EXPRESS ENTRY- CEC APPLICATIONS AND EMPLOYMENT LETTERS

A recent decision of the Federal Court may be of interest to those who may be able to apply for Canadian immigration under the current Express Entry regime, in the Canadian Experience Class, or need letters to support their work experience. 

For an officer to assess whether one is eligible to apply for permanent residence as a member of the CEC Class, the officer must evaluate whether the applicant meets the criteria of subsection 87.1(2) of the Immigration Regulations.  One of the requirements is that you must have – at least one year of full-time experience in one of the appropriate NOC (National Occupational Classification) code within Skill Type O (Managerial Jobs), or Level A (Professional jobs), or Level B (Technical jobs and skilled trades jobs)  of the NOC.  Most applicants submit employment letters or letters of reference to prove they have performed the duties described in the NOC.  Similar examination has to be conducted in the Federal Skilled Worker and the Federal Skilled Trade class. We often see that the reviewing officers may find the content of these letters do not satisfy them, that the applicant has the requisite employment experience and they refuse the application. Why does this happen?

It happens because in some cases, the employment letters have simply copied verbatim what is described in the NOC for their occupation onto their employment letters, and in other cases, the employment letters do not describe the duties sufficiently in detail to show the applicants meet the description in the NOC.

Keep in mind, to qualify, applicants must meet all the duties described in the lead statement of the NOC, including all the essential duties and most of the main duties listed. If the applicants are unable to show that their experience meets the description in the NOC, they run the risk of their application being refused.

The Federal Court in a recent decision where our firm represented the applicant, discusses how officers must assess the applicant’s claim that he belongs to the NOC:

 [14] In Qin v. Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 30, Justice Gleason set out the process by which an officer must assess an applicant’s claim to belong to a NOC:

In evaluating whether or not an applicant’s experience falls within a permissible NOC Code, an officer is required to understand the nature of the work performed and the degree of complexity of the tasks undertaken, to determine whether or not they fall within the duties listed in the relevant NOC Code descriptors.  The requisite analysis necessitates much more than a rote comparison of the duties listed in the NOC Code with those described in a letter of reference or job description. Rather, what is required is a qualitative assessment of the nature of the work done and comparison of it with the NOC Code descriptor… Thus, it is beyond debate that the officer must undertake a substantive analysis of the work actually done by an applicant.

(Emphasis added)

[15] In other words, an officer must look to the substance of the work done and avoid a superficial analysis of the language used in the job description.  In this case, however, the Officer, in stating that there was “no mention in the letter that you are assigning and reviewing the work of clerks under your charge, as outlined in the lead statement” (AR at 8), ignores the substance of the letter in favour of the specific words used.  As the Applicant correctly notes, being “in charge of” something and “supervising” it are equivalent; this is particularly so when one considers the other duties outlined in the letter of reference, such as “training reservation operators and agents”.

[16] Requiring the Applicant and/or East Link to have said more amounts to a requirement to repeat the language of the NOC’s lead statement verbatim.  Justice Russell, faced with a similar dispute in Song, had the following to say:

[29] It is clear  that the duties listed in the employer’s letter do not use the same words that appear in NOC 0621. But this will inevitably be the case because applications have been refused when an employer simply reiterates the wording of a NOC.  So employers are obliged to describe in their own words exactly what applicants do.  This requires officers to examine applications carefully and not to reject them because the same words are not used.

 Chen v. MCI, 2016 FC 611, Diner, J.

This guidance from the Federal Court is certainly instructive as it helps inform potential applicants what they must provide to meet their burden of proving they have the requisite experience to qualify under the CEC class.

Misrepresentation Leading to 5 Year Ban

MINOR OVERSIGHTS CAN LEAD TO FINDINGS OF MISREPRESENTATION WHICH CAN LEAD TO A FIVE (5) YEAR BAN

Immigration authorities has become increasingly aggressive, to the point that they try to make a minor oversight, a reason to find applicants inadmissible for 5 years.  Our office is seeing this happen more often to persons seeking entry into Canada.  

The scenario which commonly leads to this finding, occurs when these applicants have previously applied to go to a Western Country (usually the United States) for a temporary purpose (visit, study, work), but their application was rejected.  Sometime later they apply for a visa to Canada.   However, the officer advises that not only is he looking to reject their visa application, but he also states that he has found the applicants to have engaged in misrepresentation in their application for Temporary Resident Visa and believes that they may be inadmissible to come to Canada. 

The letter further explains that the misrepresentation finding renders the applicants inadmissible for a period of five (5) years. Meaning these applicants are banned for 5 years from entering Canada.

In many cases, this is the result of a simple oversight or misunderstanding.  In most cases, for example, for a visitor application, Form IMM 5257, has a question in the Background:

Section, 2(b) – Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country.

Many clients misread this question.  Let’s be clear, if you have a previous refusal to the U.S., Australia, U.K. or “any other country,” you must answer YES.  Not doing so, or checking the wrong box, can lead to a finding of misrepresentation and a ban of 5 years.

The law is set out in subsection 40 (1) (a) of the Immigration and Refugee Protection Act, which reads;

Misrepresentation

       40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

       Application

(2) The following provisions govern subsection (1):

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;

So what can you do if you have received such a ban?  Obviously, it is better that you seek legal help when you receive a letter from the visa post asking you to explain why you have not disclosed the previous refusal to prevent the officer finding you inadmissible, especially if you mistakenly checked off the wrong box.  But what if it’s too late and a finding of inadmissibility is already made, and the ban is imposed on you.  You have the right to seek a judicial review of the officer’s finding in Federal Court.