Fact or fiction: The use of illegal employment in provincial nominee applications

January 20, 2011 Henry J. Chang, Dentons LLP Corporate Immigration, Human Resources

Earlier this month, the QMI Agency (“QMI”) reported that senior Citizenship and Immigration Canada (“CIC”) officials had said illegal work experience could count towards a permanent residence application filed under a Provincial Nominee Program (“PNP”). According to QMI, Jacqueline Desjardins, senior analyst at CIC’s national headquarters wrote the following in an e-mail, “We can count illegal work [in Canada] for PNP, but at the same time we need to have a confirmation of the illegal work.” Desjardins’ statement that illegal work could count towards a full immigration application apparently came in response to an e-mail query circulated around the immigration department.

Could this really be true? Soon after the QMI story was released, the Toronto Sun reported that Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, had “overruled” Ms. Dejardins. Kenny’s spokesperson said, “We were outraged to hear that illegal work experience could count in favour of an applicant for permanent residency.” Even NDP immigration critic Olivia Chow chimed in and said that she didn’t know what officials were thinking in approving illegal work experience.

But what really was CIC’s policy? Did the Federal government previously allow the use of illegal employment in Canada to support permanent residence applications filed under the PNP program and did it later pull back from this position due to negative public opinion? It is more likely that Ms. Desjardin’s initial statement was just incorrect. So Minister Kenny did not actually “overrule” her; it is probably more accurate to say that he simply corrected an erroneous statement.

According Subsection 41(a) of the Immigration and Refugee Protection Act (“IRPA”), a foreign national, who through an act or omission which contravenes, directly or indirectly, any provision of IRPA is inadmissible to Canada. Illegal employment in Canada by a foreign national contravenes IRPA and therefore results in inadmissibility. In many cases, foreign nationals who work illegally in Canada will also violate other laws, such as income tax laws, which may result in additional inadmissibility.

Of course, this does not mean that illegal employment that took place outside of Canada cannot be counted in a PNP application. Each province sets its own criteria for eligibility and, while these criteria cannot contradict IRPA, PNPs have the discretion to recognize work experience gained illegally outside Canada.

For example, the website of Opportunities Ontario (Ontario’s PNP program), states only that for work experience obtained in Canada, it will accept full-time work experience that is verifiable, relevant, paid and obtained with proper work authorization from Citizenship and Immigration Canada. It does not require employment experience obtained in a different country to have been acquired in accordance with a work authorization from that country’s immigration authorities.

Henry J. Chang
Blaney McMurtry LLP

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Henry J. Chang, Dentons LLP

Corporate immigration lawyer at Dentons LLP

Henry J. Chang is a partner in the firm’s Employment and Labor Group. He currently practices in the areas of Canadian and United States business immigration law, international business law, and cannabis law. Read more