Immigrating to Canada? When Not to Apply under the Skilled Worker Program.
July 4, 2012
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Requirements for a Successful Canadian Immigration Application

The key components of a successful application include several key ingredients:

1. a complete set of federal immigration forms, which require a full vetting of any admissibility issues;

2. an application that meets all of the BC PNP assessment criteria; and

3. an application that generally meets all of the Program’s guidelines outside of the substantive nomination criteria assessment specifically.

4.1. Federal Immigration Package
For a skilled worker application to be considered by the BC PNP, it must include completed copies of all the federal skilled worker forms and key supporting documents for the Program to review. The original priority to be given to BC PNP application was laid out in CIC Operations Memorandum OP 98-35, dated December 14th, 1998, and established that the BC PNP would not only be responsible for nomination, but also for assisting nominees with the completion of the federal immigration applications. CIC would then be obligated to process PNP applications as expeditiously as possible.

However, part of that commitment in the Memorandum was predicated on the PNP program assisting applicants to ensure that all application forms were completed correctly before being submitted to CIC.
BC PNP consultants are mandated, therefore, to review each application form for permanent residence, including the IMM0008 Generic, the Background/Declaration – IMM0008 Schedule 1, the Additional Family Information – IMM5406 and the very short Economic Class/Provincial Nominee IMM0008 Schedule 4. All deficiencies on the forms have to be reported to the nominee, for the express purpose of ensuring that they can be corrected before submitting to CIC. This is done to minimize CIC processing times after submissions, which makes sense if the forms already conform to CIC standards.

I personally found that the program consultants are a bit on the nitpicky side with their recommendations, especially with experienced counsel. That being said, their comments and review often catch the occasional error that even experienced counsel can make with forms that could very well cause delays in the processing of the application.
Priority processing, however, has its downside. It requires counsel to be ready right at the beginning with such things as police clearance certificate applications and also prepare clients for the fact that medical instructions could be issued to the much earlier in the process than other kinds of applications. That is why it is important to deal with any health concerns or criminal matters before you enter into the process, as you often do not have a lot of time to deal with these matters later.
For more details, see the BC PNP Policy Manual, Chapter 5-1 Reviewing CIC Forms (also attached as Appendix A).

4.2 Meeting Assessment Criteria

4.21 Provide Current Labour Market Information to Support the Nominee
It is important for Counsel to remember that the Program exists to support employers where there are critical skilled shortages. As a result, current labour market information must be obtained and considered as part of every BC PNP application. The regulatory labour market conditions should at least include wages, skill shortages and occupation outlooks.
Without proof of a critical skill shortage, recommendation for nomination often cannot be made. The fact the PNP policy provides that consultants shall research current labour market conditions on each application for nomination in order to investigate the labour market and to verify that any information provided is current and accurate, that means at least counsel should be consulting the same sources that the PNP consultants are encouraged to review, including:

a. government websites (including Service Canada and any BC government websites);
b. industry associations;
c. any particularly industry reports that are available;
d. non-government wage and salary websites including private sectors, recruiters, newspapers, etc.;
e. occupational profile resources;
f. job banks;
g. as well as speaking to industry representatives.

Often, this is not, strictly speaking, necessary, if your client already has a positive Labour Market Opinion. This is so because the PNP program has traditionally given considerable weight to HRSDC’s confirmations, for the simple reason that the process in assessing skill shortages is very similar.
The Program has an invariable standard of not approving any application in which the employee’s rate of remuneration is less than any industry standard. Accordingly, failure to offer an appropriate wage will result in a PNP application being declined. In fact, I often find it advisable to exceed industry standards by 5% or more, in my experience, to ensure success.

4.2.2 Proof of Significant Economic Benefit
When assessing a BC PNP application, program consultants are mandated to look at the economic benefits created for British Columbia by the hiring of the employee. I have always found a significant benefit to be a very odd term in that its meaning has certainly been very allusive in the context of the case law regarding entrepreneurs under the old Immigration Act. As various levels of tribunal as well as the courts have been very reluctant to define this phrase in anything resembling precise terms, so its allusive nature continues into the Policy Manual of the PNP.
The drafters of the policy, however, are aware of this, and note that significant benefit is “not easily defined”. That being said, they do include several indicators which counsel should be aware of when reviewing a potential candidacy with an employer. For example:

• Will jobs be created or maintained by the permanent employer of the nominee?
• To what degree the export markets for B.C. products and services will be expanded?
• Will any secondary benefits to other related industries be created as a result of the hiring of the nominee?
• Will there be any transfers of skills and knowledge to Canadians emerging technologies as a result of this hire?

Counsel should carefully review PNP Policy No. 3-5 (also attached) for examples of what would not be approved if there is no direct benefit to British Columbia. An example cited is where a company involved in a trading relationship has less than 10 full time employees and its trading items do not directly involve any British Columbian products.
In such a situation, the fact that the company is based in British Columbia would not qualify the nomination, as the benefits to British Columbia are deemed to be somewhat illusive.

4.2.3 Individual’s Work Experience
Also, it is part of the assessment standards that consultants are obligated to look at the employer and its record in B.C., current status of the industry as well as their previous record with the Program. Program consultants are also obligated under the program assessment criteria (fully described under Policy No. 3-2) at assessing an individual’s work experience and educational background to confirm suitability for the position offered, and to also get a general idea of an individual’s ability to settle in the province.
This is why it is important to have a copy of the applicant’s resume, as well as such supporting information as copies of university degrees, reference letters and other supporting material that would make it easy for a program consultant to confirm that your client can actually meet the job requirements. Usually, that is enough to show successful settlement, and as a result, I have never actually forwarded such things as bank statements or proof of the person has sufficient funds to settle as one would say a skilled worker application under the federal skilled worker program.

4.3 Meeting the Program’s Other Policy Criteria
Apart from the substantive criteria, the Program has a number of other formal requirements that neither relate to anything to the employer’s background or the employee’s skill set.
For example, there is a requirement for valid immigration status in Canada if the B.C. candidate is here. As a result, the immigration status of a person has to always be kept valid and should be reviewed with both employer and employee before an application is filed. In addition, if a company is small, the PNP has a policy regarding nominees and owners or shareholders of the company.
Since the Program’s mandate is focused on recruiting or retaining highly skilled individuals, such individuals must effectively be employees in a position that meet the program criteria. This is a situation that I faced recently where the founder of a retailer or a wholesaler in B.C. wanted to apply under the nominee program. Since mandate of the PNP Skilled Worker Category did not include owners of companies, nominating themselves as employees, the corporate structure of our client had to be very closely examined in order to meet the policy.
The PNP is not entirely inflexible on this point. It does note that in many industries it is common for key personnel to become shareholders in a company. As a result, the policy mandate set down in Policy No. 3-7 that a nominee be a shareholder in a company still be considered to be an employee by BC PNP provided the percentage of ownerships in the company represented by the shares is less than 50%. In the case of our client, the shares he held were 49.9%.

5. Successful Skilled Worker Applications – Liberally Interpreting Mandate
In our firm, we have enjoyed considerable success with skilled worker PNP applications in a number of different industries. The Program has always been fairly flexible in practice and the consultants have been willing to stretch the mandate of the program a bit where there are demonstrated economic benefits to British Columbia.
One such example is a case where a lodge that had 20 employees wanted to get their chief operating officer nominated. In that instance, because of this particular individual’s excellent record in hiring local first nations labour, the nomination was issued notwithstanding the fact that the industry was hospitality (a sector specifically discouraged by the Program) and in spite of the fact that some would say that managing a small lodge like that is ultimately a middle management job (also officially discouraged).

6. International Student Category
In 2002, the British Columbia Provincial Nominee Program launched a component for international students/graduates who were studying in British Columbia. This category was designed to assist employers in recruiting academic strong candidates who were expected to meet the future skill needs of their organizations.
In 2004, the International Student Category was expanded to include a broader range of fields of study, including:

• Pure and applied science programs at the masters or doctorate levels. Students at this level will be expected to have completed at least one year of study in British Columbia.
• Computer Sciences including software engineering at the undergraduate degree level or higher. Students/graduates will be expected to have completed two years of study in British Columbia.
• Computer, electronic, electrical, and mechanical engineering at the undergraduate degree level or higher. Students/graduates will be expected to have completed two years of study in British Columbia.
• Business or commerce graduates at the masters or doctorate levels. Students at this level will be expected to have completed at least one year of study in British Columbia.
• Business or commerce graduates at the undergraduate degree level or higher. Students/graduates will be expected to have completed two years of study in British Columbia and have had at least one of the following specialties:
• Information Systems Management;
• Tourism and Hospitality Management;
• International Trade;
• Finance and Accounting where it is intended that the applicant will progress to a professional designation in these fields.

The BC PNP will also consider applications from academically strong students in other
fields of study where it can be demonstrated that the student’s employment in BC will fill future skill needs.
In each case, full-time, permanent job offers to the students from BC employers that are related to their fields of study are required before approval by the PNP.