Canada: Canada's Minister Of Immigration, Refugees And Citizenship Announces New Tech Talent Strategy During Collision 2023

On June 27, 2023, the Honourable Sean Fraser, Minister of Immigration, Refugees and Citizenship announced Canada's new Tech Talent Strategy, during Collision 2023. This Tech Talent Strategy will implement several new programs and improve existing programs in order to attract tech workers. These changes are summarized below:

• It will create a new work permit stream, which will allow H-1B specialty occupation visa holders in the U.S. to apply for an open work permit. It will also allow accompanying immediate family members to obtain open study permits or open work permits, as required. This new stream will be available as of July 16, 2023.
• It will develop an Innovation Stream under the International Mobility Program (IMP) designed to attract highly talented individuals, which may include the following:
• • Employer-specific work permits (valid for up to five years) for foreign nationals who will work for a company identified as contributing to Canada's industrial innovation goals; and
  • Open work permits (valid for up to five years) for highly skilled workers in select in-demand occupations.

• It will reinstate the 14-day service standard for work permit applications that qualify under the Global Skills Strategy.
• It will promote Canada as a destination for digital nomads.
• It will create a STEM-specific draw under Express Entry.
• It will make improvements to the Start-up Visa (SUV) Program:
• • SUV applicants will be able to apply for a work permit valid for up to three years, instead of the current one-year duration.
  • SUV applicants will be able to apply for an open work permit instead of one that is specific to their own start-up business.
  • The new three-year open work permit will be available to each member of the entrepreneurial team, rather than only to those who are essential and urgently needed in Canada.
  • Applications that are supported by venture capital, angel investor groups and business incubators that have committed capital to the start-up business, as well as applications that are supported by business incubators who are members of Canada's Tech Network, will be given priority processing.

The two new work permit categories that will be established under Canada's new Tech Talent Strategy are discussed in greater detail below.

New open work permit for H-1B specialty occupation visa holders

According to the Backgrounder on Canada's Tech Talent Strategy (the Backgrounder), a streamlined work permit category will be created for "H-1B specialty occupation visa holders" in the U.S.. As of July 16, 2023, H-1B specialty occupation visa holders in the U.S., and their accompanying immediate family members, will be eligible to apply to come to Canada.

Approved applicants under this new work permit category will receive an open work permit for up to three years in duration; they will also receive a Temporary Resident Visa (TRV) if required. During the validity period of their open work permit, approved applicants will be able to work for almost any employer anywhere in Canada. An approved applicant's accompanying immediate family members will also be eligible for an open work permit or study permit, as needed, as well as a TRV (if required).

This new work permit category will remain in effect for one year, or until Immigration, Refugees and Citizenship Canada (IRCC) receives 10,000 applications, whichever comes first. However, only principal applicants, and not their accompanying family members, will count toward this cap.

Although this new work permit category is a positive development, there are still several unanswered questions. For example:

• Is a valid H-1B visa required in order to qualify?
  • The available guidance repeatedly refers to H-1B specialty occupation "visa holders," which suggests that only foreign nationals who hold a valid H-1B visa will qualify under this category.
  • Of course, there are numerous situations where foreign national will be in lawful H-1B status but not hold a valid H-1B visa. For example, a foreign national may obtain H-1B status through a change of status or extend their H-1B status without holding a valid H-1B visa. A "visa" is simply an entry document, which is required when the foreign national wishes to enter/re-enter the United States.
  • The Backgrounder specifically states that thousands of workers in high-tech fields are "employed with companies that have large operations in both Canada and the U.S." So perhaps this new category was only intended to facilitate the ability of an H-1B nonimmigrant to temporarily work in the Canadian office of their U.S. employer. If this were the case, it might be reasonable to make this new work permit category available only to H-1B visa holders, since a visa would be required for the foreign national to return to the U.S. and resume his or her employment with their H-1B employer. However, the Government of Canada likely would not have offered open work permits to these foreign nationals.
  • It is more likely that the Backgrounder simply uses imprecise language and that all H-1B nonimmigrants, regardless of whether they currently hold a valid H-1B visa, will be eligible to seek these new work permits.
• Will all approved applicants receive a three-year work permit?
  • The Backgrounder states that approved applicants will receive an open work permit for up to three years in duration.This strongly suggests thatnot all applicants will receive three-year work permits.
  • As H-1B status is typically granted for three years at a time, it is quite possible that the Government of Canada intends to tie the validity period of the open work permit to the remaining duration of the approved applicant's current H-1B status.
• Who will be considered an accompanying immediate family member?
  • The Backgrounder initially refers to "accompanying immediate family members," which is not a defined term. Although there is a later reference to "spouses and dependents," this is not particularly helpful either. The reference to "spouse" refers to a legal marriage partner, which includes same-sex marriages but does not include common-law partnerships. The absence of any reference to common-law partners at least suggests that that would be excluded but this would be inconsistent with existing practice.
  • It is more likely that the term "accompanying immediate family members" is intended to include the approved applicant's spouse, common-law partner, or minor child (who is under 22 years of age and without a spouse or common-law partner).
• Will the minor child of an approved applicant be eligible to obtain an open work permit?
  • Although the Backgrounder suggests that minor children may be eligible to receive open work permits, this would be inconsistent with existing practice.
  • It is more likely that spouses will be eligible to receive open work permits and minor children will be eligible to receive open study permits, for the same duration as the principal applicant's work permit.
• How difficult will it be to obtain one of these work permits?
  • As only 10,000 open work permits will be available, it is reasonable to expect that there will be many more applicants than available work permits.
  • Given the fact that these open work permits will become available on a specific date (July 13, 2023), it is also reasonable to expect a high volume of applicants on that date. This could cause intake problems with so many applicants attempting to apply at the same time for a limited number of work permits.

New Innovation Stream work permit

According to the Backgrounder, a new Innovation Stream will be implemented by the end of 2023, which is intended to attract highly talented individuals working in the tech industry:

• During recent consultations with tech industry stakeholders, the Government of Canada concluded that labour shortages persistent in key tech occupations and that broadening Canada's talent base in the sector should continue to be a goal.
• The new Innovation Stream of the IMP will be launched by the end of 2023. Work permits that are considered exempt from the Labour Market Impact Assessment (LMIA) requirement fall under the IMP, while work permits that require an approved LMIA from Employment and Social Development Canada fall under the Temporary Foreign Worker Program. In other words, IRCC will create a new LMIA-exempt work permit category to help high-growth employers and talented workers in support of Canada's innovation priorities and high-tech industries.
• The feedback from tech industry stakeholders on the Innovation Stream proposal has led IRCC to consider two options:
  • Employer-specific work permits for up to five years, for workers destined to work for a company identified by the Government of Canada as contributing to its industrial innovation goals; and
  • Open work permits for up to five years for highly skilled workers in select in-demand occupations.

For more information, visit our Employment and Labour blog at www.employmentandlabour.com

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