This article was authored by Betsy Kane, partner with Capelle Kane Immigration Lawyers in Ottawa, and edited by Ravi Jain, founder of Jain Immigration Law in Toronto.
Disclaimer: The views expressed in this article are not representative of nor necessarily held by all members of CILA.
On June12, 2017, Canada introduced a “Global Skills Strategy” to help employers attract highly skilled top talent by providing what the government touted as a “fast and predictable process to do this.” The strategy was supposed to feature faster application processing times (2 weeks), work permit exemptions and enhanced customer service.
One key pillar of the Global Skills Strategy was with the introduction of the Global Talent Stream which features Categories A and B. Category A requires a referral from one of the Stream’s designated partners and it requires the employer to be hiring an individual with unique and specialized talent. Category B does not require a referral but the foreign national’s job must be on a Global Talent Occupations List.
Towards then of 2022, practitioners and the designated referral partners they work with have experienced far more difficulty in getting employers and positions referred into Category A. This has created confusion and the need for employers to pivot their immigration strategy quickly, given what appears to be an overall reluctance by ESDC to continue to refer employers who meet the objective criteria for referral into this expedited LMIA approval process. The more stringent parameters to gain access to this stream is especially perplexing for employers who have been previously recognized as innovative and possessing a willingness and capacity to grow. Employers who had been successfully referred into the category A stream are suddenly being advised that they no longer meet the criteria for referral.
Heightened and more stringent screening criteria have left many employers with significant commitments to the Government of Canada as part of ongoing Labour Market Benefit Plans (LMBPs) that were negotiated in good faith on the assumptions of their ongoing access to the stream. Moreover, employers who negotiated forecasted LMBPs, where more than 1-2 unique and skilled positions needed to be hired, are being shut out of the stream on the basis that they no longer meet the stream criteria.
While previously the local partners would vet and then make referrals to the federal government department of ESDC, Program officers are now actively involved with the designated partners and are essentially performing the role of the referral partner in screening. This effectively means that the role of the designated entities is being frustrated and neutered.
Yet, in the government’s own published criteria cited in Memorandums of Understanding (MOU’s) with partners about the referral process, there is acknowledgement that guidance factors established by ESDC are not exhaustive, as Designated Referral Partners may exercise judgement when assessing an employer’s eligibility for this category of the GT Stream.
Presumably the reason for having a list of pan Canadian partners in each region is to ensure a pipeline of reliable information on innovation and growth in local economies. If ESDC will routinely revisit the judgement and rationale of those partners that choose to support companies, then why bother having these local partners as intermediaries as part of process? Designated partners themselves are devoting human and financial resources to helping employers access both the Global Talent Stream Category A and the Designated Service Channel.
ESDC officers have begun to require more evidence and justifications and this change occurred without prior notice. While in the past the referral process was relatively quick, taking no more than a week for ESDC to render a decision, the referral process can now take well over a month if not longer, thereby extinguishing speedy processing which was supposed to be a major feature of the Global Talent Stream. With protracted back and forth between ESDC and the referral partners on whether an employer is or remains innovative or growing enough to merit a referral, using the Category A stream is becoming more of a gamble for employers.
ESDC is simply taking too long and putting up artificial and opaque barriers for employers. This new and more stringent vetting process is being experienced by employers across Canada with many of the referral partners that work with our members. Given that this significant change in ESDC’s approach has seemingly occurred without any notice to the referral partner network, it is unlikely that even the government’s own agencies – Destination Canada, Global Affairs Canada and Canada’s Trade Commissioners – are aware of the new and more robust requirements to gain access to the Category A stream. These arms of the Canadian government directly appeal to companies and potential immigrants and sell the advantages of the Global Talent Stream abroad.
We can assume the success of the category A stream and an increasing number of employers seeking to use it is the reason for limiting who can now gain access to the category A. Nevertheless, usurping the role of the designated partners, refusing referrals and introducing more stringent criteria has been completely unfair. What is worse is that this has been done without notice and employers and referral partners who are utterly uncertain as to the test now required to be met.
ESDC should return to the practice of allowing designated partners to perform their role and to provide detailed and transparent processing criteria. This will allow counsel to help vet cases and will save frustration for all parties. ESDC could also revisit the number of Designated Referral Partners it recognizes. It might be best to work with those partners that have in-house expertise and demonstrated experience working with qualified employers whose judgement ESDC has more confidence in.
To ease the pressures on the category A stream, ESDC need to revamp the regular streams of the Temporary Foreign Worker Program (TFWP) and the Labour Market Impact Assessment (LMIA) application process. The whole point of the Global Talent Stream is to be a great tool for practitioners and employers who need to circumvent the red tape required to secure an LMIA -the default program administered directly by ESDC which requires that employers advertise for a month and prove that Canadians and Permanent Residents are not available. Where employers cannot get the referral within a week, they are best advised to commence the mandatory advertising requirements for the regular high wage or permanent LMIA streams. However, with employers fiercely competing for international talent and labour shortages affecting almost every sector, it is time for streamlined access to LMIA processing. ESDC needs to urgently undertake and implement current labour market research and policy reforms to allow companies that are growing to continue to access talent rapidly. This requires a wholesale and holistic review of the Temporary Foreign Worker Program (TFWP) where domestic recruitment requirements are waived for occupations in sectors experiencing acute labour shortages. It is well overdue for the government of Canada to eliminate the expensive advertising campaigns employers must complete before being able to access the TFWP. This process only serves to delay the recruitment and hamper the competitiveness of Canadian businesses that need to rapidly access key talent.
A final recommendation is that the government actually implement the promised trusted employer program that has been on the government’s agenda for years and forms part of the IRCC Minister’s mandate letter. Why this feature has yet to be implemented is unclear. The need to regularly explain to well-established employers that government policies and programs are years behind in terms of responding to labour market data is part of most intake discussions with clients seeking to access the foreign worker program. It is equally perplexing to understand why the Province of Quebec offers simplified processing for LMIAs for many occupations, whereas those same occupations throughout the rest of Canada, impacted by nationwide labour shortages, continue to be subject to mandatory advertising requirements.
While the policy and operations divisions of ESDC continue to assess the need for changes to the TFWP, the general theme that emerges is that Canadian employers are losing qualified candidates. Employers are not prepared to engage in a process that is neither transparent nor reliable, especially as IRCC backlogs continue to impede reliable service delivery and the two-week Global Skills Strategy processing standard has been effectively abandoned. As the economy flourishes and companies embark on developing new technologies, advances in science, creating demand for new products and services, many more employers can show that they are both innovative and capable of growth. The fact that Canada is generating so many qualified employers who have identified unique and specialized talent is something ESDC should be championing, not stifling by imposing barriers to gaining access to Category A of the Global Talent Stream.
As mentioned earlier, even though Trade Commissioners, the Provinces/Territories and economic development agencies are combing the globe to attract talent and investment to Canada, support for the talent these businesses can bring to Canada is being deliberately restricted. This shift is being felt across the country and is concerning to both practitioners and referral partners alike. Moreover, it is working against Canada’s efforts to attract investment, superior talent and job creation.
Designated Referral Partners themselves are concerned about the lack of communication being offered by ESDC about the new enhanced threshold criteria to gain access to category A. The backlogs at IRCC remain and are moving well into year four. Meanwhile, scientific and technological advancement, manufacturing capacity, distribution, sales, and penetration of international markets are being hampered because of pushback and delay on referring employers into category A stream. The economic drivers of our economy should not be held back from operating to capacity due the Government’s inability to effectively meet the demand and deliver existing programs.
As an aside, we would also note that access to the Designated Service Channel (which allows innovative and growing companies to have access to an IRCC account manager, i.e. private IRCC contact person) is also being guarded and being cautiously offered. Here the issue is not being able to access an IRCC service, to help employers once applications are in process with IRCC. Employers and their foreign workers routinely encounter processing snags, experience technical glitches and need advice to decipher issues and policies given the lack of access to any meaningful client service support. Given ESDC and IRCC are partners in the Global Skills Strategy, this too needs to be addressed.
The Global Talent Stream has been one of the most responsive and successful programs for employers in decades. It seems that perhaps due to demand, the government is inadvertently shutting down or shutting out genuine high growth Canadian companies and specialized talent from accessing the program. To prevent Category A from being a casualty of its own success, perhaps a reduced number of designated partners with the required expertise should be allowed to perform their role with more transparent criteria. Also, ESDC must improve access to other streams within the TFWP and the government should finally implement a trusted employer program, as indicated in the Minister’s Mandate Letter This will allow employers that are investing in skills, training and development and hiring as fast as they can find qualified candidates, to receive the supports needed, rather than roadblocks to doing business in Canada and globally.