Rosenberg Named Immigration Law Expert by National Magazine

The Canadian Immigrant Magazine has named Ryan Rosenberg an Immigration Law Expert and has invited him to join their panel of experts, fielding questions from the magazine's readership on a monthly basis. Visit Ryan's expert blog at: www.canadianimmigrant.ca/asktheexperts/columnist/3471

Implied Status

The summer months are an interesting time at Citizenship and Immigration Canada’s (“CIC”) case processing centre in Vegreville, Alberta. As you may know, CIC Vegreville is responsible for processing applications to extend temporary status in Canada. All work permit, study permit and visitor record extension applications are processed by this office.

An already busy office gets even busier in the summer because of a number of factors. Many foreign students in Canada extend their study permits in the summer months between semesters, while at the same time, many visitors wish to extend their status so as to enjoy what this beautiful country has to offer when it isn’t covered in six feed of snow and ice. At the same time, CIC staff, just like the rest of us, tries to take some time off over the summer. The consequence of this perfect storm is longer processing times for extension applications.

According to CIC, as of 22 June 2009, visitor extensions are taking 111 days to process, work permits are taking 108 days and study permits are taking 60 days. Notwithstanding these lengthy service times, CIC encourages applicants to file extension applications a mere 30 days prior to the expiration of their current immigration document. The natural question to follow is, what rights does an applicant have while their extension application is in process? The answer is found in current immigration regulations and a recent policy update.

Regulations 183(5), 186(u) and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) each offer solutions for visitors, workers and student respectively. The common theme between these three regulations is what is known as “implied status”. Basically if a worker, student or visitor files an application to extend their status in Canada, they may remain in Canada on the terms of the original status until a decision is made on their application to extend. That is, a worker can continue to work, a student can continue to study and a visitor can continue to visit until they get an answer on their extension application, so long as they remain in Canada.

Note that two items are absolutely imperative. First, it is a deal-breaker if the applicant does not file their extension application before their current immigration document expires. This means that the application to extend must be post-marked at least the day before a given permit expires. While I know that the CIC website says you have to file at least 30 days prior to expiration, they will accept applications postmarked as late as the day prior to expiration. The better practice is to extend as early as possible.

Second, an applicant will lose the benefits of implied status if they leave the Canada while their application is in process. Despite this requirement, if an applicant does leave the country, immigration officers at the ports of entry do have some discretionary tools to either allow an applicant to re-enter Canada as a temporary resident, pending a decision on the renewal of their application to study or work in Canada, provided they have a temporary resident visa, are visa exempt or have a multiple-entry visa. However, even if granted re-entry, an applicant may not resume work or study in Canada until their application for renewal has been granted. For those not able to resume work, they must satisfy the officer that they have sufficient funds to support themselves until their new permit is issued. Alternatively, an immigration officer at the port of entry may allow an applicant to apply for a new work or study permit at the port of entry provided they have a right to do so under law.

New LMO Standards - Have they gone to far?

With lay-offs and unemployment on the rise, businesses closing down and more and more Canadians struggling to get by, immigration policies regarding foreign workers wanting to enter the labour market have become more restrictive.

Over the recent years of unprecedented economic growth, immigration policies embodied a “get a job, get a visa” mentality. As of January 2009 those policies have shifted, taking cover from the economic storm overhead and offering shelter to Canadian job seekers.

In most cases, companies in Canada wishing to hire a foreign worker must apply to Service Canada for a Labour Market Opinion (LMO), which would ordinarily confirm whether or not the hiring of a foreign worker to fill a position would cause a positive or neutral effect on the Canadian labour market. If hiring a foreign worker would, in Service Canada’s opinion, cause a negative effect on the Canadian labour market, the application must be refused.

LMO applications incorporate a number of components designed to ensure, among other priorities, that the Canadian employer had first scoured the Canadian labour market for eligible candidates and that the wage offered to a foreign worker was reflective of local prevailing wage for the position.

When jobs were plentiful and Canadian companies were starving for qualified labour and skills, Service Canada relaxed their standards as they assessed LMO applications and even went so far as to compile lists of occupations in high demand where the minimum LMO applications assessment standards were all but dropped. These lists were known as “regional occupations under pressure” lists and were an employer’s ticket to successful overseas recruiting. Recruiting efforts were minimal and LMO approvals from Service Canada were fast and free flowing.

Now the lists are gone and have been replaced by a set of stringent new rules.

Under the new LMO application guidelines, employers must try even harder to find local candidates before recruiting overseas, no matter what the position or how scarce local talent may be.

As a general rule, the lower the skill level required to fill a position the greater onus there will be on an employer to recruit locally. For example, employers recruiting “low-skilled” workers must, at a minimum, advertise for 14 days on the national Job Bank, conform to industry practices (whatever they may be) and a invest in a combination of advertisements in journals, national or local newspapers, community bulletins and stores, churches, employment centres, and other recognized job websites. Moreover, these efforts must be ongoing and ought to target ‘disadvantaged groups’ that face barriers to employment.

All higher skilled positions now require a minimum 14 days on the national Job Bank and depending on the position, an employer may satisfy the recruitment requirements by simply conforming to recruitment activities consistent within the given occupation.

At any level, recruitment advertisements must include the name of the business, the business address and the wages being offered.

While Service Canada’s requirements may not, on their face, appear too onerous, they can be costly to an employer already short on qualified workers. They can also expose a company’s competitive position by forcing a company to publicly disclose wages and they could disrupt business by publicizing recruitment efforts within the view of existing employees. Most concerning, under the new policies, Service Canada reserves the right, at their discretion, to require alternative or additional advertising from an employer after efforts which seem to conform to their own stated rules have been met.

Some argue that these new rules amount to overbearing protectionism and they are out of touch with the economic realities facing Canadian business. Others argue that a Canadians first and foremost policy should remain a priority. Either way the message is clear, our labour market is not what it used to be and Canadian employers have to adapt.

Skilled Worker Applications - TOASTED

For years, I have called the Federal Skilled Worker application the white bread of all immigration applications. It serves a purpose, is commonly used and offers no real benefit compared to multi-grain and high fibre applications like provincial nominees or sponsored spouses. Late in ’08 the Minister of Citizenship, Immigration and Multiculturalism issued instructions to improve the class which are as effective as toasting white bread to increase its nutritional value.

Under the Minister’s instructions, all skilled worker applications filed after February 27, 2008 will be assessed using specific guidelines, designed to prioritize applicants likely to find a job in Canada and to weed out those who are not. The estimated 800,000 Applications filed before February 27, 2008 are not captured by the new policies and will remain languishing at visa posts until processed.

As instructed, three different filters will be used to determine the likelihood of an applicant to find work and settle in Canada. The first is an occupation list issued by the Minister, the second is the existence of arranged employment and the third is an examination of an applicant’s status in Canada.

Obtaining 67 points on a skilled worker assessment is no longer good enough; an applicant must now also pass through one of these three filters. If an applicant fails to satisfy the new criteria, their application will be returned, unprocessed and with a full refund.

The occupation list is a rigid compilation of what have been deemed by the Minister to be 38 high-demand occupations, ranging from financial managers to natural resource, construction, food service and medical professionals, among others. If an applicant has qualifying work experience in one of theses 38 occupations, their application will be welcomed and processed.

The real problem with this approach is that unless the Minister has a crystal ball, there is no way of knowing that designated occupations will remain in high-demand. We all know that past performance of our economy in no way guarantees future performance and one only need to look at the recent massive job loss reports in sectors where occupations were deemed by the Minister as “high-demand” to reach this conclusion. If the Minister has a crystal ball, it clearly hasn’t been working very well. While the Minster can amend or adjust the occupation list at any time, one has to wonder how effective that approach will be; I liken it to catching up with the past instead of preparing for the future.

The second and third criteria make a lot more sense. If an applicant has an offer of arranged employment, which is a job offer waiting for him or her upon becoming a permanent resident, than that application will be processed and prioritized. There is no sense in denying a Canadian employer an identified employee who will contribute to the success of a business. As for the third filter, if an applicant is already in Canada and settled in as a worker or student, they qualify and are probably more likely to settle and integrate with fewer complications and for the betterment of our country.

The question of the need for the Minister’s instructions has been debated for months and the controversy will continue as the policy is put into practice. At the end of the day, the tinkering with the skilled worker class only creates more uncertainty and confirms what I have been writing about for the past couple of years – if you are serious about immigration and are thinking skilled worker, think again.

Medical Examinations: Pay to Pass – A Two Tiered System

In late September of this year, Citizenship and Immigration Canada (CIC) published a new Operational Bulletin, OP063, implementing the decisions in the Supreme Court of Canada which opened the door to two-tiered medical examinations for immigrants.

While many Canadians shutter at the notion of two-tiered healthcare in Canada, that is, where a person could use either publicly funded or privately funded healthcare, many new immigrants are embracing the concept in the context of an immigration application. While I am not prepared to argue the pros or cons of two-tiered healthcare, I am eager to point out the new opportunities for would-be Canadian immigrants under the new policy directives.

Generally speaking, an applicant for immigration will be found inadmissible to Canada for the purposes of permanent residence if they fail their medical exam. Certain applicants, such as spouses or dependent children who are being sponsored by a Canadian citizen or permanent resident, refugees and other protected persons are exempted from the minimum health requirements, so long as they do not have a medical condition which would pose a threat to public health or safety. Other applicants, such as sponsored parents and grandparents, skilled workers, entrepreneurs, provincial nominees and the rest are all have to pass their medical examinations in full.

An applicant will fail a medical exam if he or she has a condition which might reasonably be expected to cause excessive demand on health or social services. Excessive demand, as you would imagine, is all about money. Generally, CIC sets a dollar amount each year which forms the threshold for excessive demand. Typically, if an immigration applicant has a condition which would have a treatment and/or care cost more than the set amount over a five year period (in most cases), that applicant will be found inadmissible. In 2007, the excessive demand threshold was set at $4,806 per year ($24,030 over a five year period); a new figure is scheduled to be released on December 1, 2008.

Before the Supreme Court of Canada decision in Hillewitz and de Jong, and the subsequent implementation of OP063, the excessive demand threshold applied equally to all immigrant applicants who were not exempted, even those who said that they had no intention of receiving public money for social services after arriving in Canada.

Under the new guidelines, immigration officers must consider all evidence presented by an applicant, before making a decision of inadmissibility due to excessive demand. Evidence regarding both ability and intent to mitigate the cost of social services in Canada must be considered, if presented. All applicants are entitled to an assessment of the probable demand their disability or impairment might place on social services. An applicant may provide evidence of ability and intent to reduce the cost impact on Canadian social services, and this would have to be considered in making a decision. These principles apply to all categories of applications, including sponsorship of parents.

Basically, if an applicant can assemble and justify a financial plan to cover the cost of social services which would be required by that applicant or his accompanying family once in Canada, an immigration officer may make a finding that an applicant is not inadmissible, despite the existence of a specific condition requiring care that would ordinarily exceed the excessive demand threshold. Such a financial plan would usually take the form of a statutory declaration of ability and intent to cover the costs of social services and will be supplemented by a detailed credible plan, financial documents and commitment letters from those involved in providing the care for the applicant, as needed.

To be clear, OP063 does not allow an applicant to pay for health services, rather only social services; it does not open the door to private healthcare. It does however create two-tiered medical admissibility testing – one for those who can afford and another tier for those who cannot.

Canadian Experience Class: Are You Experienced?

On September 17, 2008 Citizenship and Immigration Canada (“CIC”) finally opened the door to permanent resident applications under the much anticipated Canadian Experience Class (“CEC”). Application forms instructional manuals and more information can be found on the Citizenship and Immigration Canada website.

The CEC is designed to facilitate immigration applications for foreign nationals who have experience in Canada and is divided into two separate streams. The first is temporary foreign workers stream and the second is post-graduation stream.

To qualify under the Foreign Workers stream, applicants must have completed at least 24 months of legal work experience in Canada within the 36 month period prior to application at the national occupation classification skill levels of O, A or B. These three levels represent employment in management occupations (O), occupations that usually require university education (B), and occupations that usually require a college education or apprenticeship training (C).

To qualify under the post-graduation stream, applicants must have successfully when a completed at least two years of legal full-time study in Canada at a publicly funded institution, and institution authorized to grant degrees under statute, a training institute, or a provincially accredited private college. The applicant must obtain a bachelor degree, diploma, apprenticeship or postgraduate degree. In addition to having completed studies in Canada, and applicant must have completed at least 12 months of legal full-time employment within a 24 month period at national occupation classification skill levels O, A or B.

Both streams require an applicant to obtain a language testing score suitable to the national occupation classification skill level in which employment experience the claim. For example, Applicants who claim at work experience at the O or A skill levels and are tested in English, must achieve an aggregate International English Language Testing System (“IELTS”) score of 28 with no more than one individual area score of 6 and applicants at B skill level must achieve an aggregate IELTS score of 20, with no more than one individual area score of 4. IELTS tests four language areas including speaking, listening, reading and writing. Under limited circumstances applicants may be exempt from taking a language test in English or French is their first language.

Applicants must qualify at the time of application which means that you cannot complete your studies or your work experience while the application is in process.

This CEC is designed for easy and quick evaluation by immigration officers as compared to other applications streams currently in use in that the criteria are clearly defined and assessments is rated on a pass or fail to score. Unlike the federal skilled worker program there are no units of assessment or points and there is no room for discretion. And like all other immigration applications an applicant must not be found inadmissible to Canada on grounds such as health, security or contravention of Canada's immigration laws.

There is no obligation to remain in Canada at the time of application and if an applicant leaves Canada for filing the application he or she may file the application at the Visa office serves his or her area. Applicants from within Canada can submit their applications to the Canadian Consulate General in Buffalo, New York.

Despite the apparent simplicity of this new class of applications, the devil is in the details. There are a number of situations where you work experience were studies will not qualify under the program in a careful review of the regulations and assessment of an applicant’s credentials must be completed before submitting an application. Moreover, as a new type of application you can expect immigration officers around the world to struggle through somewhat of a training period before we see the true benefits of this new class.

Spousal Sponsorships - OVERSEAS

Without fail, at least twice a week and if not more, I get an anxious call or email from a client that goes something like this, “I have a great job, a loving family, strong friendships and my whole life ahead of me in Canada, and I just got married to a wonderful person who is resident in and a citizen of another country. It pains my heart that we aren’t living together in Canada, what do I do?”

The answer, 9 times out of 10 is to file a sponsorship application. There are a number of approaches that people can take when deciding how, where and when to sponsor a spouse’s immigration application. Generally, there are two options, applying from within Canada or applying outside of Canada. Last month I wrote on the in-Canada approach. This month I have written on the overseas application process.

The overseas application process differs from the in-Canada option in a number of key ways. This process is a two part application, comprised of the sponsor’s application to sponsor their spouse and the sponsored spouse’s or Applicant’s immigration application.

Both parts of this application are submitted to the Citizenship and Immigration Canada (“CIC”) processing centre in Mississauga, Ontario. At that office, the sponsorship portion of the application will be assessed and once processed and hopefully approved, the immigration portion of the application will then be sent to the visa office outside of Canada that is responsible for processing applications from either the Applicant’s country of citizenship or the country for which the applicant has lawful status valid for at least one year. The applicant has the choice of electing where the application is processed if he or she is not resident in their country of nationality at the time of application.

The visa office will then assess the applicant’s admissibility (health, criminality, previous contraventions of Canada’s immigration laws, etc.) and the legitimacy of the marriage between the sponsor and the applicant.

Currently, the CIC office in Mississauga is taking approximately 40 days to process the sponsorship portion of these applications and visa posts are taking anywhere from 3 to 17 months to process the immigration portion. The international average for processing the immigration portion is 4 to 8 months.

Like the in-Canada process, it is the applicant and sponsor’s responsibilities to ensure that they have submitted sufficient evidence so as to make it easy for the assessing visa officer to determine that the relationship is genuine and was not entered into just so the applicant can immigrate to Canada. If necessary, the officer may request an interview, which will take place at the visa office.

While the application is in process the Applicant may reside in their home country or in Canada. Although there is no automatic right of entry as a visitor, student or worker during processing, if the Applicant wishes to reside in Canada during processing, there is no prohibition from applying for such status on the basis of having filed a sponsorship and immigration application. Basically, the applicant is free to travel, unlike the in-Canada process where the applicant and sponsor must reside together in Canada to qualify.

A good strategy is to check the CIC website as to where the quick processing times are and then elect the post that is most favourable in terms of processing times and travel convenience if an interview is called. Remember, the post elected must be the post responsible for the applicant’s country of nationality or for the country for which the applicant has lawful status for valid for at least one year.

If the applicant is already resident in Canada with lawful status, consider electing to have the application assessed in Buffalo, NY, the visa office responsible for residents in Canada, even if the applicant is not a citizen of the USA. This visa office can be favourable in comparison to other visa offices that take much longer to process cases and offers relatively close travel options to if an interview is called. An applicant will have the option of electing which Canadian consulate in the USA they wish to be interviewed at (Seattle, Detroit, New York, LA).

If the application is ultimately refused, unlike the in-Canada option, the Sponsor has the right to appeal the refusal to the Immigration Appeal Division of the Immigration and Refugee Board of Canada.

Making the right decision as two what kind of application to file when trying to re-unite spouses in Canada should not be as daunting as making the right decision as to whom you should marry, however, making the wrong choice in either instance can cause harmful consequences to all involved.

Ryan N. Rosenberg, B.A., LL.B., is a immigration lawyer with Larlee & Associates Law Corporation in Vancouver, B.C. Contact Ryan by e-mail at Ryan.Rosenberg@larlee.com or by phone at 604-681-9887.

BC Business Immigration, FAST

Since its inception, the British Columbia Provincial Nominee Program (BC PNP) has offered expedited immigration solutions for international investors wanting to immigrate to Canada and settle in BC.

BC PNP offers three compelling programs in an effort to attract more business and investment immigrants to the province. The program is currently divided into three streams – “Business Skills”, “Regional Skills” and “Strategic Projects”.

The Business Skills program is designed for people with viable business plans to establish or purchase and expand a business in the greater Vancouver and Abbotsford areas. The program requires a personal net worth of $800,000, a minimum investment of $400,000 and for the investor to hold at least 1/3 of the equity in the business. The investment must create at least three new jobs for Canadians or permanent residents and the investor must play an active role in the management of the business.

The Regional Skills program is similar to the Business Skills program, only it is designed for areas of BC outside of Greater Vancouver and Abbotsford. The program requires a personal net worth of $400,000, a minimum investment of $200,000 and the investment must create at least one new job for a Canadian or permanent resident.

The program is designed to provide investors with work permits so they may come to Canada to set up their businesses. Once operational and terms of the program have been satisfied, the BC PNP will issue a nomination certificate that will entitle the investor to expedited immigration status in Canada. If the investor fails to satisfy the program criteria within 2 years of arrival in Canada, they will not be issued a permanent resident visa and may have to leave Canada.

Under either of these programs, BC PNP has created a very interesting fast-track option. Investors now have an option to secure a nomination certificate at the front end of the process by placing a performance bond in trust with the province.

If an investor chooses the fast-track option, the province will issue the nomination certificate upon approval of the investor’s PNP application and the investor placing a performance bond in trust for $125,000. The investor is also obligated to settle in BC on a work permit (provided jointly by the BC PNP and Immigration Canada), to open a bank account in BC and to begin working on their business plan before receiving nomination. Upon satisfaction of these terms, the province will issue a nomination certificate and the investor may apply for permanent resident status. The investor may (and should) remain in Canada, with his or her family, while the application for permanent residence is in process, actively managing the business.

Under the bond option, the investor has to establish his or her business and hire employees, as required under the program, within 2 years of arriving in Canada. If these criteria are met, the investor will receive the bond back, without interest. If the investor fails to execute the business plan, the investor will forfeit the bond, but will not lose permanent resident status.

Using a provincial business program can reduce processing times of permanent resident visa applications by 3-4 years as compared to federal entrepreneur applications. The upside is tremendous and as all successful investors now, timing and security are paramount and this PNP program offers just that.

The third program, the “Strategic Projects” program, does not offer a fast track option. This program is designed for foreign corporations that want to invest at least $500,000 in BC. For every 3 jobs created, the foreign company can designate one potential immigrant staff member who can move to Canada to work in the Canadian business project.

In all, the BC PNP has demonstrated its commitment to forward thinking approaches to real-time issues. With the current criteria in place we have seen a sharp increase in business investor immigrant applications in BC helping fuel and maintain our already hot economy.

Ryan N. Rosenberg is a practicing immigration lawyer with Larlee & Associates Law Corporation in Vancouver, BC. He may be reached at Ryan.Rosenberg@larlee.com or by phone at +1-604-681-9887.