Learning Moments - Documenting Work Experience in a PR Application
This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments".
Hello fellow practitioners. Today’s column deals with proving a client’s work experience in permanent residence applications.
I have a client who is working as a “Scheduler” at a Home Support Services Department in British Columbia, where she has been working for about 8 months. Her work permit expires in a little over 2 years. We are looking at her work experience as a Scheduler to prepare to apply for her permanent residence under Express Entry as a Canadian Experience Class applicant.
We carefully looked at her job duties as a Scheduler in her employment contract. It is difficult to find the right NOC for her position but we found NOC 1243 – Medical Administrative Assistants – to be the best match based on the contract and also what she does on her day-to-day. However, under that NOC there are 11 main duties listed and only 2 or 3 of those match the duties mentioned in the contract.
My question is what is the chance of IRCC accepting this work experience for the CEC?
It is not uncommon for client’s employment contracts to not contain any of the main duties of a position or just a few of the duties carried out by the client on a daily basis. It is also not uncommon for initial contracts to be inconsistent with what the client’s title, duties, pay, or benefits are at the time of a permanent residence application. In some cases, initial contracts may not even exist.
This is not a deal breaker for an immigration application. At the end of the day, what is important is that your client’s day-to-day duties reflect the National Occupational Classification (NOC) that you have chosen and that you are able to evidence this experience with a letter from the employer.
As per the wording of the Immigration and Refugee Protection Regulations (IRPR), the letter from the employer, and more specifically the actions described in it, must match “the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification”, as well as a “substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties”.
There is no requirement that an employment contract match the lead statement and substantive duties of the NOC. It could be a document that simply sets down the conditions of employment, or the fact that someone is being employed. In that case, as long as there is a separate letter confirming that the employment matches the declared NOC and meeting all other requirements set by IRCC for the letter, you can include that confirmation in addition to the contract.
Moreover, it is not mandatory to include an original employment contract as evidence of an application under the Canada Experience Class (CEC), Federal Skilled Worker, or similar programs. Contracts are useful and should be included when they help and it is practical to include them (e.g. have them translated). On the other hand, if a contract is unhelpful, it can be left out.
In our practice, we have encountered situations whereby a client’s original contract is inconsistent with the NOC of the job that the client held with that employer, or is otherwise inconsistent with the conditions of employment that the client had during the relevant period. In those cases, we often decide to exclude the contract from the evidence included with the application, if we find that it is not probative of the client’s work experience.
Our recommendation to our reader in this case is that they should not fixate on the contract of employment but rather the day-to-day duties of the client. If the duties are consistent with NOC 1243, then obtain a letter from the employer that confirms that. If the contract is missing many of the duties of this NOC, but is not inconsistent with the occupational category, then include it in the CEC application. If the contract is inconsistent with what the client does, then you could consider excluding it from the supporting documents.
We do want to be clear that our advice should not be misinterpreted as obtaining a letter confirming something that does not reflect what the client actually does for the employer. If the contract reflects what the client actually does, but the client wants to claim that they do something else, you cannot allow this. They should not be obtaining a letter of employment that is inconsistent with what they do, as this would involve a misrepresentation.
It is also worth nothing that immigration practitioners should never accept a contract that was retroactively prepared or signed to evidence a position. If a contract was not created when the client was hired (or promoted), we should not accept clients preparing them now in order to have an additional document that “proves” their work experience. While it is not uncommon for clients and employers to offer to do this, we need to always insist that it is fraudulent and unethical. There is nothing wrong with documenting the work experience without a contract.
 See, for example, IRPR ss. 75(2) and 87.1(2).
Andrew Carvajal is a Toronto lawyer, partner and Head of Economic Immigration at Desloges Law Group. He specializes in corporate immigration, temporary permits and all types of permanent residence applications for professionals and entrepreneurs.