Canadian Immigration Law Update with Lawyer Stanley Leo

Get the latest update on the competitive landscape for Canadian immigration, processing time, AI, work experience, & international students.

Goldbeck recently spoke with Immigration Lawyer Stanley Leo of Kairos Law Corporation. He was kind enough to give us updates and information about a number of topics related to immigration law.

Pressed for time? Skip ahead.

S1: Spotlight on Immigration and Competitive Landscape

S2: Processing Time, Artificial Intelligence, and the Potential for Prejudice

S3: Is it Legal to Ask for Canadian Work Experience?

S4: International Students and Employment Law

S1: Spotlight on Immigration and Competitive Landscape

GB: Are there any trends you’re observing with regards to immigration that you’d like to call our attention to?

SL: Canadians seem to be thinking about immigration on a day to day basis more so than they did in the past. There has been talk about Canada’s international study system, as well as the impact of permanent residents on housing. On the flip side, there is a recognition that immigration may be helping us avoid a deepening recession.

Immigration has always been a topic of discussion, but it would not often be tied to some of these larger issues of Canadian governance. That’s changed of late.

GB: Has achieving permanent residency become more difficult as a result of this scrutiny?

SL: The Canadian immigration system has always been very competitive, but has only become more so since the pandemic began. It currently runs on a category-based invitation system, with certain categories and occupations being prioritized. We have a points system that ranks people based on supposedly objective background factors, but the minimum scores needed for success have become increasingly high.

GB: What does this increased level of competition mean for employers?

SL: Employers are being asked to do more to support employees who wish to transition to permanent residence status. In the past, if you were in your mid-30s or younger and had a master’s degree and good English or French speaking skills, you may not have needed a job offer from a Canadian employer to become a permanent resident. This is still not explicitly required, but it does help to make an applicant more competitive.

Let’s say you’ve hired an international student on an open ended work permit and you like them and wish to offer them a job on a permanent basis. In the past, you may not have had to do anything but hire the person, which makes them more competitive. Now, you will often be asked by the candidate to help them apply through the temporary foreign worker program, which makes them a stronger candidate. They’ll need a piece of paper called a Labour Market Impact Assessment, and obtaining that is a fairly involved process that requires advertising the position for a minimum of four weeks to show that you can’t find any Canadian citizens or permanent residents for the job. This temporary foreign worker program wasn’t designed to simply facilitate making more people competitive, it was an alternative pathway but because of the nature of the competitive climate, people are seeking all kinds of ways to improve their scores.

GB: Can you provide another example of ways that candidates are attempting to get a leg up?

SL: The system is structured in a way that favors those who can speak both English and French, so people are seeking to give themselves an advantage by learning to speak French. I laugh at the incredulity of the situation because it’s not terribly realistic. The person has already struggled to learn English and done so admirably. Is it reasonable to assume that somebody who hasn’t spoken French at all in their life and is just now learning English will suddenly be fluent in French? I don’t know whether we’re going to end up catering to the percentage of the human population that are polyglots.

Fraud is a concern. There are bad actors who are willing to provide documentation regarding language. We’re also seeing that with the Labour Market Impact Assessments. I don’t know how robust our system is in catching that. There is a high demand on our bureaucracy to process applications and I don’t know how much screening is taking place, but it’s catastrophic for those who get caught. You’re really gambling with your future.

S2: Processing Time, Artificial Intelligence, and the Potential for Prejudice

GB: Backlogs have been a problem for the IRCC (Immigration, Refugees, and Citizenship Canada) in recent years. Is this still the case?

SL: I will give the department credit, they’ve improved their processing quite a bit and addressed many of the backlogs, but we’re still seeing longer processing times than we were before the pandemic. Take the Express Entry System, for example. Prior to the pandemic, applicants could reasonably expect their application to be processed in about six months. During the pandemic that increased to about two years. Now it’s often about one year. One of the things that has improved their capabilities is the use of artificial intelligence.

GB: What can you tell us about the way AI is being used by the IRCC?

SL: There have been reports by the government about what they’re doing, but they’re not particularly illuminating, which is understandable. For security reasons, they don’t want people to know exactly how the system works.

The system is often used to triage applicants. I’m personally not against using AI as an aid, given the sheer volume of applications they’re receiving.

GB: Does any aspect of using AI in this way give you pause?

SL: There are certainly concerns about fairness and equity. There seems to be a potential for prejudice to be built into the system, perhaps inadvertently.

Recently there was a federal court case where the definition of espionage was expanded. If you’re an international student applying to come to Canada and study in an area that could be considered sensitive and your background appeared to put you in a position where you could be forced to share sensitive information with your home country, this could be seen as grounds for a finding of inadmissibility to Canada. These candidates may be completely innocent and may not be threats for espionage, but due to the way they profile, they could be found to be inadmissible. It’s uncharted territory.

I think we’re entering a period where the open border mentality that we’ve been able to enjoy for 30 years or so seems to be shifting. We’re all wrestling with what that means.

S3: Is it Legal to Ask for Canadian Work Experience?

GB: Ontario is working on passing a law that will make it illegal to require applicants to have Canadian work experience. What impact will this have on employers and employees?

SL: If I’m not mistaken, BC is doing that as well. It’s something that has become more concerning because of identified shortages of labor in areas such as health care.

I think the greatest impact those laws will have, if they take effect, will be on regulated professions. It’s here that people who have expertise gained overseas are prevented from actually being able to contribute to Canadian society in the way that their skills are best suited. This is born out in the stories of doctors driving taxis.

Will this kind of law have a positive impact in this way? Perhaps, but there will be many more hoops to jump through. Licensing and regulation of these professions is understandable given their nature. The regulatory bodies will have to ensure that foreign experience is more accepted, without allowing anything that will be injurious to Canadians.

GB: Do you foresee these types of laws helping those without Canadian experience gain employment in other, less scrutinized occupations?

SL: The process of assessing an employee is quite open-ended. Employers may simply become less explicit about requiring Canadian experience.

S4: International Students and Employment Law

GB: We’ve heard more talk about international students in Canada. What situations will employers or lawmakers have to address?

SL: I think that employers are going to need to evaluate how willing they are to help international students pursue permanent residency, because merely graduating from a Canadian school has not proven to be any sort of guarantee. It’s often perceived that way, which, in part, explains the large numbers of international students coming to Canada.

A lot of employers rely on international students who work while studying. Recently there have been increases to the minimum financial requirements for students to get study permits. The former requirements were observed to be unrealistic by producing situations where students got to Canada and had to work to survive.

GB: In the past, we’ve discussed laws that prohibit international students from working off-campus for more than 20 hours per week. Are these rules still in place?

SL: That’s still the general rule, but there have been a couple of policies brought in that allow students to work more. The question now is whether the government is going to permanently and more widely expand the number of hours that students can work while studying full-time. There are concerns about that, because, at the end of the day, the students are here to better themselves through education. Students are often pressured by employers to breach these rules. If the rules changed, they’d no longer be in breach, but there would still be a stress upon them and their education.