The practice of immigration law is very different now than it was on March 1, 2020. As the global threat presented by the spread of COVID-19 reached a critical stage, governments around the world took action to minimize the spread and “flatten the curve” within their borders, to do their part to keep the world safe. In Canada, these measures resulted in a flurry of announcements from the Prime Minister, Orders-In-Council, policy updates and office closures, directly impacting our clients.
With so many changes, it is difficult to think of all possible implications of these measures on temporary foreign workers. While each case will present its own anomalies, below are ten (10) general considerations for immigration practitioners advising temporary foreign workers and their employers.
Biometrics and Medicals
Although most Visa Application Centres (“VACs”) have closed or are offering limited services, applications for temporary residence can still be submitted online and are being processed. Given the exemption from the travel ban for temporary foreign workers, as discussed below, it would be expected that applicants outside of Canada should be able to secure a work permit approval from the Consulate or Embassy to permit them entry to Canada.
However, the finalization of work permit applications is dependent on the applicants’ submission of biometrics and, where applicable, the completion of a medical exam. An applicant’s ability to complete these steps will likely be hindered by office closures and other service disruptions.
In response, IRCC has automatically provided an extension of time from 30 days to 90 days for applicants to complete their biometrics and medical examinations and has indicated that applications will not be refused or closed if biometrics or medicals cannot be provided during this period. IRCC has also specifically advised that if an applicant cannot provide biometrics due to a location closure, they should not go to another biometrics collection service, including ports of entry or other international biometrics collections locations. Rather, applicants are instructed to wait until biometrics collection resumes at their local collection location.
The effect of this is that many foreign workers, while not banned from travelling to Canada, will be unable to secure the necessary work permit approval from the Consulate or Embassy to allow them to travel to Canada.
Exemptions to the Bans on International Travel for Temporary Foreign Workers
Another important legal issue to consider is whether the applicant meets the criteria to travel to Canada in light of restrictions on international travel.
The Governor-in-Council issued two Orders-In-Council, most recently updated on March 26, 2020, on the recommendation of the Canadian Minister of Health, pursuant to the Quarantine Act. These Orders-in-Council prohibit the entry of foreign nationals to Canada in light of the threat presented by the pandemic.
For persons seeking entry to Canada from a country other than the United States, they are subject to the terms of the Order-in-Council entitled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from any Country other than the United States). While this Order prevents the entry of all foreign nationals, there are exemptions for certain temporary foreign workers, including: