Further to other recent issues of ImmPulse™, we wish to provide you with the latest implications of COVID-19 vis-à-vis Canadian immigration. We must continue to indicate that considerations remain ‘fluid’. Definitive guidance from Canadian authorities is not always available at this time. Further, individual officers (and even airline personnel in some cases) are making decisions which are inconsistent with each other, and with government pronouncements.
(A) Issues Canvassed by this Alert
In accordance with our mandate, and the interests of our readers, our focus in this alert continues to be on issues related to foreign workers seeking to work, or continue to work, in Canada. Information herein is in a similar format to our last issue of ImmPulse™, but the substance is updated.
(B) Current Immigration System Status
The overall Canadian immigration system remains open. There are, however, caveats. Important issues to consider are:
- Migration Offices (Canadian Embassies, High Commissions and Consulates that undertake immigration processing, as well as inland centres) continue to function, though again, at a slower pace, given staff reductions, etc. [Again, we are speaking of processing with regard to work related issues; other areas of processing may be halted or curtailed.]
- However, certain ancillary functions are impacted, which in turn could impact immigration processing. For instance, Visa Application Centres (VACs), which are non-governmental offices that assist Migration Offices in various processes, are generally closed. These offices would typically process biometric requirements needed for visa applications, so without that, any visa application would be on hold.
- The Canadian government recognizes the issue, and is extending deadlines for provision of biometrics, but non-the-less, applications will not finalize until the ancillary issues can move forward.
- Each case must be considered individually, but assuming that travel will at some point reopen, it would generally still be worthwhile to file or continue to process an application, rather than wait for travel to resume, only to be at the back of the queue.
- Ports of Entry remain open, but service hours at various land border crossings have been reduced. A list of ports and hours of operation, can be found at https://bit.ly/2K9UFDW.
(C) Ability to Work in Canada Generally
We would firstly note generally, that as per the Immigration, Refugees and Citizenship Canada (IRCC) pronouncements:
- “All temporary foreign workers are exempt from travel restrictions and can travel to Canada by air or land.”
This is a broad statement, but on its face, it appears that foreign workers can continue to enter Canada. However, there are certainly caveats.
- Though still open to interpretation by various officers, it would appear that as of this time, in a situation where there is a non-visa national seeking a work permit, an application would be made upon arrival. Note though that based on further pronouncements, and the de facto situation vis-à-vis entry from the United States vs. other countries, foreign nationals seeking to come to Canada from anywhere other than the U.S. will need a work permit or approval letter before seeking to travel. [Non-visa nationals other than Americans who happen to be in the U.S. could still seek a work permit at a port of entry.]
- As will be further discussed below, the ability to enter Canada at this time generally, is often dictated by whether the activity is ‘essential’. Though the above-noted IRCC pronouncement does not indicate any such restriction, it may seemingly still be important to show that a person’s presence in Canada is important, even if not in the sense of medical equipment or food chain supplies. It would seem worthwhile, in addition to any other application materials that may otherwise be advisable in a particular case, to have a letter/documentation showing why this person is ‘essential’ (important), at the very least to that business or that operation. For instance, a particular worker’s task as part of a crew may be essential to the operation of a manufacturing facility. An I.T. worker’s input may be crucial for the continued operation of a particular business.
- Assuming for now that non-visa foreign workers can still make application at a port of entry, it would also seem logical that this would include Business Visitors. Business Visitors are not non-workers. Rather, they are workers who simply do not need a work permit. However, given the common perception of Business Visitors as non-workers, this may be more difficult.
(D) Ability to Travel to Canada
Related, though in a sense separate from the right to seek a work permit, is the physical ability to travel to Canada. As such, in addition to the foregoing, there are considerations for travel, which in the end, may dictate the reality of getting to Canada at this time. There are breakdowns based on travel by air vs. travel by land.
(D)(1) Travel by Air
Within considerations of travel by air, are breakdowns of flying from the U.S., and flying from any other location. We will look at issues mutually impacting these issues, and thereafter, issues relating to the U.S. vs. other locations.
(D)(1)(i) Measures Impacting Foreign Workers from Either the United States or Other Countries
- Anyone exhibiting signs or symptoms of coughing, fever, or trouble breathing, will be barred from entry to Canada.
- ‘Discretionary’ entry – essentially tourism – is prohibited
- Other than certain ‘essential services’, travelers are required to self-isolate for 14 days upon entry.
- It may be worthwhile for applicants to produce some kind of documentation from their employer or otherwise confirming their need to be in Canada, and a self-isolation plan.
- Though there is no definitive definition of ‘essential’, certain pronouncements would indicate that the following are considered essential, and as such, exempt from the self-isolation requirements:
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- providers of emergency services (includes firefighters and medical service providers)
- persons permitted to work as a student in a health field including as a medical elective or clinical clerk at a medical teaching institution in Canada, for the primary purpose of acquiring training, if they have written approval from the body that regulates that field
- workers in the marine transportation sector who are essential for the movement of goods by vessel
- persons who seek to enter Canada for the purpose of delivering, maintaining, or repairing medically necessary equipment or devices
- persons who seek to enter Canada for the purpose of making medical deliveries of cells, blood and blood products, tissues, organs or other body parts that are required for patient care in Canada
- NOC 6331 – Butchers, meat cutters and fishmongers – retail and wholesale
- NOC 7511 – Transport truck drivers
- NOC 8252 – Agricultural service contractors, farm supervisors and specialized livestock workers
- NOC 8431 – General farm workers
- NOC 8432 – Nursery and greenhouse workers
- NOC 8611 – Harvesting labourers
- NOC 9463 – Fish and seafood plant workers
- NOC 9617 – Labourers in food, beverage and associated products processing
- NOC 9618 – Labourers in fish and seafood processing
- NOC 9462 – Industrial butchers and meat cutters, poultry preparers and related workers
(D)(1)(ii) Measures Impacting Foreign Workers from the United States (in addition to those in item (D)(1)(i))
- Note that this relates to persons in the United States – not necessarily U.S. citizens.
- Notwithstanding allowances for entry, no foreign national may enter Canada if they have been in a country other than the United States (or Canada) in the 14 days prior to seeking entry.
(D)(1)(iii) Measures Impacting Foreign Workers from Countries Other than the United States (in addition to those in item (D)(1)(i))
- Foreign Nationals already holding work permits (or approvals from visa posts) will be permitted to travel
- Note that an approved LMIA or IMWU opinion does not permit a foreign national to travel
- Certain other exemptions apply including:
- A licenced health care professional with proof of employment in Canada.
- Those providing an essential service (see above).
- Those delivering, maintaining, or repairing medically-necessary equipment or devices.
- Those who make medical deliveries of cells, blood, tissues, organs or other party parts required for patient care in Canada.
- A marine transaction worker essential for the movement of goods by vessel.
- Those deemed to be coming in the national interest (for which an authorization would need to be sought).
- The order is in effect until June 30, 2020 (unless extended)
(D)(2) Travel by Land
- Note that this relates to persons in the United States – not necessarily U.S. citizens.
- Anyone exhibiting signs or symptoms of coughing, fever, or trouble breathing, will be barred from entry to Canada.
- Notwithstanding allowances for entry, no foreign national may enter Canada if they have been in a country other than the United States (or Canada) in the 14 days prior to seeking entry.
- ‘Discretionary’ entry – essentially tourism – is prohibited
- Other than certain ‘essential services’ (see above, under Travel by Air) e.g. truck drivers bringing medical supplies), travelers are required to self-isolate for 14 days upon entry.
- It may be worthwhile for applicants to produce some kind of documentation from their employer or otherwise confirming their need to be in Canada, and a self-isolation plan.
(E) Workers Already in Canada
- Those in Canada will be permitted to extend their status.
- Ordinary rules apply for those seeking to extend
- before current work permit expiry (implied status), and
- within 90 days of work permit expiry (restoration).
- For those beyond 90 days of expiry, they may still be able to seek a Temporary Resident Permit, explaining the need to remain.
- Those in Canada whose purpose has concluded (e.g. no longer expecting to work), application can be made to change status (e.g. to visitor), again, with explanation.
- Ordinary rules apply for those seeking to extend
- Flagpoling (i.e. exiting Canada briefly for the purpose of making some form of immigration application upon re-entry) SHOULD NOT be attempted. Flagpoling is, in essence, an entry to Canada, and issues above re entry to Canada will be imposed, notwithstanding that the exit from Canada was momentary.
(F) Dependents of Foreign Workers
- Spouses with work permits and children with study permits should be allowed to accompany a foreign worker. Those on visitor records only will require a letter from a consular officer to allow for travel.
(G) General
We must again caution that this information is subject to interpretation, and that various variables in the system (in terms of pronouncements and those that implement them) may dictate implementation. Further still, the situation remains fluid and subject to change. We will seek to keep our readers updated, but have sought herein to provide our summary of issues that seem pertinent in the realm of corporate immigration.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.