In his 39 years of practicing immigration law, Warren Creates (a rare Law Society Certified Specialist) has never seen an environment so challenging for employers looking to hire workers from abroad.
Public support for immigration crumbled over the last three years as many Canadians struggled with unaffordable housing, inflation, and strained access to public services. In response, the government has significantly reduced immigration targets – although skilled economic immigrants remain a high priority.
“It’s definitely a more hostile environment” for immigration, says Creates, who heads the Immigration Law Group at the firm Perley-Robertson, Hill & McDougall LLP/s.r.l. in Ottawa.
That can be a big challenge for local employers looking to hire from abroad, but Creates says there are many tools local businesses can leverage to get the talent they need.
A significant immigration backlog
Another challenge is a significant backlog of millions of immigration applications. To process them efficiently, the initial screening uses advanced analytics software. While an immigration officer does the final review, Creates says refusal letters frequently offer inadequate reasons and boilerplate language.
These letters often lack a reasoned connection to the evidence, Creates and articling student Annina Trecroce argue in a recently co-authored paper. Their analysis chronicles a dramatic increase in the rate of work permit refusals.
“There are many good government officers, but with this process, the human is less and less of a feature,” argues Creates. “Some of these refusals are unreasonable and unsubstantiated, so they’re being overturned by the Federal Court.”
Navigating a complex web of immigration programs
Many of Creates’ clients are Ottawa businesses who employ qualified people in the U.K., U.S., Hong Kong, Japan, or elsewhere. He gets involved when the employer and employee develop a mutual interest in having the employee work in Canada.
However, Canada’s immigration system is a complex web of considerations, programs, regulations, and international agreements involving several layers of government. Without an experienced legal professional, employers and applicants are often overwhelmed.
“Nowadays, it’s much harder to navigate these various programs,” says Creates. “I hear every day from employers who are frustrated. When they’re recruiting someone who’s critical for the growth of their business, they’re willing to go through the process. But it takes patience, understanding, care and attention to detail – even courage.”
Tools local businesses can use to hire talent from abroad
Federal policy still offers many avenues for newcomers to legally enter Canada to work. The government still has “a toolbox with lots of tools in it, but you don’t use a pipe wrench on a Robertson screw,” says Creates.
These tools include:
- The C-10 Significant Benefit Work Permit, allowing foreign nationals to work in Canada without a lengthy Labour Market Impact Assessment (LMIA), as long as their employment offers substantial benefits to Canada. As example, Creates recently used this to help an American physicist and AI expert to obtain a three-year work permit within 48 hours.
- Foreign nationals may forgo an LMIA if similar employment opportunities exist for Canadians in that person’s country, thanks to Canada’s free trade agreements.
- The Global Talent Stream also fast-tracks approval of highly skilled foreign professionals in high-demand tech roles or specialties.
- The Intra-Company Transfer program expedites the transfer of key employees to a branch office, subsidiary, or affiliate in Canada.
“As lawyers, we know how to use these programs to our clients’ advantage while following the rules,” says Creates. “There’s little chance that employers or employees could understand all of them.”
What to do if an application is refused
Creates says that, in many cases, an application refusal may have a good chance of being overturned in Federal Court. That’s because refusals often fail to satisfy key legal tests. Unfortunately, going to court can mean added expense and delays.
To avoid that, Creates crafts each application with exacting care. His goal is to demonstrate that his client’s case fits the criteria of a specific program.
“I want my client’s matter to jump off the page so that of all the cases reviewed by any officer, ours quickly gets the positive attention it deserves,” he says. “For every case, we’re fighting for justice and what’s good for the person, for their family, for their employer, and for the country.”
