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For Foreign Truckers (and Their Employers)

Introduction

There are many important immigration issues facing the Canadian trucking industry and their foreign drivers (or prospective foreign drivers):

how to qualify for work permits; how to qualify for permanent residence under provincial nominee programs; what applicable COVID-related provisions/exemptions there may be for truckers crossing the border; and much more.

Today, we highlight a new initiative by the federal government that will help many foreign drivers and their employers. Because it is a program that has limited parameters (in terms of availability, time frame within which to apply, etc.), it is something that should be considered quickly. In mid-April 2021, Immigration, Refugees and Citizenship Canada (IRCC) announced a number of limited-time pathways that foreign nationals could secure Canadian permanent residence (PR). Without going too far into the rationale for the creation of the programs, there are various policies in play, relating to (a) international graduates, (b) those that are French-speakers, and (c) those involved in ‘essential services.’

In this article, we focus on the program relating to those in essential services, under which many truckers will fall. Note that this program is for persons intending to reside outside Québec, as Québec runs its own selection system. However, in theory, someone currently in Québec could still qualify for the program with the intention to reside in another province, but of course, the ability to establish that intent may be more difficult, and it will be necessary to convince the decision-maker of that intent.

PR for Essential Service Workers

The ‘essential services’ program is in fact broken down into two types:

(a) health-related occupations (referred to as ‘Stream A’), and

(b) other essential occupations (referred to as ‘Stream B’).

This is an important distinction because, as noted above, this is a limited-time program, and there are indeed separate quotas for each of these two categories. For the purposes of this article, and as will be discussed further, we are of course dealing with non-health related occupations and must consider the issues as relate to Stream B requirements. In that regard, the quota for allowable applications is 30,000. The quota opens on May 6, 2021 and closes on the earlier of the filling of the quota and November 5, 2021. As such, time is of the essence.

Essential Services – Transport Industry/The Relevant Jobs

With that background in mind, we now look at eligible occupations and those that deal with transport. In that regard, the following occupations are eligible for the purposes of seeking PR:

NOC Code Occupation
7511 Transport Truck Drivers
7512 Bus Drivers, Subway Operators, and Other Transit Operators
7513 Taxi and Limousine Drivers and Chauffeurs
7514 Delivery and Courier Service Drivers

‘NOC’ is the National Occupational Classification. Every job in Canada has an affiliated four-digit NOC Code and, when accessing the immigration system in any way, an officer will assess an applicant’s skills and qualifications against the NOC Code. The requirements, duties, and other issues set out in the relevant NOC Code must be substantially met – failing which, an application may fail or otherwise be impacted. It is the substance of the NOC Code that counts, not the title. So, even though someone labels themselves in Occupation X, if the elements of the NOC Code do not substantially match with the applicant’s actual job or specified requirements, they will not be considered in Occupation X. For instance, (to use an extreme example), someone who calls themselves an electrician, and whose job duties are actually fixing sinks and water pipes, will find that the NOC Code for their job will not match electrician and the consequences of that mischaracterization will ensue (notably, that the person will not be considered in that occupational category). In many cases, the difference is more subtle – such as the consideration of whether a person is a software engineer or a computer systems analyst, and in some cases, that may impact assessment.

For our purposes, it may seem obvious that a Truck Driver drives a truck, but each category may have listings of licence type or other requirements, so it is important for anyone seeking to apply for this program to check the NOC Code and make sure that they will meet the requirements of the NOC Code; otherwise, all the effort and activity in seeking PR may be wasted. NOC Code details can be found by searching at https://bit.ly/2QAvWit.

PR Program Requirements

Now that we’ve seen some of the background in terms of quotas, occupational considerations generally, and other program issues, we need to consider the actual elements of the program, and how to qualify.

There are a number of requirements. At the time of application, the applicant must:

1. Have accumulated at least one year of full-time work experience, or the equivalent in part-time experience (1,560 hours), in Canada, in an eligible occupation in the three years preceding the date of submission of the PR application;

• For those in Stream B (under which the transport jobs fall), the one year of work experience must be obtained in one or more occupations listed for Stream B.

a. Though there are considerations for those who have experience in occupations in both Streams A and B, we are assuming here, that we are speaking of only people whose jobs fall under one or more of the above NOC Codes, which are all Stream B.

2. Be employed in Canada;

3. Have been ‘working’ as per relevant legislation and regulations, under appropriate legal authorization, and not have been self-employed;

4. Have attained a level of proficiency of at least benchmark 4 in English or French in each skill area (reading, writing, speaking, listening) through a designated test no older than two years at the time of the application;

• For English, the primary tests used are the IELTS (www.ielts.org) or the CELPIP (www.celpip.ca);

• For French, the primary test is the TEF (www.lefrancaisdesaffaires.fr/en/tests-diplomas/test-for-evaluating-french-tef/tef-canada);

5. Reside in Canada with valid temporary resident status (or be eligible to restore their status) and be physically present in Canada at the time the application for permanent residence is received and when the application is approved;

• Emphasis added – it is imperative to note that this program is essentially for people already in Canada;

6. Intend to reside in a province or territory other than Québec;

7. Submit an application for permanent residence using appropriate forms provided by IRCC for the program, and include at the time of application all proof necessary to satisfy an officer that the applicant meets the conditions (eligibility requirements) of the program, except for evidence required to demonstrate physical presence in Canada at the time of application approval;

8. Submit their application for permanent residence under the program using electronic means (apply online).

• There are exceptions for those with disabilities, unable to meet this requirement; and

9. Not be inadmissible under Canadian immigration laws and regulations;

• Inadmissibility may have to do with a criminal history, medical conditions (though rules in this regard are changing), or certain other grounds under which Canada refuses admissibility, despite otherwise meeting substantive program requirements.

All necessary application fees must of course also be paid.

Note that all supporting documentation required to assess whether a foreign national meets the conditions of the program must be included at the time of application (except for proof of residence at time of approval), officers retain discretion to request additional supporting documentation to confirm admissibility and eligibility at any time through the processing of the application.

Dependents

The program permits an applicant’s foreign national family members to accompany him, but there are differences in considerations depending on whether the family members are inside or outside of Canada.

For those dependents in Canada, permanent residence will be granted if:

1. The dependent is in Canada;

2. The dependent has been included as an accompanying family member in the principal applicant’s application for permanent residence;

3. The dependent is a “family member” as defined by the regulations, which are:

• The spouse or common-law partner of the applicant;

– Briefly, a common-law partner (same or opposite sex) is a partner who has been in a conjugal relationship with the applicant for at least one year, and evidence in support of this must be shown;

• The dependent child of the applicant or the applicant’s spouse or common-law partner;

– A dependent child is a child less than 22 years old (unless the child has a physical or mental disability and has financially dependent on a parent’s financial support beyond the age of 22), who is either:

a. a biological child of the parent
(if not adopted by a third party);

b. an adopted child;

• A dependent child of a dependent child as defined in the preceding bullet; and

4. The dependent is not inadmissible.

For those dependents outside Canada, the requirements are similar, but listed separately. Permanent residence will be granted if:

1. The dependent has been included as an accompanying family member in an application for permanent residence by a principal applicant;

2. The dependent meets the definition of family member set out above; and

3. The dependent is not inadmissible.

Conclusion

The program discussed in this article is a unique, limited-time, opportunity for many foreign workers in Canada, and notably, many in the trucking industry. It provides eligible applicants with the ability to seek permanent residence for themselves and their families, and may be much simpler than applications through other programs such as provincial nominee programs. However, there are various requirements and nuances that must be considered, and given the small window of opportunity, is impetrative that applications filed under this policy be properly considered and submitted.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Benjamin A. Kranc is principal of Kranc Associates, a Canadian corporate immigration law firm. Ben obtained his LL.B. from the University of Western Ontario and was called to the Bar in 1988. He was certified as a specialist in immigration law by the Law Society of Ontario in 1997, and is the author of ‘North American Relocation Law.’ Ben has also lectured at the University of British Columbia Immigration Program. For more information, please see www.kranclaw.com and www.linkedin.com/in/benjaminkranc. Ben can be contacted at bkranc@kranclaw.com or 416-977-7500.

 

Current News

Confused? I’m Not Surprised

By Michael Ahart, Vice President of Regulatory Affairs, Omnitracs

The Canadian ELD Mandate goes into effect June 12, 2021. What does that really mean?

All federally regulated motor carriers in Canada must equip commercial motor vehicles with a third party certified ELD device by June 12, 2021… or do they? Law enforcement will begin enforcing the mandate and issuing ELD related citations beginning June 12, 2021...
or will they?

There is a lot of confusion surrounding the Canadian ELD Mandate so I join you in trying to understand what’s myth, what’s reality, and what will happen when. Here is where we are.

As indicated by the Minister of Transportation, the Mandate will go into effect June 12, 2021. However, on March 2, 2021, he stated that the government will begin a phased enforcement rollout after June 12 that focuses on ELD education and awareness at first. Does this mean that drivers can continue to use paper logs? How long will this period of education and awareness last? Why have they decided to take this approach?

I’ve heard the terms ‘deferred enforcement,’ ‘progressive enforcement,’ and ‘graduated enforcement’ used in various industry-related circles to describe expectations; however, as of this writing, no related enforcement program has been shared – although we can expect that the Canadian Council of Motor Transport Administrators will provide a proposal within the next few weeks. There is no doubt we will be knocking up against the deadline before we have clarification.

I know there is a limited number of motor carriers happy to see a delayed enforcement program, as they’d rather continue using paper logs. Many others are unhappy as they have already made the investment in electronic logging devices and are simply waiting on an over-the-air update with the third- party certified ELD software.

The lack of clarity on the topic has a significant impact on those who are concerned if their financial investment has/will result(ed) in the acquisition of an ELD that will receive third-party certification. There are currently no certified ELD devices listed on the Transport Canada website, although many devices have been submitted for certification. With multiple ELD providers submitting multiple ELD devices to the one accredited certifying body, motor carriers must obtain assurance from their ELD provider that it is actively participating in the third-party certification process developed by Transport Canada. At a cost of nearly $50,000 USD per ELD submitted to obtain certification, the financial investment made by the ELD provider is a significant commitment and will be undertaken by a limited number of ELD providers.

Read more ...