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Law and the Border: ‘Skilled worker’ label is important for immigration

We noticed two interesting announcements from the Canadian trucking industry recently. The first was that the Ontario Minister of Training, Colleges and Universities has approved an apprenticeship pro...

Daniel Joyce

Daniel Joyce

We noticed two interesting announcements from the Canadian trucking industry recently. The first was that the Ontario Minister of Training, Colleges and Universities has approved an apprenticeship program that will allow long-distance truck driving to be regarded as a skilled trade in Canada. This led to a second announcement of a Canada-Ontario agreement to develop a Provincial Nominee Program (PNP) that allows recruitment of foreign workers for certain skilled trades in which there is a demonstrated shortage of workers.

It was noted that Saskatchewan, Alberta and the Atlantic Provinces already have similar programs in place.

Industry experts say that the driver shortage problem is especially serious in Ontario, where more than 13 per cent of the drivers are over 55 years old.

As those drivers get older and retire, the shortage will only be worse. The PNP will facilitate the hiring of foreign workers from the UK and elsewhere to address that shortage.

The essential element in putting all this together appears to be the characterization of driving as a skilled trade. It appears that a minimum of a one-year apprenticeship is required to qualify as a skilled trade in Canada; the recent announcements describe the apprenticeship in terms of 12 weeks of mentoring and 40 weeks of on-the-job training, for a total of 52 weeks.

In the U.S., the concept of “skilled worker” is also important to understand the immigration laws and U.S. Department of Labour laws governing foreign workers. U.S. law imposes a two-year requirement, not one year. In order to be considered a skilled position, the entry-level job must require a minimum of two years of specific experience or training. Since truck drivers do not meet that criteria, they fall into the large, general category of unskilled workers.

The unskilled worker designation puts the employer and employee in an unfavourable position under the immigration laws. Most temporary work permits are reserved for specialty occupations or the professions, and any employer seeking an unskilled position must generally demonstrate the absence of qualified U.S. workers. The same is true for permanent employment or “green cards.”

There, the review is even more stringent, and the problem is compounded by a quota system that results in backlogs of many years, even where a shortage of U.S. workers can be demonstrated.

The skilled worker designation is important because it establishes criteria in terms of experience or training, which separates the position from positions that can be filled from the general unskilled, “blue collar” labour pool.

In the absence of the skilled worker designation, a position is considered to be open to any physically qualified applicant. That means that it is unlikely the Department of Labor will acknowledge a shortage when there are unemployed U.S. workers who meet the minimum criteria.

What about the demonstrated shortage of workers? The U.S. Department of Labor would likely respond that there is a shortage of applicants, not a shortage of workers.

Since the entry-level position is considered unskilled, with no minimum education requirement (other than perhaps high school) and no minimum requirements for training or experience, the job position is theoretically open to any physically qualified worker.

So long as there is unemployment in the U.S, the Department of Labor would take the position that there are qualified U.S. workers available for the position. In that context, the Department of Labor may view the industry as one that has trouble attracting qualified U.S. workers, but not one for which qualified U.S. workers are lacking. As a matter of public policy, it appears that the relevant U.S. government agencies would rather develop candidates from the pool of unemployed U.S. workers, than to look toward foreign workers to fill the need.

Another important factor in the equation is the role of the unions. The recent announcement in Canada was made with the support and backing of the unions, including Teamsters Canada. Such support has been lacking in the U.S., and union resistance has been a factor in U.S. policy formulations that have restricted immigration alternatives for foreign drivers.

As the U.S. transportation industry also addresses the driver shortage problem, the Canadian Provincial Nominee Programs provide an interesting model for review. However, based on the two-year requirement for skilled worker status and the historical resistance from U.S. labour unions, it is unlikely that the U.S. will follow Canada’s lead in this manner.

-Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.

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