June 7, 2021
The Canadian Experience Class (CEC) Express Entry category has been the talk of the town in the world of immigration since the start of 2021. In a historic and game-changing move, Immigration, Refugees and Citizenship Canada (IRCC) invited 27,332 candidates — i.e., every single person who was in the Express Entry pool under the CEC category — to apply for permanent residence, with a record-smashing minimum Comprehensive Ranking System (CRS) cutoff score of 75 in a single draw in February.
While this proved to be great for those with at least one year qualifying Canadian work experience, the CEC permanent residency program appears to discriminate against those who are designated as NOC 00, due to the candidates’ work experience possibly being considered as self-employment.
According to the latest National Occupations Classification, an NOC 00 “comprises of senior management occupations. It includes legislators and senior managers in the public and private sectors.”
Regardless of the Owner-Operators or Intra-Company Transferee (ICT) programs, even though NOC 00 workers are eligible to obtain 200 additional CRS points for their arranged Canadian employment, they seem not to be eligible for the CEC, based on the [R87.1(3)(b)] rule of, “any period of self-employment shall not be included in calculating the period of qualifying work experience under the CEC.”
This, therefore, begs the question as to the rationale behind an Owner-Operator or ICT worker needing at least one year of continuous Canadian work experience for the 200 additional CRS points. As an experienced immigration lawyer, I believe it defeats the purpose of the additional points if the candidate cannot meet the eligibility requirements for Express Entry under CEC and can only qualify as a Federal Skilled Worker (FSW). The policy appears to be restraining candidates from applying for permanent residency by delaying their eligibility by a year.
To further understand the reason for such discrepancy, we have to first take a closer look and analyze the following:
a) what constitutes as a valid job offer;
b) Express Entry for self-employed candidates via Owner-Operator and ICT programs and;
c) the requirements for 12 months of work experience in Canada.
Arranged employment or valid job offer
According to the IRCC, the offer of employment for foreign workers under the International Mobility Program (IMP), who are already in Canada under the Labour Market Impact Assessment (LMIA) Exempted Work Permit such as C11 or C12 or N24, can be rewarded 200 points if the candidate meets the following requirements:
a) have a valid work permit for a NOC 0, A or B job;
b) are currently working for an employer specified on the work permit;
c) have one year of full-time work experience (or an equal amount of part-time work) for that employer;
d) have a valid job offer from that employer for at least one year after the IRCC issues the permanent residency. (See government of Canada, “Offer of employment – Skilled immigrants (Express Entry)” ).
Furthermore, a job offer must also meet certain criteria to be valid under the Express Entry program. These include:
a) a written offer from a Canadian employer.
b) The job must be continuous (not seasonal), paid, full time and have a start date.
c) The offer must include the employer’s name and address, and the NOC code related to the job.
d) It must be dated less than a year, therefore an applicant cannot use the same job offer letter that they used to get their work permit.
e) It is also important that the offer set out details of the job such as pay and deductions, job duties and conditions of employment like hours of work, etc.
Owner-Operators pathway to permanent residency via Express Entry
In 2018, the IRCC confirmed that an Express Entry candidate will be eligible to receive 200 additional CRS points for those who hold a work permit for NOC 00 under the Owner-Operator programs and has managed a business in Canada for a year.
However, even though they may have the required CRS points, the candidate will be ineligible to apply under CEC because he/she managed their own business which constitutes as self-employment according to paragraph 15(7)(b) of the Express Entry Ministerial Instructions (MIS) and paragraphs 87.1(3)(b) of the Regulations. These paragraphs set out that self-employment does not count towards the minimum requirements for the eligibility for permanent residence via CEC.
Only an FSW who has fulfilled at least one year of international continuous work experience would be granted the 200 additional CRS points as per paragraph 29 (2) (a) of the MIS.
There is no clear definition for self-employment for Express Entry. The definition of a self-employed person does not apply to Owner-Operators or ICTs because they are not candidates for the self-employed programs.
Furthermore, the definition from the Canada Revenue Agency (CRA) does not help because, according to the CRA, Owner-Operators or ICT workers constitute as employees of their businesses. The main factor to be considered as a self-employed individual is the degree of control or independence, where an individual must work independently, with no supervision (see government of Canada, “Employee or Self-employed?”).
Intra-Company Transferees (ICT) pathway to permanent residency via Express Entry
Qualified intra-company transferees are classified under two LMIA exemption codes: C11 and T24 pursuant to paragraph R205(a) and R204(a). The difference between 00 workers and ICT workers is that workers under the ICT, unlike 00 workers, are not necessarily owners of a Canadian business and are employees, therefore they should be eligible for the CEC after one year of Canadian work experience.
Therefore, a foreign worker in Canada under LMIA exemption codes C12 or N24 work permit who is working in a NOC 00 position for at least one year and have a valid job offer from that employer for at least one year after the IRCC issues the permanent resident visa should be eligible to obtain 200 additional points under FSW and CEC.
Requirement of 12 months of work experience in Canada for validity of job offers
After analyzing the above, I revert to my original question. What is the rationale behind the requirement of having at least one year of continuous Canadian work experience for an Owner-Operator to be able to claim 200 additional CRS points if the candidate cannot meet the eligibility of the CEC, and is still entering the Express Entry pool as an FSW?
The requirements for one year of Canadian work experience emanates from the CEC category but it is an unjustified rule for 00 and ICT workers (who own a business), by holding back these candidates from applying for permanent residency through the Express Entry program.
The proper approach should be that neither make NOC 00 or ICT workers eligible under the CEC, or do not require them to work in Canada for one year to claim for their arranged employment additional CRS points.
Written By: Afshin Yazdani (LL.B, LL.M, OBA) – Barrister, Solicitor and Founder of YLG – Yazdani Law Group