Operational Bulletin 442 – June 29, 2012

Cessation of Processing and Return of Fees for Certain Federal Skilled Worker Applications

Summary

In the past, people submitted applications under the Federal Skilled Worker (FSW) program. Officers processed the applications submitted since February 27, 2008. Effective June 29, 2012, the authorities ceased the processing of certain applications. Typically, these applications came under the Federal Skilled Worker (FSW) program.

As a result, Citizenship and Immigration Canada (CIC) would need to return the fees paid to them. The affected applicants paid these fees for the processing of the affected applications. The CIC would return these fees to the person who paid them. This is in accordance with the prescribed law.

Issue

The authorities have taken the decision to terminate certain Federal Skilled Worker (FSW) program applications made prior to February 27, 2008. The authorities took this decision in accordance with the amendments made to the Immigration and Refugee Protection Act (IRPA). The authorities also enacted these amendments as part of the Jobs, Growth and Long-term Prosperity Act. These amendments came into effect on June 29, 2012.

This Operational Bulletin (OB) provides instructions to officers on the steps they need to take for terminating certain applications. These applications came under the Federal Skilled Worker (FSW) program.

Background

The Jobs, Growth and Long-term Prosperity Act resulted in removing the majority of the backlog in the Federal Skilled Worker (FSW) program. It achieved this by:

• Terminating applications and,
• Returning the fees paid to the CIC by certain Federal Skilled Worker (FSW) program applicants, who had applied prior to February 27, 2008

Once the provisions of the Jobs, Growth and Long-term Prosperity Act came into effect on June 29, 2012, the officers received the legal authorisation for terminating certain Federal Skilled Worker (FSW) program applications.

In the past, a foreign national could submit an application for a permanent resident visa as a member of the prescribed class of federal skilled workers. However, officers could terminate these applications, if these applications:

• Were made prior to February 27, 2008 and,
• Resulted in officers not being able to establish  before March 29, 2012 (according to the prescribed regulations), whether the applicant:
• Met the selection criteria and,
• Met the other requirements applicable to that specific class

The Processing Instructions

The visa offices would need to stop processing certain Federal Skilled Worker (FSW) program applications made prior to February 27, 2008. They would need to comply with the following instructions.

Note:

• The visa office would not need to take any further action at this time for certain applications, which officers have terminated in accordance with the prescribed instructions given in the table above

The Process for Establishing that the Authorities Have Made a Decision as to Whether the Applicant Meets the Selection Criteria

The authorities would need to take certain actions. These actions would help officers to determine whether the authorities reached a decision regarding the applicant meeting all the selection criteria.

Therefore, if the authorities take at least one of the following actions, it would denote that they made a decision about whether the applicant met the selection criteria or not. However, they would need to take these actions prior to March 29, 2012. This would denote that the applicant met the selection criteria. These actions include:

• Entering a selection decision into the processing system. This could include entering:
• “SELDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or
• “Eligibility – Passed” or “Eligibility – Failed” in the GCMS
• Stating clearly in the file notes whether the applicant met the selection criteria or not, without entering the selection decision into the processing system
• Re-opening the file for a redetermination, after the authorities had made a negative decision previously, based on:
• Orders received from a Superior Court (including the Federal Court) or,
• A settlement agreement entered into by way of a court order made prior to March 29, 2012

Similarly, officers would consider that the authorities did not make a decision about whether the applicant met selection criteria, prior to March 29, 2012. They would base this decision on certain criteria. Their decision would apply if they find that any of the following situations applied as of March 29, 2012:

• Not entering or documenting a selection decision into the processing system, despite having conducted a preliminary review of the documentation
• Requesting for additional documentation from the applicant, which has not arrived as yet or if a selection interview is still pending or,
• Not entering or documenting a selection decision into the processing system, despite receiving additional documents that could have helped the authorities make a selection decision
• An example of this instance could be the receipt of an Arranged Employment Opinion (AEO) or a response to an officer’s request for additional information, prior to March 29, 2012

The Process for Establishing that the Authorities Have Made a Final Decision

Officers would consider that the authorities have made a final decision, if the authorities:

• Enter a decision in the processing system as:
• “FINDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or
• “Final  – Approved” or “Final – Refused” in the GCMS OR,
• State clearly in the file notes that the final decision has been rendered, but the decision has not been entered in the processing system

The Process of Returning the Fees Paid to Citizenship and Immigration Canada (CIC)

The authorities have formulated the process for returning the fees paid to CIC. The amendments had resulted in the termination of the affected applications. Therefore, the authorities have centralised the process. The process for returning the fees and investments paid to CIC would take place at NHQ – Finance. They have taken this step in consultation with the visa offices.

The CIC bears the responsibility for:

• Returning the fees and investments and,
• Communicating with the affected applicants in a timely manner

The POS+ data at missions would form the basis for the amounts that the CIC refunds to various affected applicants. The NHQ – Finance would need to communicate with the affected missions in a timely manner. It would provide further instructions to the missions about the extraction of the required data. Officers would match the POS+ data with the eligible fees extracted from the GCMS or CAIPS. Eventually, the POS+ data would form the baseline data used for the objective of returning the fees to the payee.

The NHQ – Finance would need to communicate with the eligible applicants in a timely manner. It would:

• Confirm contact and payee information prior to initiating any return of fees paid to the CIC and,
• Provide the affected applicants with a reasonable time period for reverting to the NHQ – Finance

In certain situations, it is likely that the NHQ – Finance would not receive any response to any initial or follow-up communications. In such cases, officers would still terminate the applications. However, the NHQ – Finance still bears the authority for taking action at a future date. They would do so especially in those cases, where the CIC needs to return the fees to the person who paid it initially.

The CIC would issue fee returns in the appropriate currency for the country in which the person who paid them resides. For this, the CIC would use the daily exchange conversion rate in effect on the date of issuance.

Several unsuccessful applicants would have paid the Right of Permanent Residence Fee (RPRF). They would continue to be entitled to obtaining a return of that fee they paid. This is in accordance with the existing procedures.

File Retention

The authorities would need to retain the files and supporting documentations. These documents would be associated with terminated applications belonging to the:

• The federal Immigrant Investor Program (IIP)
• The federal Entrepreneur (EN) program and,
• Federal Skilled Workers (FSW)

Hence, the authorities would prioritise all the files and supporting documentation associated with all the terminated applications for repatriation to Canada. They would repatriate these documents to Canada before March 31, 2015.

The staff would package all terminated files separately from all the other files that they are repatriating to Canada. In addition, they would label the boxes bearing the terminated files with the word “Terminated”. They would also provide the estimated costs by cost item (EMLES, courier etc.). They would provide these details to the IR Mission Support. The IR Mission Support would assign these expenses with a special allocation coding. This coding would make it easier for the officers to track all the expenses associated with this exercise.

The Federal Court Challenge to Section 87.4 of the Immigration and Refugee Protection Act (IRPA)

There are certain amendments stated in Section 87.4 of the Immigration and Refugee Protection Act (IRPA). These concern the termination of Federal Skilled Workers (FSW) program applications. These amendments are subject to litigation. The result of these litigations could affect the manner in which officers terminate Federal Skilled Workers (FSW) program applications in the future.

In this scenario, the authorities would provide further information as the litigation progresses. Officers would need to contact the OMC Branch for obtaining more information on the changes outlined in this Operational Bulletin (OB).

Source: Citizenship and Immigration Canada (CIC)