Proposed Regulations

As many may know, a first "tranche" of proposed regulations was published on December 15, 2001. This first set of Regulations sets out the details and procedures needed to administer the new Act. This pre-publication gives the opportunity to interested parties to review them and express their views before the regulations receive final approval and the legislation takes effect. It is expected that the second round of proposed regulations will be pre-published on February 9, 2002, providing an opportunity to comment until March 11, 2002.

A concern related to the proposed regulations are its retroactive implementation, the new skilled worker selection criteria (new grid) and the new pass mark of 80 out of 100 possible points.

In addition, following the pre-publication of the first set of the proposed regulations of the new Immigration and Refugee Protection Act (expected to be implemented June 28, 2002), December 17, 2001 has become a very important date to remember for Skilled Worker applicants. An important distinction will now be made between applications received before and after December 17, 2001.

Independent and Assisted Relative immigrants who are interviewed (or have had their interview waived) before implementation of the new Act will continue to be assessed against present regulations. Independent and Assisted Relative immigrants who apply on or after December 17, 2001 and who have not been interviewed (or have not had their interview waived) before implementation of the new Act will be assessed against the new Skilled Worker regulations and a pass mark of 80. However, Independent and Assisted Relative immigrants who applied before December 17, 2001 and who have not been interviewed (or have not had their interview waived) before implementation of the new Act will also be assessed against the new Skilled Worker regulations, but require a lower pass mark of 75.

The following is a partial summary of the Regulations which were published in Part I of the Canada Gazette on December 15 2001. This is not exhaustive, but will be updated on our web site.

Skilled Worker Class

Applicants under this class must have at least one year of work experience in the past 10 years in any skilled occupation. The new selection system presently requires a pass mark of 80.

Officers' Discretion

Given the high passing mark of 80 in the Skilled Worker Points Grid, some applicants will have to rely upon the positive discretion of the Visa Officer in order to succeed. Positive discretion may be used when the Visa Officer believes that the total points awarded do not properly reflect the applicant's ability to establish in Canada from an economic perspective. In such circumstances, the Visa Officer may approve an application that scores less than 80 points. Conversely, a Visa Officer has the discretion to refuse an applicant with more than 80 points.

Where to Submit Visa Applications

After June 28, 2002, an application for a Permanent Resident Visa or a Temporary Resident Visa must be made at the visa office outside Canada that serve the applicant's place of habitual residence.

Financial Establishment

Skilled Worker applicants must have sufficient funds to support themselves during their period of initial establishment. The applicant's funds will be assessed against the most current annual "Low Income Cut-Off" published by Statistics Canada, established for the size of the applicant's accompanying family. At present, a single applicant will need to demonstrate funds of $17,866 CAD and a family of 3 must show $27,805 CAD.

Residency Requirements

A permanent resident must comply with a residency obligation with respect to every five-year period. The permanent resident complies with the residency obligation provisions if, for at least 730 days (2 years) in that 5 year period the permanent resident is physically present in Canada or is:

• Outside Canada accompanying a Canadian citizen who is his or her spouse or common-law partner or a child accompanying a parent
• Outside Canada employed on a full-time basis by a Canadian business
• Is an accompanying spouse, common-law partner or child of a permanent resident who is outside Canada and is employed as a full-time basis by a Canadian business