, Barbara Attia.

Sources:

Bill C-71: An Act to amend the Citizenship Act (2024), The Government of Canada (May 23, 2024), online: <https://www.canada.ca/en/immigration-refugees-citizenship/news/2024/05/bill-c-71-an-act-to-amend-the-citizenship-act-2024.html>.

Government of Canada introduces legislation for citizenship by descent, The Government of Canada (May 23, 2024), online: <https://www.canada.ca/en/immigration-refugees-citizenship/news/2024/05/government-of-canada-introduces-legislation-for-citizenship-by-descent.html>.

House of Commons Debates, 44-1, No 316 (23 May 2024) at 1005 (Hon Marc Miller).

A change in 2018 that now allows a maximum penalty of 10 years imprisonment for impaired driving has impacted the eligibility of those who have been convicted of an impaired driving charge and are seeking or have permanent resident status in Canada.

In 2018, Bill C-46 became law and cracked down on drivers under the influence. This change means that an impaired driving charge may now result in 10 years imprisonment. This has had a significant impact on those seeking, and those who have obtained permanent resident status in Canada.

The Immigration and Refugee Protection Act (“IRPA”) lays out the inadmissible conduct that falls under “serious criminality”. Section 36(1) reads as follows:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

As laid out above, there are a number of offences under this section of IRPA that would deem an individual “inadmissible” to Canada. With the changes that came into force with Bill C-46, impaired driving is now one of them. The result is that it does not matter whether you were sentenced to the maximum penalty. If you were convicted of an act that is punishable by a maximum term of imprisonment of at least 10 years, you are inadmissible to Canada on grounds of serious criminality.

For foreign nationals seeking entry into Canada, the repercussion of being deemed inadmissible means that they would likely be refused entry into Canada even for a short visit. For permanent residents of Canada, being deemed inadmissible means that they may lose their permanent resident status and are at risk of facing deportation. Whether convicted of a DUI in Canada or another country, the risk remains the same.

After a DUI conviction,  Canada Border Services Agency (“CBSA”)  will notify the offender that the offence is considered a “serious criminality” offence. The offender would then have an opportunity to respond and CBSA would determine whether or not to prepare a Section 44 report to commence the deportation process and hold an admissibility hearing. The admissibility hearing is held before the Immigration Division of the Immigration and Refugee Board of Canada (IRB). This hearing is to determine whether CBSA was correct in labelling the offender as someone who meets the definition of “Serious Criminality” under the Act. If the Board determines that the offender meets the “Serious Criminality” definition, the offender is now inadmissible to Canada, and the Board will issue a removal order. It is important to note that there is no appeal option for permanent resident DUI offenders who were sentenced to 6 months or more of prison time.

It is imperative that permanent residents of Canada fully understand the immigration repercussions of a DUI conviction before entering a guilty plea to a DUI charge. Criminal lawyers will often wisely advise their client to plead guilty (often when presented with multiple charges being dropped in exchange for a guilty plea to the DUI), but without fully considering or understanding the effect this will have on their client’s permanent resident status in Canada.

If you are currently a permanent resident in Canada and have been charged with impaired driving, or are seeking permanent resident status in Canada, you may have options. If this is the case, an experienced lawyer, knowledgeable in the complex intricacies of Canadian immigration law, is essential in solving your immigration needs. If you are interested in seeking further guidance on this topic, please contact Benjamin Grubner, immigration lawyer at Devry Smith Frank LLP at 416-446-3328 or Benjamin.grubner@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

This blog was co-authored by articling student Samantha Lawr.

Residency Requirements to Maintain Canadian Permanent Resident Status

If you are seeking to maintain your permanent resident status in Canada, you must meet the residency requirements set by Immigration Refugees and Citizenship Canada (IRCC). As a general rule, to keep your permanent resident status, you must have been in Canada for at least 730 days over the course of the last five (5) year period. It is important to note that these 730 days do not need to be continuous. A permanent resident is generally free to leave and enter Canada at any time with a valid permanent residence card. Most permanent resident cards expire after five years.

There are some exceptions in relation to this residency requirement, as some of the time you spend outside of Canada may count towards your permanent resident status. The following are three exceptions to the permanent residency requirement:

1. You are sent to work outside of Canada full-time by a Canadian employer with the expectation that you will return and resume your employment in Canada
2. You accompany your spouse, common-law partner or parent who is a permanent resident and who is sent to work full-time outside Canada by a Canadian employer with the expectation that they will return and resume their employment in Canada.
3. You live outside of Canada with your spouse, common-law partner or parent who is a Canadian citizen.

If you meet any of the above-noted exceptions, the time spent in a foreign country during these activities may be credited as time spent in Canada, towards the 730-day requirement. These exceptions only apply to maintaining your permanent resident status.

Residency Requirements to Apply for Canadian Citizenship

When applying for Canadian citizenship, you must meet distinct residency requirements, in addition to the other eligibility criteria as outlined by  Immigration Refugees and Citizenship Canada (IRCC). To meet the residency requirements for citizenship, you must have been physically present in Canada, as a permanent resident, for at least 1095 days in the preceding five (5) years from the date you sign the application.

There are two (2) counting exceptions that may allow for time spent outside of Canada, or time spent in Canada prior to becoming a permanent resident, to be credited toward the 1095-day citizenship requirement. The following exceptions are only applicable to citizenship applications:

1. You are legally in Canada as a “temporary resident” or a “protected person”
2. You are outside of Canada as a Crown servant or are accompanying a family member who is a crown servant.

It is important to note that each day spent in Canada as a temporary resident or protected person only counts as one-half day when calculating the number of days for your citizenship application, to a maximum of 365 days. For example, if you were a student legally studying at a Canadian university for 500 days (i.e. a temporary resident), only 250 of those days would be credited as time spent in Canada for your application. Furthermore, if you studied in Canada for 800 days, you would only be credited with 365 days, as this is the maximum number of days that can be credited as a temporary resident or protected person.

Time That Does Not Count Towards Any Residency Requirements

If you are incarcerated, under a probation order, a paroled inmate, or illegally present in Canada (i.e overstaying your visa), this time will not count towards any of the above-noted residency requirements.

Failing to Meet the Residency Requirements

A failure to meet the residency requirements does not automatically result in the loss of your permanent residence status. Even if your permanent resident card expires, you do not lose your status. Permanent resident status can only be lost in certain circumstances, such as voluntarily renouncing your status or having a removal order made against you.

If you wish to maintain your permanent residence status but have not met the residency requirements in the preceding five (5) years, you have the option of waiting to apply until you meet the above-noted criteria. However, during the time that your permanent resident card is expired, it is not advisable to travel outside of Canada. If you are outside of Canada when your permanent resident card expires, you will need to apply for a “Permanent Resident Travel Document”, which may delay your return to Canada. In any event, you must be in Canada to apply for a new PR card.

Likewise, if you are seeking to become a Canadian citizen and have not met the residency requirements in the previous five (5) years, you can simply wait to apply until you have met the 1095-day requirement in the preceding five (5) years from your application date.

An experienced lawyer, knowledgeable in the complex intricacies of Canadian immigration law, is essential in solving your immigration needs. If you are looking to submit an application to Immigration Refugees and Citizenship Canada or are interested in seeking further guidance in US or Canadian immigration law, please contact Benjamin Grubner, lawyer at Devry Smith Frank LLP at 416-446-3328 or at Benjamin.grubner@devrylaw.ca

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

This blog was co-authored by Articling Student Jaimin Panesar*

The Global Talent Stream (“GTS”) operates under the Temporary Foreign Worker Program (“TFWP”) as an efficient way for innovative Canadian firms to acquire the top foreign talent to fill a particular role when there is a shortage of domestic workers in that area.

All those hiring through the GTS, must get a Labour Market Impact Assessment (“LMIA”). An LMIA will confirm whether there is truly a need for a temporary foreign worker (“TFW”) due to the absence of Canadians or permanent residents who can fill the position that an employer is hiring for. Before applying to hire through the GTS, make sure that you need an LMIA. Companies looking to transfer highly skilled or managerial employees to its affiliate in Canada can avoid the LMIA process.

Program Eligibility

If you need an LMIA, then you can hire through the GTS. There are two categories to which employers can apply for the GTS: Category A and Category B.

Category A

To be eligible for Category A, an employer must meet two criteria:

1. A designated partner of the GTS has referred them to the program; and
2. The employer is hiring an individual to fill a unique and specialized position whose talent will help the employer “scale-up and grow”.[i]

WHAT DOES “UNIQUE AND SPECIALIZED” MEAN?

There are several markers of a unique and specialized position:

1. Compensation for a unique and specialized position will be the higher of an annual base salary of at least $80,000.00 ($38.46/hour), or the prevailing wage;
2. Advanced knowledge of a particular industry; and
3. An advanced degree in one of the employer’s areas of specialization, and/or at least five years of experience in this specialized field.

Essentially, an individual with unique and specialized talent would earn a higher-than-average wage and be extremely knowledgeable of the innovative field, either because of their education or job experience.

Category B

Category B, on the other hand, does not require referrals. An employer applying under this category will instead be looking to hire a highly skilled TFW to fill a position in one of the high-demand occupations mentioned on the Global Talent Occupations List.

How to Apply for an LMIA

Other than in Quebec, British Columbia, and Manitoba – for which certain parts of the GTS application are unique to those provinces – the process of hiring through the GTS is the same across Canada.

If you are an eligible employer – either under Category A or Category B – and you need an LMIA, these are the steps to follow to get permission from Employment Development Services Canada (“EDSC”) to hire a TFW for your open position:

1. Pay your processing fees;
2. Complete your Labour Market Benefits Plan (LMBP)
   1. The company must commit to at least one mandatory benefit and two complementary benefits in its LMBP;
   2. The LMBP will be negotiated with a program officer;
   3. Upon LMBP approval, the GTS LMIA can proceed.
3. Review and ensure your position abides by the GTS requirements for
   1. Wages;
   2. Business legitimacy;
   3. Duties and conditions;
   4. Health insurance;
   5. Workplace safety;
   6. Language;
   7. Employment agreements; and, if applicable
   8. Unionized positions.
4. Gather your supporting documents and apply for an LMIA through the portal.

Note that if you have not employed a TFW within the previous six years of your impending LMIA application, the EDSC considers you to be a new employer, which requires additional steps.[ii]

The Results of an LMIA

An LMIA will yield one of two results: positive or negative. A positive LMIA means that EDSC has determined that hiring a TFW in this circumstance will either have a positive or neutral impact on the Canadian labour market.[iii] A negative LMIA means the opposite and will be based on a number of aggravating factors.[iv] Only those employers who receive a positive result may hire talent through the GTS.

Conclusion

The information contained in this blog does not constitute legal advice. Please speak to an immigration lawyer if you have any questions/concerns relating to this blog or if you need help with an immigration law matter.

[i] Program requirements for the Global Talent Stream: https://www.canada.ca/en/employment-social-development/services/foreign-workers/global-talent/requirements.html#h19

[ii] New employers: https://www.canada.ca/en/employment-social-development/services/foreign-workers/global-talent/requirements.html#h6:~:text=on%20your%20behalf.-,New%20employers,-Employers%20who%20haven%E2%80%99t

[iii] Temporary Foreign Worker Program (TFWP): Positive Labour Market Impact Assessment (LMIA) Employers List: https://open.canada.ca/data/en/dataset/90fed587-1364-4f33-a9ee-208181dc0b97

[iv] Temporary Foreign Worker Program (TFWP): Negative Labour Market Impact Assessment (LMIA) Employers List: https://open.canada.ca/data/en/dataset/f82f66f2-a22b-4511-bccf-e1d74db39ae5

François-Philippe Champagne, the Minister of Innovation, Science and Industry, on behalf of Sean Fraser, the Minister of Immigration, Refugees and Citizenship recently announced a new STEM round for the category-based selection in the Express Entry system which opened on July 5, 2023. As immigration accounts for nearly 100% of labour force growth in Canada, policy-makers hope that this will draw in talented candidates and address labour shortages in Canada’s science and technology sector.

What is Express Entry?

Express Entry is Canada’s online application management system for permanent residency applications for skilled workers. Three immigration programs are managed through Express Entry:

1. Canada Experience Class
   1. Skilled workers with Canadian work experience are eligible for this class.
   2. You must:
      1. have at least one year of skilled work experience in Canada in the last three years before your application; and
      2. your work experience must have been gained while under temporary resident status with authorization to work.
   3. You are not eligible if:
      1. you’re a refugee claimant in Canada;
      2. you were working without authorization; or
      3. your work experience was gained while you did not have temporary resident status in Canada.
2. Federal Skilled Worker Program
   1. Skilled workers with foreign work experience are eligible for this class.
   2. You must meet the minimum requirements for skilled work experience, language ability, and education.
   3. If so, Immigration Canada will assess your eligibility based on the following factors and assign you a score out of 100:
      1. age;
      2. education;
      3. work experience;
      4. the presence of a valid job offer;
      5. English or French language abilities; and
      6. adaptability to life in Canada.
3. Federal Skilled Trades Program
   1. Skilled workers who are qualified in a skilled trade are eligible for this class.
   2. You must:
      1. meet the minimum language requirements;
      2. have at least two years of full-time paid work experience (or four years of part-time paid work experience) in a skilled trade in the past five years before you apply
      3. meet the job requirements for that skilled trade set out in the National Occupational Classification (besides a certificate of qualification); and
      4. have a
         1. valid job offer for full-time employment lasting a minimum of one year, or
         2. a certificate of qualification in that skilled trade issued by a Canadian federal, provincial, or territorial authority.

If you are eligible under one of these programs and submit your profile to Express Entry, you’ll be ranked using the Comprehensive Ranking System (CRS). This points-based system assesses your profile and ranks it in the Express Entry pool where you’re compared to other candidates.

To receive an invitation to apply, you must have a score above the minimum threshold for your round of invitations. Candidates with the highest scores are invited to apply and have sixty days to submit their applications. Most complete applications with supporting documentation are processed within six months.

Category-Based Selection

Earlier this year, on May 31, 2023, Minister Fraser announced the launch of a new category-based selection for the Express Entry system. This allows Canada to issue invitations to candidates with in-demand skills, training, or language abilities, to address Canadian labour shortage needs.

When there is a category-based round of invitations, the top-ranking candidates in the Express Entry pool who fall into the selected category will be invited to apply for permanent residence.

In 2023, category-based selection invitations will focus on candidates who fall under the following categories:

• strong French language proficiency;
• healthcare occupations;
• STEM occupations;
• trade occupations;
• transport occupations; and
• agriculture and agri-food occupations.

Immigration Canada chooses these categories based on labour market data and projections and feedback received from provinces, territories, and other stakeholders in Canada. They will be responsible for reporting to Parliament on the categories chosen, the process of and reasons for choosing them, how the categories are established, and the number of invitations issued for each category.

STEM Round for Category-Based Selection

The STEM round in early July is the first of the new category-based selection invitations. It focuses on candidates that can drive growth and innovation within Canada’s science and technology sector, including data scientists, mathematicians, statisticians, actuaries, software developers and programmers, and electrical and electronics engineers.

Minister Fraser says that:

Canada’s ability to remain at the cutting edge of science, technology, engineering and mathematics depends largely on our country’s ability to recruit top talent from around the world. I’m excited to announce this STEM category-based selection round with my colleague, Minister Champagne, which will increase permanent residence for skilled workers with STEM experience. We look forward to welcoming these talented and innovative newcomers to our country.

This announcement furthers Canada’s efforts in their recently announced Tech Talent Attraction Strategy. Here, Canada seeks to use immigration to meet their innovation priorities and secure their place as a world leader in new technologies. Other strategies include introducing new work permits for H-1B visa holders, a new Innovation Stream to the International Mobility Program, reducing backlogs for the start-up visa, a two week processing time for the Global Skills Strategy, and allowing digital nomads working remotely to work in Canada for up to six months with only visitor status.

This is only the first of Canada’s new category-based selection round of invitations, which are scheduled to continue throughout the year. On July 7, 2023, the Minister of Official Languages, Ginette Petitpas Taylor, announced the first Francophone round of category-based selection. More details on these initiatives are set to be announced over the coming weeks.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in our Immigration Law Group.”

This blog was co-authored by law student, Leslie Haddock.

The Provincial Nominee Program (“PNP”) allows foreign nationals to immigrate to Canada through provincial or territorial selection in partnership with Immigration, Refugees and Citizenship Canada (IRCC).

Each province and territory mandate their own nomination streams through requirements tailored to address the province’s economic and labour needs. Quebec and Nunavut do not participate in the Provincial Nominee Program.  Quebec has the authority to establish its own selection criteria for economic immigration.

Depending on the applicable stream, applicants may use Express Entry or the non-Express Entry process.  Applicants will also need to complete an immigration medical examination and submit police clearance certificates among other requirements.

Under the non-Express Entry Stream, applicants who meet the eligibility requirements may apply to the province or territory for nomination.

For the Express Entry Stream, applicants may apply to the province or territory for nomination.  If selected, applicants will indicate the nomination in the Express Entry profile.  Alternatively, an applicant may select provinces and territories of interest in the Express Entry profile, and a province or territory may send a corresponding “notification of interest” to the applicant.

In addition to the requirements under the Provincial Nominee Program, Express Entry candidates must meet the minimum criteria for Express Entry including eligibility for the federal government’s Express Entry immigration programs.

Provincial or Territorial Nomination: Ontario

The Ontario Immigrant Nominee Program (OINP) operates nine different streams for candidates under its program.  To qualify under OINP, applicants must register an expression of interest and receive an invitation to apply.

Candidates may apply if they meet the eligibility requirements under the following:

• Foreign Worker Stream: Designed for applicants who are skilled foreign workers with a job offer in Ontario.
• International Student Stream: Designed for applicants who are recent graduates with a job offer in Ontario.
• In-Demand Skills Stream: Designed for applicants in an in-demand occupation with a job offer in Ontario.

If an applicant has a Masters or PhD degree from an Ontario university, the applicant can apply for the following streams:

• Masters Graduate Stream: Designed for applicants who have obtained a masters degree from an Ontario university.
• PhD Graduate Stream: Designed for applicants who have obtained a PhD degree from an Ontario university.

If an applicant has the skills and experience that an Ontario employer requires, the applicant can submit an application through the federal government’s Express Entry program:

• Human Capital Priorities Stream: Designed for applicants who have the required skilled work experience, education, and language abilities.
• Skilled Trades Stream: Designed for applicants with Ontario work experience in an eligible skilled trade.
• French-Speaking Skilled Worker Stream: Designed for French-speaking applicants with strong English language abilities.

If an applicant is a foreign entrepreneur and wishes to establish a new business or grow an existing business in the province, the applicant may apply to the Entrepreneur Stream. To qualify, applicants must register an expression of interest and receive an invitation to apply.

The OINP is a designated referral partner under Canada’s Global Skills Strategy.

Conclusion

The PNP program allows skilled workers to establish permanent residence in Canada through the various economic pathways that Canada’s provinces and territories have to offer. While PNP programs may be suitable for skilled workers with the required skills and work experience for a particular stream, Canada also offers other programs that allow foreign nationals to immigrate to Canada based upon other considerations such as family reunification.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in the Immigration Law Group.

This blog was co-authored by student-at-law, Abby Leung

Entrepreneurs looking to start a business in Canada can turn to Canada’s Start-up Visa Program as an opportunity to obtain permanent residence in Canada through business immigration. Canada’s Start-Up Visa Program targets immigrant entrepreneurs with the skills and potential to build businesses that are innovative, create jobs for Canadians, and are competitive on a global scale.

Here is what you need to know about Canada’s Start-up Visa Program:

Eligibility

In order to be eligible for a Canadian start-up visa, applicants must meet four requirements: they must (1) have a qualifying business, (2) have a letter of support from a designated organization, (3) meet the language requirements, and (4) have sufficient settlement funds.[1] The Province of Quebec is in charge of its own business immigration program.

A qualifying business means that each applicant holds at least 10% of the voting rights attached to all outstanding shares of the company and together with the designated organization, they jointly hold more than 50% of the total voting rights attached to all outstanding shares of the company. At the time that the applicant receives permanent residence, the applicant must provide active and ongoing management of the business from within Canada, must ensure that an essential part of the operations of the business happens in Canada, and incorporate the business in Canada.[2]

A letter of support from a designated organization requires endorsement from a business group that has been approved by the federal government  to invest in or support possible start-ups. A designated organization can include a venture capital fund, angel investor group, or a business incubator. A list of designated organizations can be found here.[3]

All applicants must take a language test from an approved agency and meet the minimum level of the Canadian Language Benchmark 5 in either English or French in all of these areas: speaking, reading, listening, and writing.[4]

Applicants must also demonstrate that they have enough funds to support themselves and their dependents after arriving in Canada. The amount needed to demonstrate proof of financial support is based on the size of the applicant’s family and can be found here.[5]

Benefits of the Start-Up Visa Program

The Start-up Visa Program allows Canada to attract and retain high potential entrepreneurs who have an innovative and scalable business.  The economic benefits of hosting a successful start-up can lead to job creation, training and cultural advantages for Canada.

For prospective entrepreneurs, the program allows applicants a direct pathway for permanent residence in Canada and is open to all nationalities.  The program does not limit the applicant on what type of business he or she can conduct in Canada and there is no net worth requirement.

Determining the potential of a start-up can be challenging.  However, through approved business partners, immigrant entrepreneurs can access funding, professional contacts, and mentoring to set them on a path to success.  Applicants also have the opportunity to apply for a work permit while the application is in process.

A start up visa may be suitable for entrepreneurs who are able to secure the capital and support from designated organizations to establish and grow their business in Canada.

For other migrants looking to work in Canada, there are other temporary and permanent immigration programs that provide an opportunity to participate in the Canadian labour market and gain professional experience in Canada.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in the Immigration Law Group.

This blog was co-authored by student-at-law, Abby Leung

[1] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html

[2] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html

[3] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/designated-organizations.html

[4] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html

[5] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html

By Dayna Devonish-Montique and Abby Leung

Individuals who were convicted of a minor or serious criminal offence may be considered inadmissible to enter Canada. However, individuals can overcome this criminal inadmissibility either by applying for criminal rehabilitation or a record suspension/pardon. This blog will detail the requirements for both processes to determine eligibility to enter Canada.

Criminal Rehabilitation

Under Canada’s immigration laws, individuals who have committed or have been convicted of a minor or serious crime outside Canada may not be allowed to enter Canada and are considered “criminally inadmissible”. Depending on the crime, how long ago the crime was committed, and the individual’s behaviour since the crime was committed, individuals may still be allowed to come to Canada under this category if they are deemed rehabilitated or if an immigration officer approves an application for criminal rehabilitation.

Deemed rehabilitation under Canada’s immigration laws means that enough time has passed since the crime was committed so that the individual’s criminal history does not bar entrance to Canada. Individuals are eligible to apply for deemed rehabilitation at a port of entry if the individual only had one conviction in total or committed only one crime, at least ten years have passed since the completion of all sentences, the crime committed is not considered a serious crime in Canada, and the crime did not involve any serious property damage, physical harm to any person, or any type of weapon. If an applicant believes that they are eligible, they must provide required documents including a recent police certificate from the country they were convicted in, along with court documents for each conviction, a recent criminal record check, and a passport or birth certificate. If deemed rehabilitated, applicants will be allowed to enter Canada, provided that they meet additional requirements for entry such as visitor visa requirements. Any request for deemed rehabilitation is not guaranteed to be approved.

If an individual is not eligible to apply for deemed rehabilitation, they may apply for criminal rehabilitation if the criminal act occurred outside of Canada and if five years have elapsed since the act or since the end of the sentence imposed. An application for criminal rehabilitation for a US applicant requires submitting a state police certificate, an FBI police certificate, documents relating to the sentence imposed, and court judgments that demonstrate the charge/s, the verdict, and the sentence imposed, among other documents.

If an individual needs to travel to Canada but cannot apply for rehabilitation because five (5) years have not passed since the end of the sentence imposed or are not eligible to apply for a record suspension, they must request special permission to enter or remain in Canada. After reviewing the application, an immigration officer may advise that the applicant could apply for special permission (temporary resident’s permit) to enter Canada, or to advise that they do not recommend that the applicant travel to Canada.

Record Suspension (Pardon)

A record suspension (previously called pardon) allows people who were convicted of a criminal offence but have completed their sentence and demonstrated that they are law-abiding citizens to have their criminal record kept separate and apart from other criminal records. A record suspension has the effect of removing a person’s criminal record from the Canadian Police Information Centre (CPIC). However, a record suspension does not erase a convicted offence nor guarantees entry or visa privileges to another country. A record suspension can be revoked or cease to have effect if the applicant is convicted of a new indictable offence, is found to no longer be of good conduct, found to have made a misleading statement, or is found ineligible for a record suspension at the time the record suspension was ordered. If a record suspension is revoked or ceases to have effect, the record of offence is added back to CPIC. An applicant may apply for a record suspension if they were convicted of an offence in Canada under a federal act or regulation of Canada as an adult and/or were convicted of a crime in another country and were transferred to Canada while serving that sentence under the International Transfer of Offenders Act. An applicant does not need to apply for a record suspension if the applicant only received an absolute or conditional discharge, or were only convicted in a youth court or youth justice court.

To apply for a record suspension, an applicant must have completed all of their sentences which includes all fines, costs, restitutions, sentences of imprisonment, conditional sentences, probation orders, etc. The waiting period begins after an applicant has completed all of their sentences. The following table provides a short summary of the waiting periods:

If eligible to apply, applicants can apply directly to the Parole Board of Canada (PBC) for a Record Suspension. Applicants must provide their criminal record, court information for each of their convictions, local police record checks, and documents to support identification, among other forms.

Conclusion

While criminal rehabilitation and record suspensions appear similar on its face, an important difference is that criminal rehabilitation focuses on criminal offences committed outside Canada while record suspensions focus on criminal offences committed within Canada. When the conviction is inside Canada, rehabilitation is not an option and applicants can apply for record suspension. Conversely, when the conviction is outside Canada, record suspension is usually not an option (unless convicted of a crime in another country and were transferred to Canada while serving that sentence under the International Transfer of Offenders Act) and applicants can apply for rehabilitation. Important to note, if an individual committed offences both inside and Canada and, they require both an approval of rehabilitation and  a record suspension in order to be admissible to Canada. The request for criminal rehabilitation cannot be made until a record suspension is first approved, unless the individual has only one (1) summary conviction offence in Canada.

If you have any questions related to your immigration law matter, please visit our website or contact Dayna Devonish-Montique at Devry Smith Frank LLP at 705-526-9328 ext 101 or at dayna@prostlaw.com.

 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by student-at-law, Abby Leung

On January 3, 2023, Immigration Refugees and Citizenship Canada (IRCC), the federal department responsible for the processing of immigration applications, announced that Canada welcomed over 437,000 new immigrants in 2022.[1] This number is higher than the target set at 431,645 new immigrants in Canada by the end of 2022, and marks a new record for the number of Canadian permanent residence admissions in one year, breaking the previous record of over 405,000 new immigrants in 2021.[2]

In achieving this record, IRCC credits new technology, streamlined processing, and the use of online applications. IRCC processed over 4.8 million applications across all lines of business in 2022 which includes applications for permanent residence, temporary residence, and citizenship.  This is double the number of applications processed in 2021.[3]

IRCC has emphasized the importance of immigration as a key part of Canada’s long-term economic growth plan.  Economic migration addresses labour shortages and stimulates the Canadian economy by providing government and business with critical workers.  Shortages of skilled workers in industries such as healthcare, manufacturing, building trades and STEM (Science, Technology, Engineering and Math) are acute and require a high number of skilled immigrants and workers to fill these positions. New features in Express Entry will target qualified immigrants in these sectors.  Additional measures to promote economic growth include regional programs to address labour needs and in-demand skillsets for small towns and rural communities.

IRCC has also struggled to keep up with the backlog of applications resulting from the COVID-19 pandemic.  As pandemic-related restrictions eased, the number of processed applications steadily increased in 2022, with the federal government moving forward with its plan to boost the number of immigrants in Canada. The immigration levels plan for 2023-2025 sets an ambitious target of welcoming approximately 500,000 new permanent residents each year by 2025, with a target of 465,000 new immigrants for 2023.[4] As IRCC continues to add more resources, streamline processing, and expand its programs, immigration will remain a priority in achieving Canada’s economic goals.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in the Immigration Law Group.

This blog was co-authored by student-at-law, Abby Leung

[1] https://twitter.com/CitImmCanada/status/1610403133355659264

[2] https://www.canada.ca/en/immigration-refugees-citizenship/news/2022/12/canada-welcomes-historic-number-of-newcomers-in-2022.html

[3] https://www.canada.ca/en/immigration-refugees-citizenship/news/2022/12/canada-marks-record-breaking-year-for-processing-immigration-applications.html

[4] https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2023-2025.html

The Public Health Agency of Canada (the “Agency”) is a federal government agency with a mandate to prevent disease and respond to public health threats. The federal Quarantine Act (the “Act”) authorizes various activities to protect public health including measures that can be taken in respect of international travellers.[1] Under the authority of the Act, the Agency issues Orders in Council (“Orders”) to describe emergency protocols applicable during the coronavirus pandemic.[2]

The conditions of the pandemic are dynamic. For example, the emergence of the Omicron variant presented an additional challenge to the government to ensure that Orders reflect the circumstances of the day. Keeping Canadians, permanent residents and other travellers safe is an activity requiring continuous review. Throughout the pandemic, the Agency has been revising the OICs almost every month. Travellers are strongly advised to consult the latest Orders for the most up-to-date requirements and guidance.

New Orders In Force as of February 28, 2022

Two new orders came into force on February 28, 2022: 2022-0177 (Prohibition of Entry into Canada) and 2022-0178 (Quarantine, Isolation and Other Obligations). The highlights of which, with respect to testing, are as follows.

Background

Foreign nationals who are not fully vaccinated may not enter Canada. Foreign nationals who are symptomatic, or suspect or know that they have COVID-19 also may not enter Canada. There are certain exceptions for foreign nationals accompanied by family, seeking to be with family, for young adults seeking to attend a designated learning institution, or for adults who require support by reason of a mental or physical limitation. For details of the additional exceptions and provisions, review the text of the Orders. The focus of this article is on testing, as follows.

Testing

To enter Canada, all travellers (Canadians and foreign nationals)—with exceptions outlined below—must provide evidence of:

• a negative COVID-19 molecular test performed outside Canada on a specimen collected at most seventy-two (72) hours before the initial scheduled departure of an aircraft, or before the time entering Canada by land or by sea;
• a negative COVID-19 antigen test performed outside Canada on a specimen collected at most one (1) day before the initial scheduled departure of an aircraft, or before the time entering Canada by land or by sea;
• a positive COVID-19 molecular test performed on a specimen collected at least ten (10) days before the initial scheduled departure of an aircraft, or before the time entering Canada by land or by sea (no more than 180 days ago).

Travellers arriving in Canada who qualify as fully vaccinated will be randomly selected for arrival testing, however, they will not be required to quarantine while awaiting the result. For those travelling by air, the evidence must be provided to the aircraft operator. For those travelling by land or by sea, the evidence must be provided upon request of a screening or quarantine officer.

Unvaccinated travellers will also be required to test on arrival, on day eight (8), and will be required to quarantine for fourteen (14) days.

Taking a rapid antigen test at home is not sufficient to meet the pre-entry requirement—it must be authorized by the country in which it was purchased and must be administered by a laboratory, healthcare entity, or telehealth service.

Not all travellers must provide this COVID-19 testing evidence. Exceptions include a person who is less than five years of age, emergency service providers, certain public officials, Canadian Forces members, or a person who returns to Canada after suffering hardship in a foreign country. This is not an exhaustive list; see Schedule One of Order 2022-0178 for the complete list. Notably, an operator of a commercial motor vehicle for the transport of goods by land who is not fully vaccinated is not exempted.

Conclusion

The loosening of testing requirements for travellers reflects the declining number of COVID-19 cases in Canada. This trend is in part attributable to Canada’s high vaccination rate, and to the increased availability of rapid testing. The conditions of the pandemic are dynamic, and the official response evolves along in parallel. Travellers are strongly advised to consult the latest Orders for the most up-to-date requirements and guidance.

[1] SC 2005, c 20.

[2] Ibid, s 58.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”