Law Times

Page 12 March 9, 2015 • Law Times www.lawtimesnews.com New express-entry program slow to take off BY MICHAEL McKIERNAN For Law Times mall draws and high levels of uncertainty have left some immigration lawyers skepti- cal about the early days of the express-entry era. After three draws from the pool of interested candidates, the federal gov- ernment has invited just 2,400 people to apply for permanent residence since the Jan. 1 launch of the new immigra- tion system for managing applications to the Canadian experience class, the federal skilled-trades program, and the federal skilled-worker program. The few who have received invitations to apply all scored more than 800 points on the program's ranking scale, which has a maximum level of 1,200. However, the system reserves scores above 600 points only for those with a positive labour market impact assessment or a pro- vincial nomination. Some provinces, including Ontario, haven't yet started nominating candidates through express entry, meaning all of the successful candidates in those provinces hold a positive labour market impact assessment. "A sixth of the way through the year, that is a very small total if they're hoping to get to 185,000 permanent resi- dents in the process this year," says Evan Green, a partner at Toronto immigration boutique Green and Spiegel LLP. "They're going to have to start digging deeper at some point, but nobody knows how far the points will come down or when they are going to do it. There is so much uncertainty." Henry Chang, a member of the immigration law group at Blaney McMurtry LLP, says the changes have made it difficult to give clients a clear idea of when they can expect a final answer on their case. Although the new program promises six-month processing times, that only applies to candidates invited to apply. The government removes from the pool any candidates not selected within one year of making their expression of interest. They are, however, eligible to reapply. "You can never tell when or if they will be chosen. It could happen in a month, a year or maybe never," says Chang. "That's going to be discouraging to someone who has an alternative option, maybe in Australia or the U.S., where they can get more certainty." Chang says it's possible the govern- ment is keeping the initial draws low in order to maintain the six-month pro- cessing promise while at the same time dealing with the pre-existing backlog. "We're trying to be patient and hopeful that once the numbers are in- creased, we'll get some people with less than 600 points," he says. Remi Lariviere, a spokesman with Citizenship and Immigration Canada, refused to speak about the size and points level of future draws but said the department was "pleased with the results and interest shown to date." "The express entry system ensures that only the can- didates who are most likely to succeed — and not simply the first to submit their application — are able to apply to immigrate to Canada," he added. "Most applicants who are invited to apply will see their electronic permanent resident applications processed with- in six months or less. This reduction in wait times will make it possible for Canada to keep pace with peer countries, at- tract the best skilled immigrants, and get them working and contributing to the Canadian economy faster." Betsy Kane, an executive member of the Canadian Bar Association's national immigration law section, says she's not surprised to see the government moving slowly at first considering the scale of the changes to the system. "It's a completely different way of doing business, so I think it is going to take everyone a long time to get used to," she says. "I think they will be tweaking the system and making adjustments. It looks like they are just getting their feet wet, which I think is understandable." The requirement for a positive labour market impact assessment for early selection has upset some lawyers since obtaining one can be an onerous task for many employers. They must show they've advertised the posi- tion nationally and publicly through various media and have evidence of efforts to recruit Canadians or perma- nent residents for the post, including the reasons why those responding were unsuitable for the job. "It's a very difficult undertaking," says Kane, who practises with Capelle Kane Immigration Lawyers PC. That difficulty is even greater when the candidate is already working in Canada on a work permit exempt from a labour market impact assessment. Requiring one in those cases is inappropriate, says Kane. "Many employers cannot genuinely say they cannot find someone in Canada, but it may be that they prefer this candidate over any other and they don't want to start again from scratch with someone else," she says. Green represents a number of applicants under the Ca- nadian experience class without labour market impact as- sessments who rushed to get their applications in ahead of Jan. 1 when the program switched to express entry. How- ever, they later learned the Canadian experience class had hit its cap in October 2014, meaning they'd have to resub- mit their applications under the new program. "A year ago, I could do an assessment and give them a determination as to whether or not they qualified," says Green. "Now you just don't know." He says international students will suffer most under the new system since they'll have the greatest difficulty obtaining labour market impact assessments. "How are you going to prove after one year of work experience that you qualify ahead of all other Canadians applying for the job?" asks Green. "The government has sold this program to the business community as you get to choose the immigrants, but that's not really true. First, you have to prove there is no Cana- dian available before you select your immigrant. . . . From an employer's perspective, it creates great uncertainty as to whether you're going to be able to keep someone or not." LT FOCUS RE-ELECT CHRISTOPHER BREDT BENCHER ( TORONTO ) Chris led climbs of Mt. Kilimanjaro in 2006, 2010 and 2014 that raised over $2 million for CODE's (Canadian Organization for Development through Education) children's literacy programs in Tanzania. 416.367.6165 • cbredt@blg.com • BredtForBencher.com A Track Record of Reform Chris is a hard working and thoughtful Bencher. He has been a strong advocate for greater transparency and accountability in the governance of the Law Society and a consistent voice for reform. Carol Hartman | Bencher, Sudbury I am proud once again to support Chris Bredt for Bencher. Chris brings the experience and judgment needed to navigate today's uncertainties, but also the vision to see the opportunities that lie ahead. He has demonstrated dedicated leadership, and a commitment to reform in areas of access to justice and good governance, among many others. Lorne Sossin | Dean, Osgoode Hall Law School Chris represents one of the best and brightest of the current benchers. He has enthusiastically taken on some of the most challenging and important tasks at the Law Society. I wholeheartedly support his re-election as a Bencher. Mark Sandler | Bencher, Toronto Untitled-6 1 2015-03-02 11:02 AM S It's possible the government is keeping the initial draws low in order to maintain its six-month processing promise, says Henry Chang.

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