Operational Bulletin 442 - June 29, 2012
Cessation of Processing and Return of Fees for Certain Federal Skilled Worker Applications
Summary
Processing of certain applications made under the Federal Skilled Worker (FSW) program prior to February 27, 2008, is to cease effective June 29, 2012, and fees paid to Citizenship and Immigration Canada (CIC) in respect of the affected applications are to be returned to the person who paid them as required by law.
Issue
This Operational Bulletin (OB) provides guidance on steps to be taken to terminate certain FSW applications made prior to February 27, 2008, as per amendments to the Immigration and Refugee Protection Act (IRPA) that were enacted as part of the Jobs, Growth and Long-term Prosperity Act and come into force on June 29, 2012.
Background
The Jobs, Growth and Long-term Prosperity Act eliminates the majority of the backlog in the FSW program by terminating applications and returning fees paid to CIC by certain FSW applicants who applied prior to February 27, 2008. The requirement to terminate certain FSW applications takes legal effect upon the coming into force of relevant provisions of the Jobs, Growth and Long-term Prosperity Act on June 29, 2012.
An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008, is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.
Processing Instructions
Visa offices are to cease processing of FSW applications made prior to February 27, 2008, in accordance with the following instructions:
If the officer… and Then…
has not established whether the applicant meets the selection criteria prior to March 29, 2012
the application is terminated; and
fees paid to CIC are to be returned to the person who paid them.
has established whether the applicant meets the selection criteria prior to March 29, 2012 the application has not been finalized before June 29, 2012…
processing of the application continues to a final decision; and
fees paid to CIC will not be returned to the person who paid them.
established whether the applicant meets the selection criteria on or after March 29, 2012 the application has not been finalized before June 29, 2012…
the application is terminated; and
fees paid to CIC are to be returned to the person who paid them.
established whether the applicant meets the selection criteria on or after March 29, 2012 the application has been finalized before June 29, 2012…
the final decision on the application stands;
processing continues to visa issuance or refusal; and
fees paid to CIC will not be returned to the person who paid them.
Note: No further action is required at this time on the part of visa offices for those applications that are terminated in accordance with the above instructions.
Establishing that a decision has been made as to whether the applicant meets selection criteria
A decision as to whether the applicant meets selection criteria was made if, prior to March 29, 2012, at least one of the following actions was taken:
a selection decision was entered into the processing system (“SELDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or “Eligibility – Passed” / “Eligibility – Failed” in the Global Case Management System (GCMS));
the file notes clearly state that the selection criteria have or have not been met, but a selection decision has not yet been entered into the processing system;
a negative decision had previously been made, but the file had been re-opened for a redetermination further to an order by a Superior Court (which includes the Federal Court) or a settlement agreement entered into by way of a Court order made prior to March 29, 2012.
A decision as to whether the applicant met selection criteria was not made prior to March 29, 2012, if any of the following situations applied as of that date:
a preliminary review of the documentation has taken place, but a selection decision has not been entered into the processing system or documented as described above;
additional documentation had been requested from the applicant but has not been received, or a selection interview is pending;
additional documents were received that could have served to make a selection decision, but the selection decision has not been entered in the processing system or documented as described above. For instance, receipt of an Arranged Employment Opinion (AEO) or a response to an officer’s request for additional information prior to March 29, 2012.
Establishing that a final decision has been made
In establishing that final decision has been made on an application, at least one of the following actions must have been taken:
a final decision was entered into the processing system (“FINDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or “Final – Approved” / “Final – Refused” in the Global Case Management System (GCMS));
the file notes clearly state that a final decision has been rendered, but the decision has not yet been entered into the processing system.
Returning fees paid to CIC
The. process of returning fees paid to CIC in concert with the termination of affected applications will be centralized at NHQ – Finance in consultation with visa offices as required.
Fee returns and communications with affected applicants will be initiated by CIC in due course.
The basis for the amounts to be refunded will be the POS+ data at missions. NHQ – Finance will communicate with affected missions in due course to provide further instructions on the extraction of required data. The POS+ data will subsequently be matched with the eligible cases extracted from CAIPS/GCMS and will form the baseline data for the purpose of returning fees to the payee.
NHQ – Finance will communicate with eligible applicants in due course to confirm contact and payee information prior to initiating any return of fees paid to CIC, and will allow a reasonable period of time for applicants to respond. In cases where no response to any initial and any follow-up communications is received, applications are still terminated, but action may still be taken at a future date to return fees to the person who paid them.
Fee returns will be issued in the appropriate currency for the country in which the person who paid them resides, using the daily exchange conversion rate in effect on the date of issuance.
Unsuccessful applicants who had paid the Right of Permanent Residence Fee (RPRF) will continue to be entitled to a return of that fee in accordance with existing procedures.
File retention
The files and supporting documentation associated with terminated applications will be retained for a period of at least two years from the last point of administrative use, in accordance with current information management practices and retention requirements.
The last point of administrative use will generally be considered to be the date on which fees paid to CIC are returned to the applicant.
Federal Court challenge to section 87.4 of IRPA
The amendments contained in section 87.4 of the IRPA terminating FSW applications are subject to litigation. The result of that litigation could affect how the terminated FSW applications are handled in the future. Further information will be provided as the litigation progresses.
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