Learning Moments - Qualifying Work Experience under the Federal Skilled Worker Program
This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments" and published online http://campaign.r20.constantcontact.com/render?m=1111379240993&ca=38728a55-4635-45ff-89b3-5cbed85f9413
Hello fellow practitioners. Today's column deals with the qualifying work experience under the Federal Skilled Worker Program.
Reader's question
A client has 5 years of experience in the past 10 years under NOC 2171. He accumulated this experience in the United Stated under proper work authorization (H-1B visa). However, the experience was never accumulated in a continuous period of at least 12 straight months. There have always been breaks of several months in between a number of employment contracts. Will this experience qualify under the requirements of the Federal Skilled Worker Program?
Answer
The answer to this week's question is rather straightforward and unfortunately not what our reader is hoping to hear. The minimum work experience required under the Federal Skilled Worker Program (FSWP) must have been accumulated continuously.
This wording comes straight from section 75(2) of the Immigration and Refugee Protection Regulations, which provides as follows:
Skilled workers
(2) A foreign national is a skilled worker if
(a) within the 10 years before the date on which their application for a permanent resident visa is made, they have accumulated, over a continuous period, at least one year of full-time work experience, or the equivalent in part-time work, in the occupation identified by the foreign national in their application as their primary occupation, other than a restricted occupation, that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix;
This is confirmed in all of IRCC's policies and guidelines regarding the qualifying work experience under the FSWP. One example is the Program Delivery Instructions (PDIs) concerning "Federal skilled workers: Assessing applications against minimum requirements". The Instructions specifically provide that:[1]
The applicant must have accumulated at least one year of continuous full-time (or the equivalent in part-time) paid work experience in the occupation identified in their application for permanent residence as their primary occupation. In calculating this period of work experience, the occupation must be listed in skill type 0 (Managerial occupations), skill level A (Professional occupations) or skill level B (Technical occupations and skilled trades) of the National Occupational Classification (NOC) 2016.
Outside of this 12 month minimum, other professional experience accumulated in the last 10 years will award the candidate FSWP points (even if not accumulated continuously).
It is also worth noting that while there must be no gaps in the minimum qualifying experience, it does not need to have been accumulated as part of full-time employment. As a result, a client could accumulate the minimum experience over a 2 year period of continuous employment at 15 hours per week (to give an example).
Interestingly enough, the government decided to not restrict the qualifying work experience under the Federal Skilled Trades Program (FSTP) or the Canadian Experience Class (CEC) to continuous periods. The word continuous is absent from the definition of the FSTP or CEC "class" in the corresponding sections of the Regulations (R87.1(2) and R87.2(3)). This is also explicitly confirmed in IRCC's PDIs regarding the qualifying work experience under these programs.
The government guidelines provide that "Work experience need not be continuous under the CEC". [2]
In the case of the FSTP, the Instructions provide as follows:[3]
The applicant must have
at least two years (24 months) of full-time work experience, or the equivalent in part-time work, in the skilled trade occupation specified in their application for permanent residence. The work experience must have taken place during the five years (60 months) before the date of application [R87.2(3)(b)]. The work experience does not need to have been obtained over a continuous period. Any work experience obtained in Canada must have been authorized to count towards meeting the work experience requirement; and
As a result, our reader's client is not eligible under the FSWP. In fact, the Express Entry system should deem the client ineligible from the moment of uploading a profile.
[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/economic-classes/federal-skilled-workers/assessing-applications-against-minimum-requirements.html
[2] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/economic-classes/experience/qualifying-work-experience.html
[3] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/economic-classes/federal-skilled-trades/assessing-application-against-selection-criteria.html
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.
Twitter: @CarvajalLaw
Email: acarvajal@desloges.ca
