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CANADA - QUEBEC IMMIGRATION RULES (Independent immigrant class)

DISCLAIMER:
This writing has been prepared by Colin R. Singer, Attorney-At-Law, for the intended reference by interested individuals and is not intended to create an attorney - client communication. This compilation may be reproduced for the personal non-commercial use of interested individuals on the express or implied condition that the contents herein are neither edited, modified nor altered in whole or in part, directly or indirectly without the express written consent of the author herein..

Introduction

Since the inception of the Cullen Couture Agreement in 1978, as amended by subsequent accords between the Governments of Canada and Quebec (Canada-Quebec Accord Relating to Immigration and Temporary Admission of Aliens, 1991), the Quebec Government is currently the only province to have concluded a comprehensive agreement with the Government of Canada for the purpose of facilitating the formulation, coordination and implementation of immigration policies and programs with respect to the admission of foreign nationals to the province. Consequently, the Quebec Government enacted in 1981 (and re-enacted in 1994), its own laws regulating the selection of foreign nationals wishing to settle permanently or temporarily in Quebec: An act respecting immigration to Quebec, (R.S.Q., c.I-0.2) and its attendant regulations.

The following presentation provides an overview of the current rules and processing procedures for Quebec destined applicants applying under the Independent Class.

Under Quebec law the majority of foreign nationals are selected each year under the Independent Class comprised of the worker, business investor, entrepreneur and self-employed. The Quebec Minister of Immigration (Ministère des Relations avec les citoyens et de l’Immigration « MRCIQ »), legislates by Ministerial Order, the number of points that can be allocated to each of the selection factors; the authority to create, eliminate and/or modify a mandatory minimum number of points which applicants can be required to obtain for each of the selection factors within each class of immigrants; and the authority to retrospectively enact regulatory amendments which could apply to applicants submitted prior to an amendment and which have not proceeded to a specified point in the assessment process.

Each year the MRCIQ submits its annual report to the Quebec National Assembly outlining the number of immigrants to be admitted to the province in the following year. Where immigration levels are reached in a given year, across all levels or within sub classes of the immigration plan, the Minister may suspend the processing of existing inventory until the subsequent year. Indeed, Quebec has the authority to admit a substantial number of immigrants, far more than any of the other Provinces in Canada.

Since 1996, the MRCIQ has periodically amended the worker class selection process in order to facilitate immigration to Quebec and reinforce demographic objectives by, among others, increasing the proportion of economic immigration to Quebec to more than 50% of the total numbers admitted each year, and increasing the overall proportion of Francophone immigration to more than 40%.

In 1995, of the 25,790 foreign nationals admitted to Quebec in all categories, 42% were independent immigrants (including business applicants); 37% possessed knowledge of the French language while a further 25% listed French as their mother tongue.

In 2002, Quebec approved 21,600 workers and 3000 business applicants representing approximately 60% of the total numbers of foreign nationals admitted under the economic stream. During the period 1996 - 2001 foreign nationals as a percent of the total population in Quebec increased by 5.3% from 9.4% to 9.9%.

In 1991, Quebec received 22.4% of the total number of immigrants admitted to Canada, while this figure declined to 12.3% in 1995 and has remained in this range for each of the past two years. Approximately 88% of the immigrant population establish residence in Greater Montreal and comprise 27% of the total population of Montreal.

With respect to the worker class, during the years 1996, 1997 and 1998, Quebec issued approvals (Certificates of Selection (“CSQ”)) numbering 8514, 10079 and 12,418 respectively. Under the business class, approximately 3250 CSQ’s were issued in each of the years 1996 and 1997 and 4677 were issued in 1998. With the exception perhaps of 1995 and 1996 the Quebec Government appears to be reaching its numerical objectives in the independent stream including the proportion of Francophone immigrants, which represented approximately 42% of CSQ’s issued in 1998.

During the years 2000 and 2001 Quebec admitted 21,900 and 23,200 foreign nationals in the economic stream with slightly increasing numbers forecasted for 2004 through 2007.

However, an area in which the Quebec Government welcomes an improvement is the rate of retention (those actually settling in Quebec) which has historically averaged approximately 25% - 28% and which currently averages 18% - 22% depending on how one measures this demographic movement.


Selection Rules - Workers

The Independent class of immigrants includes a designation of “worker” under R21 (a) defined as an applicant who:


1. comes to Quebec to hold assured employment;

2. is qualified to exercise an occupation mentioned in the List of occupations in demand in Quebec; or

3. has an employability and occupational mobility level, as provided for in factor 2C of the Selection Grid for Independent Immigrants in Schedule A, that is likely to allow him to hold employment, taking into account the occupational and personal qualifications, and the principal occupation is not mentioned in the List of inadmissible occupations.


Applicants are assessed under a selection grid (R31, R32, Schedule A), comprised of nine major factors. These include: education, employment, experience, age, language, adaptability, suitability of spouse, presence of children and financial self-sufficiency; with a number of criteria and sub-criteria providing for a total of 20 possible elements of assessment.

The allocation of points is outlined in a separate schedule: Regulation respecting the weighting applicable to the selection of foreign nationals, Schedule I. Successful unmarried applicants must obtain 60 out of a possible 106 points, while a married person must obtain 68 of a maximum 123 points.

S3.3 (b.3) of the Immigration Act and R7 of the Regulations, provide for the mandatory pre-screening of the main applicant, who must be favourably assessed at this stage in order to proceed to a selection evaluation. To succeed at the preliminary pre-screening stage, applications filed at one of nine Quebec government offices (Brussels, Buenos Aires, Damascus, Hong Kong, Mexico, New York, Paris, Rabat or Vienna) must:

- possess a minimum of 6 months of applicable employment experience during the ten year period preceding the filing of the application (in an occupation at a level of qualification higher than D within the meaning of the National Occupational Classification), which can include experience acquired during periods of apprenticeship or periods of on-the-job training which form part of applicable diploma requirements, excluding experience acquired in an occupation mentioned on the List of inadmissible occupations: (Regulations, Schedule A, Section 2.C.2.1);

- have access to sufficient financial resources to cover the first three months of living expenses for the applicant and accompanying dependents (Regulations, Schedule A, Section 9); and

- provide evidence of employability in the Quebec labour market under three possible scenarios (Regulations, Schedule A, Section 2A, 2B or 2C):

A. “Assured Employment” - Applicants with assured employment

B. “Occupations in demand” in Quebec - Applicants with skill sets in selected high demand occupations or

C. “Employability/Mobility Program” - Applicants not falling with the two groups and who possess general overall skill such as education, language, age, experience, and ties to Quebec which provide an indication of successful integration into Quebec society.

Assured employment
This offer of employment program incorporates the old “validation” and “attestation” procedures while exempting qualified employers in certain industries from the administrative requirement of advertising the employment position in the local labour market. Prospective applicants may be allocated the maximum of 15 points under this factor, where the full-time employment position being offered is short listed on a list of occupational labour market shortages (Exemptions of proof of workforce scarcity), and the applicant has relevant employment experience (at a level of qualification higher than C within the meaning of the National Occupational Classification, and the worker meets the conditions of access to the occupation within the meaning of that classification).


Occupations in demand in Quebec
Applicants without a valid offer of employment will be assessed under this factor, which can provide the prospective applicant with the maximum of 12 points. To qualify, the relevant experience must be compatible with one of the listed occupations, which provide a measure of favourable medium term prospects of employment in the Quebec labour market. Prospective applicants must also meet applicable occupational entry or licensing requirements (Regulations, Schedule A, Section 2C).

Employability and occupational mobility
This factor accounts for the majority of successful pre-screenings and is applicable to those applicants who do not meet the pre-screening requirements of either of the foregoing employability factors. Emphasis is placed on a variety of elements that assess the medium term prospects of an applicant’s overall employability and mobility potential in Quebec. Experience includes training periods served during apprenticeship, training or specialization attested to by a diploma, in an occupation at a level of qualification higher than D within the meaning of the National Occupational Classification, excluding experienced acquired in an occupation mentioned on the list of inadmissible occupations.

Single applicants must obtain 30 of a possible 52 points under 8 elements of assessment within the 5 following criteria: education, occupational experience, age, language (French and English), prior visits/ties to Quebec. Married applicants must obtain 35 of a possible 52 points under the same criteria with an additional points being awarded for the spousal qualifications.

Applicants who meet the cut-off of 30 points will be allocated the maximum of 8 points under the employment factor. Where applicants meet the minimum experience and financial self-sufficiency pre-requisites, the successful pre-screening assessment will proceed to the selection assessment stage of the process, which at present includes a selection interview (R8), although a substantial number of well qualified applicants proceed to selection without an interview. Under the selection assessment stage applicants are re-evaluated under a separate process. To qualify for an interview single applicants must reach 50 points whereas married applicants must secure 58 points.

Applicants who do not obtain the required number of points to qualify for selection following an interview may receive consideration by the Minister for issuance of a CSQ if the foreign national has obtained at least 20 points for the assessment in accordance with Schedule A of the Selection Grid and if the Minister is of the opinion that the result obtained does not accurately reflect the applicant’s potential for successful establishment in Quebec (R40).

Applicants who qualify for selection under the assured employment program are processed under R22, as a third order priority on the same level as investors, entrepreneurs, or a self-employed applicant.

Selection Rules - Business

As in the case of skilled workers and assisted relatives, entrepreneur and self-employed applicants are required to successfully complete a mandatory pre-screening evaluation.

  • Investor
    An investor is defined as a foreign national with three years of management experience in a lawful and profitable agricultural, industrial or commercial enterprise, in a government body or an international body and who possesses a personal net worth of $800,000 accumulated through lawful economic activities (R21 (d)). The investor must also undertake to invest $400,000 for five years, in a prescribed investment (R34.1).

    A 1996 regulatory modification introduced the definition of management experience which equally applies to investors and entrepreneurs and is defined in R1 (e.1) as follows:

    "The actual assuming on a full-time basis of responsibilities and duties related to the planning, managing and control of material, financial and, where applicable, human resources, provided that such responsibilities and duties are not assumed in the context of an apprenticeship, training, or specialisation process attested to by a diploma".

    When assessing applications, the definition of management experience is strictly followed and given a narrow interpretation by the Quebec government authorities. Accordingly professionals such as doctors, dentists, accountants and lawyers do not qualify as management experience.

    Quebec promotes its own $400,000 immigrant investor program under the authority of the Canada-Quebec Accord and the federal Immigration and Refugee Protection Regulations, 2002. The prescribed investment is irrevocably deposited into an escrow account with a licensed investment dealer or a financial institution acting as the fund manager on behalf of the investor. Under the June 8, 2001 program currently in force, investors are able to select financing provisions that typically will permit the investor to deposit $120,000 and borrow the balance of $280,000 for a total investment of $400,000. The Quebec government now guarantees repayment of the full investment but not the investor’s borrowing costs.

    The financial institution takes fees and interest from the down payment, the immigration representative receives commissions from the down payment. The Quebec government disburses the net proceeds to the borrowing Quebec Corporation. The net cost to the investor is the down payment. The five year investment begins following Quebec approval even before the investor comes to Canada. If the investor is refused by the Federal authorities for a medical or security inadmissibility, the investment is refunded.

  • Entrepreneur
    An Entrepreneur is defined as a foreign national with three years of management experience in a lawful and profitable agricultural, industrial or commercial enterprise and who will establish, acquire or participate in the active management of a lawful and profitable agricultural, industrial or commercial enterprise that will immediately employ three full-time residents of Quebec, other than the foreign national and his accompanying dependants (R21 (b)).

    Prospective entrepreneur applicants, (as in the case of skilled workers, assisted relatives, self-employed and investors), are also assessed under a selection grid (R31, R32, Schedule A). For entrepreneurs, there are eight major factors of consideration including: education, experience, age, language, adaptability, financial self-sufficiency, personal net worth, and aptitudes to carry out a business project. The allocation of points for each of the factors is outlined in a separate schedule: Regulation respecting the weighting applicable to the selection of foreign nationals, Schedule III. Successful applicants (there is no consideration for the marital status of the applicant), must obtain 50 out of a possible 123 points with at least 18 (out of a possible 30) derived from the factor - "aptitudes to carry out a business project”.

    To succeed at the pre - selection stage, the applicant must have a minimum of three years of applicable management experience, possess a personal net worth of $300,000 acquired legally and, have sufficient additional settlement funding to cover the cost of the applicant's first three months of living expenses in Quebec.

    Following a successful pre-selection, entrepreneur applicants are convoked to interview, at which time the remaining six selection factors, including the business project, will be assessed. The applicant's aptitudes to carry out a business project are assessed under four criteria including, knowledge of Quebec; market research; financial resources; and feasibility and relevancy of the business project. Applicants are strongly encouraged to undertake an exploratory visit to Quebec prior to a selection interview although some applicants are selected without having completed any such visit.

    It is of interest to note that while Quebec entrepreneurs are selected on the basis of applicable Quebec selection criteria, the parameters of the mandatory universal terms and conditions of landing imposed on all entrepreneurs and their dependants, pursuant to R98 of the federal Immigration and Refugee Protection Regulations, 2002, are for removal purposes, subject to federal law. (See: "Entrepreneurial Terms and Conditions Revisited", C.R. Singer, 6 Immigration & Citizenship Bulletin, #7, p.3, Carswell).

  • Self - Employed
    Self-employed applicants are primarily differentiated from worker applicants in that to qualify the self-employed must have two years of applicable experience, possess a personal net worth of $100,000, have sufficient settlement funding and will come to Québec to create employment for himself by practicing a profession defined in the National Occupational Classification (R21(c)).

    Like workers, the self-employed applicant is assessed under a selection grid (R31, R32, Schedule A), comprised of nine factors.

    The allocation of points is outlined in a Schedule III. Successful unmarried applicants must obtain 40 points out of a possible 84 points on pre-selection and 50 points out of a possible 94 points on selection. Married applicants must obtain 48 points out of a possible 101 points on pre-selection and 58 points out of a possible 111 points on selection.

Procedure

As a general rule, prospective applicants intending to settle in the province of Quebec are required to file an application for a Quebec Certificate of Selection with one of nine Quebec government offices located outside of Canada. Once an application has proceeded to a positive selection decision, the applicant is required to submit an application for permanent residence with a Canadian visa office. Once the applicant has successfully completed the required federal statutory verifications including health and security, the final disposition of the application will lead to visa issuance.

The filing procedures and documentation required vary substantially between Quebec government offices and between worker and business applications.


Processing delays

Processing delays of Quebec cases to visa issuance vary significantly between Quebec government offices and between source countries within a particular territory. These variations are largely dependent upon the size of a territory, the availability of simultaneous processing procedures at a visa office, the number of Quebec area mission trips being conducted within a particular territory and the efficiency or processing inefficiencies of a particular federal visa office. As there has been a steady increase in the numbers of applications being filed through certain Quebec offices (Hong Kong, Damascus) this will likely result in increased delays to visa issuance on average at those missions. Conversely, the Quebec government is currently reviewing measures to maintain processing efficiency while ensuring overall program integrity.

One such measure is the re-introduction of the availability of selection interviews held in Montreal for certain business applicants. Business applicants (Investor and Entrepreneur) who are able may opt for a Montreal selection interview which can shorten overall processing time.

Quebec investors can generally incur processing times in the area of 18 months or less to visa issuance and 12 months to begin the five year investment period from application submission. Entrepreneurs can expect overall processing times in the area of 18-30 months.

Workers who submit acceptable French language proficiency tests are often processed in approximately 12-15 months to visa issuance.

Applicants who require early entry status may consider alternative methods of entering Canada on a non immigrant basis while waiting for permanent residence processing to conclude.

The use of directives

The MRCIQ manages its immigration program through the use of policies, guidelines and directives most of which appear in the Guide des procédures de d’immigration (“GPI”). The Quebec Court of Appeal has held that these guidelines are binding on the MRCIQ.

Contesting refused applications

The Quebec Superior Court in virtue of its superintending and reforming powers emanating from the rules of common law and Section 33 of the Quebec Code of Civil Procedure is the court of jurisdiction to contest by way of motion (evocation, mandamus, declaratory relief, etc.), administrative decisions emanating from the MRCIQ refusing applications for certificates of selection. Such motions must be instituted within a reasonable delay from the decision giving rise to the recourse.

But applicants must first proceed with an Administrative Review process by filing a request for reconsideration within 90 days from refusal. This is an informal process which generally rubber stamps the initial refusal. Given the complexities often surrounding an overseas immigration matter, delays of five or six months to institute recourse in Quebec Superior Court following a refusal is entirely permissible in Quebec.

Interestingly and unlike the federal domain, there is a paucity of Quebec based jurisprudence that addresses issues of selection under the Independent immigrant class. Given the MRCIQ`s tendency to appeal (unsuccessfully) the few decisions emanating from the Superior Courts, applicants who are improperly denied admission by the MRCIQ can expect lengthy delays to obtain a judgment that provides no further right of appeal.


The role of lawyers

On February 1, 1999, the MRCIQ and the Canadian Bar Association Quebec Immigration Law Section and the Association of Quebec Immigration Lawyers, concluded an agreement (the “Service Standards Agreement”). This agreement was recently unilaterally rescinded by the Quebec government. The service standards agreement established processing service standards and interaction guidelines involving Quebec lawyers representing applicants seeking admission to Quebec, while expressly recognizing the “partnership” status enjoyed by member lawyers in the processing of such applications.

The decision to rescind the Service Standards Agreement with Quebec lawyers comes at a time when the Federal government is moving ahead with plans to regulate immigration consultants thereby giving formal recognition to lawyers and licensed immigration consultants. Still the importance of immigration lawyers in Quebec is undeniable because unlike other jurisdictions, Quebec lawyers are expressly permitted to attend selection interviews with their clients. Given Quebec’s unique role in the Canadian immigration industry, it will be interesting to see whether the MRCIQ moves forward to regulate fee charging immigration professionals who are not lawyers or notaries in order to further protect the public from unregulated consultants.