Since the terrorists attacks of September 11, 2001, the PACE and CANPASS dedicated commuter lanes at the various British Columbia-Washington State border crossings have been closed indefinitely. Replacing the PACE and CANPASS programs will be the NEXUS program, which has been operated on a trial basis at the Port Huron, Michigan Blue Water Bridge border crossing since November 2000.

Very similar to the PACE and CANPASS programs, the NEXUS program will allow the participants to enjoy a simplified entry process into the United States and Canada. The NEXUS program will offer substantially greater border security because all participants are required to undergo a vigorous screening process in advance, and their backgrounds are carefully examined by both the U.S. and Canadian Immigration officials prior to being accepted into the program. In contrast to the PACE and CANPASS program, however, each person wishing to apply for the NEXUS program benefits will need to fill out an application, regardless of age. There will be no application process for families and each applicant will be processed and interviewed independently.

Initial plans are for Canadian agencies to process the NEXUS applications first and handle the distribution of the application fee of CAD$50 for each application. Once the Canadian agencies approve an application, it will go to the U.S. enrolment centre at the Pacific Highway Truck Crossing, where the INS will do their own evaluation and criminal background check on the applicant. When an applicant clears the preliminary checks, an interview will be set up, most likely at the Pacific Highway Truck Crossing enrolment centre.

On November 30, 2001, Citizenship and Immigration Canada ("CIC") announced that the "Spousal Pilot Project" would become a permanent program. At the same time, some significant changes were made to this program. The Spousal Pilot Project allows the spouses of highly skilled people coming to Canada as temporary workers to be authorized to work without being subject to the same preliminary rigors as most other foreign workers.

The Spousal Pilot Project commenced on October, 1998. The implementation of the Spousal Pilot Project was driven by CIC's realization that, in order for Canadian employers to attract skilled foreign workers to Canada, it would be necessary to permit their spouses to also obtain employment in Canada without as much difficulty as that faced by a typical foreign worker.

In order for most foreign workers to obtain an Employment Authorization to work in Canada, their prospective Canadian employer must first approach Human Resources Development Canada ("HRDC") for the purpose of obtaining Labour Market Validation ("Employment Validation"). The process of obtaining Employment Validation normally requires an assessment of the existing job market and the likely effect of permitting the foreign worker into the Canadian labour force. Depending on the skill set, experience and qualifications of the individual, in many cases it is difficult or impossible for the accompanying spouse of a skilled foreign worker to satisfy the Employment Validation process.

Given that the cost of living in Canada requires a dual income for many people, the result was that a number of skilled foreign workers were forced to decline offers of employment in Canada. The Spousal Pilot Project therefore came into being to enable spouses of skilled foreign workers to obtain an Employment Authorization, without being subjected to the normal Employment Validation process.

The November, 2001 announcement by CIC included a number of changes. First and foremost, the temporary Spousal Pilot Project is now a permanent program of CIC.

CIC has also expanded the category of workers ("primary workers") whose spouses will now qualify under this Program. The list of occupations for the primary worker now include a number of technical and skilled trades, in addition to the previous job categories which are generally in the managerial and professional area.

Another change is that an accompanying spouse is now able to apply for an open (i.e. not job-specific) Employment Authorization at the time they first enter Canada. The accompanying spouse can also apply at a later date for an open Employment Authorization within Canada. The benefit of applying at the time the accompanying spouse enters Canada is that they will not encounter the same delay that they will if they apply later on from within Canada. This delay can often lead to difficulties in arranging the start date for their employment, which in turn can lead to losing a prospective job or, at the very least, frustration for both employer and employee.

Another significant change to this program is that, consistent with Canada's Charter of Rights and Freedoms, the provisions of this program are now available not only to persons filling the traditional definition of a "spouse". This program is now open to persons who are considered to be common-law partners. A common-law partner is being defined as a person who is cohabiting in a conjugal relationship with another person, having so cohabited for a period of at least one year. Common-law partners also include same sex partners.

The new Immigration Act and Refugee Act (“IRPA”) received royal assent on November 1, 2001 and is scheduled to come into effect on June 28, 2002. Two sets of proposed regulations setting out in detail the procedures needed to administer the new Act were published in the Canada Gazette on December 15, 2001 and March 9, 2002. The first set of proposed regulations addressed selection, enforcement, refugees and the selection transition provisions. The second set of regulations related to seizures, loans, debt collection, transportation companies and transitional provisions.

Consultations with parliamentarians, provinces, territories and other interested parties on the proposed regulations have been ongoing since the pre-publication of the first set of regulations. This means that the proposed regulations are still a “work in progress” until the publication of the final regulations in the Canada Gazette, prior to the June 28, 2002 implementation date of the new Act.

The provisions dealing with transition in the first set of proposed regulations may be found at Part 16, ss. 259 and 260. The proposed transitional regulations published on December 15, 2001 dealt with the selection for “economic” classes of immigrants. The “economic” category of immigrants includes skilled worker (independent and assisted relatives) and business immigrants (entrepreneurs, investors, and self-employed).  The transitional regulations are extremely important, as a number of provisions in the new Act and regulations are to be applied “retroactively”.

In light of the negative feedback that Citizenship and Immigration Canada (“CIC”) received with respect to the proposed transitional provisions contained in the first set of regulations, the Honourable Mr. Denis Coderre, the Minister of CIC, amended the transitional regulations on February 26, 2002. The amendments had the effect of allowing more skilled workers to be assessed under the current selection grid until January 1, 2003.

The key dates to bear in mind are December 17, 2001 (the date of release of the first set of proposed regulations), June 28, 2002 (the date the new IRPA comes into effect), and January 1, 2003 (for federal independent/skilled worker cases).

The transitional regulations for economic classes are as follows:

(1)  The transitional regulations apply to all applications submitted prior to June 28, 2002 in the skilled worker (independent and assisted relative) and business (entrepreneur, investor, and self-employed) categories.

(2)  All economic class applicants who receive a “selection decision” prior to June 28, 2002 will continue to be processed to finalization under the current regulations.

A “selection decision” refers to the visa officer’s assessment in determining whether the applicant meets the minimum number of points to qualify for immigration. The visa officer may render a refusal decision or a positive decision. This assessment would usually occur after paper screening, at interview or at the time that the visa officer has determined that the case warrants an interview waiver. The timing as to when the “selection decision” is made at CIC Overseas Missions will vary depending on such factors as specific administrative practices; the size of that mission’s “inventory/backlog” of cases; and whether additional checks are required.

(3)  Skilled Workers who applied before December 17, 2001:

(a)  who have not received a “selection decision” prior to June 28, 2002, will continue to be selected under the current selection criteria until January 1, 2003;

(b)    who have not received a “selection decision” prior to January 1, 2003, will be subject to the proposed selection criteria and the proposed pass mark of 70 points.

(4) Skilled Workers who applied after December 17, 2001 and have not received a “selection decision” by June 28, 2002, will be subject to the new proposed selection criteria and a pass mark yet to be determined. The proposed pass mark in the first set of pre-published regulations was 80 points. As of mid-April, 2002, CIC has only indicated that the pass mark will fall within the range of 71 to 79 points.

(5) Business Immigrants (Investors), who applied before April 1, 1999, and have signed any investor document (having made the investment under the federal or provincial provisions) before April 1, 1999, will be dealt with in accordance to the current selection criteria. Otherwise, one must refer to the transitional regulations described in (2) and (6) of this article.

(6)  Business Immigrants (Entrepreneurs, Investors, and Self-employed) who applied after December 17, 2001, and  have not received a “selection decision” prior to June 28, 2002, will be dealt with under the new proposed regulations. This has major ramifications given that the proposed regulations have made significant changes to the definitions of business applicants - entrepreneurs, investors and self-employed. (see “Show Me The Money!”, p.1)

In the latest proposed changes to the transitional regulations on February 26, 2002, the Minister of CIC has provided economic applicants (skilled workers and businesses) with the option to withdraw their applications and request a refund of the government processing fees. This provision only applies in limited circumstances where the application submitted has not as yet passed through the preliminary evaluation, referred to as “paper screening”. To initiate a refund, applicants must contact the CIC Overseas Mission where their application was submitted.

Applicants who have received a notice of waiver of interview, an invitation to an interview, a letter indicating that the interview will be scheduled at a future date, or instructions to undergo a medical examination are not eligible for the refund as their applications have already completed the “paper screening” process.

Applicants whose cases have been refused are also not eligible to apply for refund of the government processing fees.