On September 18, 2003, the Honourable Denis, Minister of Citizenship and Immigration Canada ("CIC"), announced important changes pertaining to the Skilled Worker Category under the Immigration and Refugee Protection Act ("IRPA"). The Minister announced an adjustment to the pass mark for Skilled Worker applicants. He also proposed new measures for assessing Economic Class (i.e. Skilled Worker and Business) applicants who had applied under the former Immigration Act ("Former Act") but were affected by the transitional provisions following implementation of IRPA on June 28, 2002.

Effective immediately, all new Skilled Worker applicants and those currently in the system who have not yet received a selection decision will be assessed with a pass mark of 67.

Additionally, the Minister is proposing to amend the IRPA transitional provisions to allow for all Economic Class applicants who applied before January 1, 2002 to be assessed under the selection criteria of the Former Act. Applicants who do not qualify under the Former Act would then be assessed under the IRPA selection criteria.

When IRPA was implemented on June 28, 2002, there existed an inventory of Skilled Worker cases in process that could not be cleared before the coming into force of IRPA. In order to be procedurally fair to the affected applicants, CIC implemented transitional provisions. CIC extended the time in which the applicants could be processed under the old Regulations to March 31, 2003. Prior to the March 31, 2003 deadline, the affected applications were to be processed under a lower passmark of 70 instead of 75. The Department also offered a limited time frame to refund processing fees to those who had not received a selection decision.

In February, 2003, some Skilled Worker applicants were of the view that the transitional provisions being implemented by CIC were not fair and commenced an action against the Department of CIC. In the Federal Court of Canada case of Laurentiu Dragan vs. The Minister of Citizenship and Immigration Canada, Mr. Justice Kelen found that there was a breach of "procedural fairness" in the 102 pre-January 1, 2002 transitional applications involved in that case. The Judge ordered that the applications of those involved in the lawsuit who had applied before January, 2002 be assessed under the Former Act before March 31, 2003. CIC complied with that order.

For those applicants who submitted their applications after January 1, 2002, the Judge found that they had been aware at the time of submission of their applications that they would be processed under IRPA and that there was therefore no unfairness.

Following the Dragan decision, many other applicants felt that their applications should also be reviewed. In June, 2003, in the Federal Court of Canada case of Galina Borisova v. the Minister of Citizenship and Immigration Canada, Mr. Justice Gibson imposed an injunction on CIC, preventing the Department from final refusals of any application which had been filed prior to January 1, 2002. This injunction also required the Department to notify all applicants that could potentially be involved in a class action.

Minister’s Proposed Change to Transitional Provisions

The Minister of CIC is proposing to amend the transitional provisions to allow Economic Class applicants who had filed their applications for permanent residence before January 1, 2002, to be assessed under the Former Act and then under IRPA if refused under the Former Act. The Minister plans to consult with the Cabinet on these proposed regulatory amendments at the first available opportunity.

In effect, these proposed amendments would meet the applicants’ request to be processed under the selection criteria in place at the time they filed their applications and also give them the benefit of an assessment under IRPA.

CIC also proposes to offer the same processing rules to those who had applied prior to January, 2002 and who were refused between the coming into force of the new selection criteria on March, 2003 and June 20, 2003 as well as those who withdrew their applications between January 1, 2002 and the coming into force of these proposed regulatory amendments.

The onus will be on the applicants in the last two identified groups to advise CIC of their desire to be processed before January 1, 2005.

CIC does not propose to make any regulatory amendments to allow for new transitional provisions to applicants who applied to immigrate to Canada between January 1, 2002 and the coming into force of IRPA on June 28, 2002. The rationale is that these applicants were aware, at the time they filed their applications, that they would be processed under IRPA. The courts have not disagreed with the Department’s interpretation of the transitional provisions as they apply to this group.

Effective October 1, 2003, the number of H-1B visas that can be issued for fiscal year 2004 will be reduced from 195,000 to 65,000. The H-1B visas are mostly used to transfer high-tech workers and professionals from all over the world to work in the United States for up to three years. Many of the members of the United States Congress who supported the increase in fiscal year 2000 now believe that 65,000 H-1B Visas are sufficient. It is generally expected that this new lower quota will set off a scramble by companies to fill their slots early before the ceiling is reached. If you want to learn more about the requirements for applying for H-1B visas, please contact Larry Yen at 604.891.7715 or lky@cwilson.com.