ARCHIVED – Operational Bulletin 101 – February 27, 2009 (expired)

C-50 Frequently Asked Questions (FAQs) – Part 2

This Operational Bulletin has expired. Please refer to manual OP 6 – Federal Skilled Workers for current information.

Further to OB 093 (Ministerial Instructions – Frequently Asked Questions) sent to missions on December 24, 2008, RIM and OMC continued to receive questions regarding C-50 and specific processing situations. We discussed the questions with various branches at NHQ so that the answers are as comprehensive as possible.

In order to ensure all missions have the same guidance, RIM and OMC prepared this second list of FAQs to clarify the issues you may have.

Please keep on submitting your questions as we continue to refine the C-50 guidelines and instructions in the manual. Consultations with other branches at NHQ will carry on and subsequent message(s) responding to FAQs will follow in the coming weeks.

CAIPS Release 40.2 was implemented in all CAIPS missions from January 14 to 16, 2009.

The purpose of this release is to provide enhancements to the file transfer process for C-50 cases from the Case Processing Centre in Sydney, Nova Scotia, to other missions. Changes will be limited to Permanent Resident cases and will allow the missions receiving the file to modify the file number (B number) to a locally assigned one, if required.

Missions should be proceeding with processing C-50 cases.

FAQs from Missions

1) Are holders of International Youth Program work permits eligible for processing under the Ministerial Instructions?

For assessing eligibility under the Ministerial Instructions, please refer to the corrected section 8.3 of the OP 6 manual. The note in this section explains in greater detail the evidence that is required from Temporary Foreign Workers (TFWs) and International Students to establish eligibility for processing. To meet the requirements of the Instructions, TFWs and International Students must have resided legally in Canada for at least one year preceding the date of application and currently be residing in Canada.

Section 8.3 also indicates that a work or study permit may be evidence of eligibility, but that neither of these documents is a requirement. Work permit exempted students/workers (e.g. clergy) can also apply.

Applicants under the International Youth Program are eligible under the Instructions if they have been working in Canada for a year and are still residing in Canada. Once an application is placed into processing, it is processed according to the Immigration and Refugee Protection Regulations (IRPR), including subsections 75(2) and (3). Therefore, they would still require a combination of education, language and work experience (NOC level 0, A or B) that would allow them to meet the point requirement.

2) Ministerial Instructions versus Canadian Experience Class (CEC)

Some International Students and TFWs may also meet the requirements of the CEC. Applicants must indicate whether they are applying in the Federal Skilled Worker (FSW) Class or the CEC. The Ministerial Instructions do not apply to CEC applicants.

The following chart provides a comparison of the CEC and the “filter” effect of the Ministerial Instructions for TFW and International Student as FSW applicants.

Please consult the OP 25 manual for complete information about the CEC requirements.

3) What should we do when we have an application in which the NOC occupation of the principal applicant is not among the 38 NOC occupations, but the spouse has an occupation among the 38 designated occupations?

Nothing has changed as to how we proceed with applicants and spouses or partners. Either person in a marriage or common-law relationship may elect to be the principal applicant. R10(1)(e) requires that the principal applicant be indicated when an application is submitted for a permanent resident visa. The principal applicant cannot be changed once the processing of an application begins. If an applicant wishes to have their spouse or common-law partner considered as the principal applicant, the spouse or partner should submit a new application, including new processing fees.

The application specifies who the principal applicant is. The determination about eligibility for processing is made on the basis of the work experience of the principal applicant.

4) Can an applicant amend their NOC code? For example, the applicant made a mistake or the applicant forgot to include the correct code?

Applicants can amend their NOC codes as long as a decision regarding eligibility has not yet been made. If a new work history has been volunteered in response to the occupations list, it should be closely examined.

5) For occupations on the Ministerial Instructions NOC list, work experience is defined as one year of continuous full-time (or equivalent) paid work experience in the last 10 years. What is the definition of full time?

Full-time is meant to be the same definition as used under R80(7) for processing FSW applications. To meet instructions, there has to be one year of continuous full-time or equivalent part-time paid work experience in the last ten years in one of the 38 occupations. This experience does not have to be with the same employer but it must be continuous for one year. The intent is to get people with skills that are in demand. This experience could come from multiple employers.

6) Must TFWs or International Students have worked/studied in Canada continuously for one year or is it sufficient that they worked/studied for part of their stay in Canada?

The intent of the Ministerial Instructions is to process applications from persons in Canada who have been residing in the country legally for at least a year as a student or worker. Such persons will more easily integrate into the Canadian labour market.

When you determine if someone was a TFW or an International Student continuously for at least one year, you may find that there were short breaks in employment or studies, e.g. between jobs, courses or during breaks in the academic calendar. Such breaks do not make applicants ineligible to have their applications placed into processing.

7) Does residing legally in Canada entail holding a study or work permit? Is a temporary resident status after the expiry of a work or study permit sufficient? What happens if an applicant leaves Canada after the work or study permit expires and then re-enters Canada (i.e. as a visitor)?

The Ministerial Instructions do not mention work or study permits at all (consult section 8.3 of the OP 6 manual). Generally, applicants must meet the requirements of the Instructions on the application received date. Once an application is placed into processing, the eligibility requirements of the Ministerial Instructions no longer apply, unless an error comes to light. Whether an applicant whose application is placed into processing, is still residing legally in Canada as a TFW or student, at any point after processing begins is immaterial. Processing is only subject to the IRPR and not the Ministerial Instructions. If an applicant met the requirements of the Instructions on the application received date, then left Canada and re-entered with the status of a temporary resident only (not a TFW or international student), the application is still eligible for placement into processing at the visa office. If the applicant only applied after re-entering Canada and remained in the country as a temporary resident, the application is not eligible for placement into processing.

Exceptions to the above apply to applications received between February 27, 2008, and November 28, 2008. Someone who meets the requirements of the Ministerial Instructions today, but did not meet them on the application received date, should be assessed in relation to today’s date and not the application received date. For someone who met the requirements as of the application received date, but no longer meets them, the reference point should be the application received date. The rule of thumb is to apply the requirements in a manner that favors the client. Clients could not self screen before the Ministerial Instructions were made public.

It is also important to remember that the policy intent of this particular requirement was to process applications from persons working or studying in Canada. The qualifications, i.e. residing legally for at least one year, are intended to slightly raise the threshold that must be met for the application to be placed into processing. They are not intended to be interpreted so strictly that applications from persons working and studying legally in Canada, and who would likely satisfy the IRPR selection criteria, will not be placed into processing.

8) Can applicants have both a pre-C-50 FSW application and a C-50 application?

Yes, applicants may have multiple FSW applications. The applicant can choose to either maintain the first application and submit a new C-50 application with a new processing fee; or withdraw the first application and submit a C-50 application. If an applicant chooses to withdraw their pre-C-50 application before processing begins, they will receive a refund.

Missions should inform applicants that they cannot advise whether the original FSW application or the C-50 application will be a faster process. Missions should avoid recommending a particular course of action to applicants.

9) How should Humanitarian and Compassionate (H&C) cases be lodged and in what category may they be opened, since Skilled Worker (SW1) is now no longer an option?

Intent and general instructions

Bill C-50 amended section 25 of the Immigration and Refugee Protection Act (IRPA) to make the examination of H&C requests from foreign nationals outside of Canada discretionary. Bill C-50 also added subsection 87.3(4) of IRPA. This new subsection requires that “officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one.”

These amendments to the IRPA are reflected in the Ministerial Instructions issued November 28, 2008.

The Ministerial Instructions (canadagazette.gc.ca/partI/2008/20081129/html/
notice-e.html#d105) state:

• “The Instructions apply only to applications and requests made on or after February 27, 2008.
• “Requests made on the basis of Humanitarian and Compassionate grounds that accompany a Federal Skilled Worker application made overseas that is not identified for processing under Ministerial Instructions will not be processed.
• “All other Humanitarian and Compassionate requests are not affected by the above Instructions pertaining to Federal Skilled Workers.”

The Ministerial Instructions allow examination of H&C considerations within the FSW class only if a FSW class application is otherwise eligible for processing at a visa office.

The Instructions prevent the use of requests for H&C consideration to overcome the eligibility requirements for processing under the FSW class.

The provisions of the IRPR with respect to H&C have not changed. Section R66 of the IRPR requires that foreign nationals make their H&C requests in writing accompanied by an application for a permanent resident visa.

Visa officers may examine H&C requests from foreign nationals accompanying applications made pursuant to section R66 of the IRPR in all other classes. The onus is on foreign nationals to indicate in which class they are applying. The FSW Application Guide, IMM EG7000 (11-2008), will be amended to indicate that requests made on the basis of H&C grounds that accompany an FSW application that is not eligible for processing under Ministerial Instructions will not be processed.

Transitional instructions – FSW applications with H&C requests received at visa offices between February 27, 2008 , and November 28, 2008

Some applicants may have made requests for H&C consideration with FSW applications submitted between February 27, 2008, and November 28, 2008. These applicants did not know before November 28, 2008, that their applications could only be processed if they met the eligibility requirements of the Ministerial Instructions. For those applications that are not eligible for processing under the Instructions, the following transitional procedures apply:

If visa officers consider the case sufficiently compelling they can change the class from FSW and process under another class. The visa officer has the discretion to determine that the application is being made in another class, to inform the applicant and to process the application.

The discretionary nature of Section 25 of IRPA permits the Minister and delegates to examine H&C considerations on their own initiative. This includes instances of foreign nationals who have requested H&C consideration with an application for a permanent resident visa and paid the required processing fee ($550 Canadian). Visa officers may consider these applications in any class other than the FSW class, even if the foreign nationals initially indicated they were applying in the FSW class.

If there is insufficient evidence of a compelling H&C request, the visa officer should send a letter (see Appendix D of OP 6) to the applicant to inform them that they are not eligible under the Ministerial Instructions and initiate a fee refund.

Applications submitted between February 27 and November 28, 2008 with H&C requests that have already been transferred to the Centralized Intake Office (CIO) will be returned to visa offices for review. Any fee refunds for these cases should be processed by the mission.

Applications received after November 28, 2008

Applications submitted to the CIO after November 28, 2008 will continue to be assessed for processing eligibility against the Ministerial Instructions. Only eligible applications will be placed into processing. Ineligible applicants who also make H&C requests will continue to receive written notice to this effect and a fee refund.

Coding instructions

Code FSW applications eligible for processing as SW1 (immigrant category) and M01 (pilot indicator) at the paperscreening stage. If the application will be processed pursuant to section 25 of IRPA, change the immigrant category code to HC1 at the selection stage.

Code sponsored family class applications submitted with H&C requests as the appropriate family class category at the paperscreening stage. Change the category code to FCH at the selection stage.

For cases received at visa offices between February 27, 2008 and November 28, 2008, where the evidence of H&C considerations is sufficiently compelling to warrant processing, use the immigrant category code FCB at the paperscreening stage. The FCB code was chosen because it is an existing immigrant category code that is not in use. Change the category to HC1 at the selection stage.