“Usually Required” Revisited

In a recent edition of this Newsletter, we commented on the term "usually required" and its controversial application by Visa Officers.

As we discussed earlier, applicants who apply for a Canadian Immigrant Visa under the "Skilled Worker" category are assessed under a "points" system. Under current Federal Selection Criteria, applicants are awarded "units of assessment" for a number of objective factors, such as age, education, occupational background and language ability. In addition, applicants must satisfy the employment requirements associated with their intended occupation in Canada, as set forth in the National Occupation Classification (NOC). The NOC will stipulate, for example, whether a particular occupation requires the applicant to have completed a certain level of education at a university or post-secondary level.

It is then up to Visa Officers to determine, on a case by case basis, whether a given Skilled Worker applicant satisfies all of the NOC requirements applicable to his or her intended job occupation. Thus, even though an applicant may have good English or French language skills, a high level of education, and several years of work experience, if the particular NOC requirements are not met, the applicant will most likely be unsuccessful.

In many cases, the NOC's wording leaves room for interpretation with respect to the exact educational and work experience requirements associated with many job occupations. One of the most controversial phrases employed by the NOC is that of "usually required." For example, it is relatively common for the NOC to provide that a certain type of university degree is "usually required" for qualification under a particular occupation. Given the importance of satisfying the NOC requirements, it is not surprising that a Visa Officer's interpretation of "usually required" can be the deciding factor in determining whether a Skilled Worker's application will be accepted or rejected.

Of late, many Skilled Worker applicants have found that wherever the NOC stipulates that a particular degree is "usually required," Visa Officers have interpreted this to mean "always required." In some cases, applicants have been rejected for the sole reason of not having the degree that was "usually required."

A client of ours was recently refused at the "paper screening" (preliminary) stage for just this reason. Our client had requested that he be assessed in the occupation of Computer Systems Analyst. In his refusal letter, the Visa Officer wrote that to qualify as a Computer Systems Analyst, a bachelor's degree in computer science, mathematics, business administration or commerce, or a college diploma in computer science is required. Our client, however, only had a bachelor's degree in Engineering.

We appealed this decision, arguing that the NOC does NOT state that a bachelor's degree in computer science, mathematics, business administration or commerce, or a college diploma in computer science "is required." Rather, the NOC states that one of these degrees is "usually required." Furthermore, we argued that our client's detailed CV, reference letters and university transcripts indicated significant studies and employment experience in the areas of computer systems analysis, computer programming/applications, electronics applications, mathematics, and business-related applications.

We stressed that this supporting documentation provided ample preliminary evidence as to our client's qualifications as a Computer Systems Analyst and, more particularly, as to the nature of his education, training and experience "in its entirety." At the very least, we submitted that our client should be granted the opportunity to demonstrate his qualifications as a Computer Systems Analyst at a selection interview.

Prior to the case being heard at the Federal Court of Appeal, the Crown agreed to rescind the Visa Officer's refusal letter and re-open our client's case. Our client will now have the opportunity to present his case at a selection interview.

It appears that in the future, Visa Officers may in fact be more liberal in their interpretation of the term "usually required." The Department of Citizenship and Immigration has recently released a draft Operations Memorandum (OM) on this very subject. Citing the recent trend in caselaw at the Federal Court of Appeal, the draft OM instructs Visa Officers to apply the term "usually required" in accordance with the following principles:

§ The term "usually required" does NOT mean "always required." Rather, it simply means "usually required."
§ When assessing the qualifications of an applicant who does NOT have the educational background that is "usually required," Visa Officers should examine the application IN ITS ENTIRETY to determine whether there are "persuasive reason[s] for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the 'usual' educational qualifications are not present." In other words, the applicant's education, training and work experience must be examined in its entirety.

While this draft OM has not yet been implemented, it is a sign that applications similar to that of our client will no longer be rejected at the preliminary "paper screening" stage. Hopefully, applicants whose qualifications do not meet the literal requirements of the law will henceforth have the right to demonstrate that they will still be able to hold employment in Canada in their intended occupations.