Recent changes to Canada’s immigration legislation have called for the closure of Federal Skilled Worker (FSW) files submitted before February 28, 2008. Many who applied before this date have been confused and upset by this decision, and want to know what they can do to fight it.
This article’s intent is to explain, generally, why the decision was made and what recourse applicants have to protect their rights and seek justice for their cases.
A Brief Background
Compared to similar countries, Canada enjoys a high level of immigration as well as a robust economy and a culture that is welcoming to newcomers. For these and other reasons, thousands of prospective immigrants from around the world apply for Canadian immigration each year. Historically, the largest and most popular program through which to do this was the Federal Skilled Worker program. The FSW program allows successful applicants to come to Canada as Permanent Residents and land anywhere in the country except for Quebec. The Province of Quebec has its own skilled worker program, which has not been affected by the recent legislation and remains open.
Under the old system, applicants to the FSW sent their applications to the Visa Office responsible for their area of residency. Visa Offices were given limits as to the number of FSW visas they could issue each year. However, no similar limits were placed on application intake. What resulted from this discrepancy was a rapidly growing backlog that in 2008 totaled around 600,000 applications.
In an effort to address this issue and to reduce the backlog, in February 2008 the Canadian government amended the Immigration and Refugee Protection Act, which contains the laws governing immigration procedures. The amendments granted the Canadian Immigration Minister the authority to take action (issue instructions) such as establishing application intake quotas, new application requirements, and new immigration categories. The changes in this amendment apply only to applications submitted on or after February 28, 2008.
Since the amendment, several Ministerial instructions have been issued. Amongst these were:
- Limiting FSW application intake to individuals with skills in one of 38 fields (later reduced to 29), Offers of Arranged Employment, or those currently working in Canada
- Introducing an intake cap of 20,000 (later reduced to 10,000) on those applying in the aforementioned specified fields
These new instructions created a hierarchy within the files waiting to be processed. Newer files, submitted under the new requirements, were processed faster than those submitted before February 28, 2008. Some pre-2008 applications still resulted in visa issuance – in fact, 34% of issued visas in 2011 were from pre-2008 submissions. However, most were left to sit.
Decision to Eliminate the Backlog
On March 30th, 2012, new legislation was introduced dictating that any application that had not received a positive decision as of March 29th, 2012 would be terminated. The applications submitted prior to 28 February 2008 as well as government processing fees would be returned to the senders. Because of this decision, approximately 95% of the remaining pre-2008 applications will be returned. This amounts to the elimination of approximately 300,000 applications.
The legislation for this decision was included as a small part of the large annual budget bill, known as “Bill C-38”, which was passed by Parliament. However, because some lawyers are currently challenging the legality of the new laws, it is likely that no action will take place until these court proceedings are resolved.
The Immigration Minister has stated that the decision to terminate these applications is a necessary step in transforming Canada’s immigration system into one that is “fast and flexible”.
“The Federal Skilled Worker Program backlog is a major roadblock to Canada’s ability to respond to rapidly changing labour market needs,” said the Minister. “Having to process applications that are as many as eight years out of date reduces our ability to focus on new applicants with skills and talents that our economy needs today.”
Court Case Against the Decision
The legality of this decision is questionable, to say nothing of its moral and ethical implications. Because of this, a group of immigration lawyers, including Attorney David Cohen, is bringing a case against the Canadian government. They hope to stop the legislation from taking effect and to bring justice to those individuals whose applications are scheduled to be terminated.
What You Can Do
If you submitted an application to the FSW program before February 28, 2008, and a selection decision on your application was not made by March 29, 2012, you can add your name to the list of applicants challenging the government’s decision. Attorney David Cohen is acting as co-counsel in the effort to prevent Citizenship and Immigration Canada from terminating pre-February 2008 applications. He is currently representing approximately 200 applicants.
The case is still in its beginning stages. However, lawyers have already secured a 90-day halt on returning any applications or government fees. If we are successful, it is possible that all affected individuals may benefit from the outcome of the court case even if they have not joined the litigation. However, by joining us at this time you can be certain that your application will be included in any successful court decision or negotiated settlement that is reached with CIC.
The more applicants who are willing to take a stand against the decision, the stronger message they will send to the Canadian government in court. You can take a stand now by clicking the link below and paying a one-time deposit:
By making your one-time payment of USD $500 and filling out your case information, you will be added to the quickly growing list of claimants. The immigration lawyers fighting for your case will take it from there, building an argument and presenting their case in court. In this way, you can make sure that your voice is heard, and if a decision is made that benefits pre-2008 applicants, you will be the best position receive your just rewards.
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