Rosenberg on Immigration

Proposed Changes to Regulations Regarding Temporary Foreign Workers

2009-10-15T12:18:00.000-07:00

The Minister responsible for Citizenship, Immigration, and Multiculturalism recently announced proposed changes to the Immigration and Refugee Protection Regulations which will affect temporary foreign workers.

The proposed changes include the following:

setting out assessment criteria for the genuineness of the job offer:

whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
whether the offer is consistent with the reasonable needs of the employer;
whether the terms of the offer are terms that the employer is reasonably able to fulfil; and
the past compliance of the employer, or any person who recruited the foreign worker for the employer, with the federal or provincial laws that regulate employment and recruitment;

limiting the cumulative time a temporary foreign worker may work in Canada to four years, after which the worker will not be authorized to work in Canada for a period of six years (unless the foreign national intends to perform work pursuant to an international agreement or work that would create significant benefits);
prohibiting employers from hiring temporary foreign workers if the employers have, in the two-year period preceding the offer, provided wages or working conditions or employed a foreign national in an occupation significantly different from the wages or working condition or occupation offered to the foreign national; and
establishing a publicized list of employers who are not eligible to hire temporary foreign workers for a two-year period.

These proposed changes are meant to protect temporary foreign workers from exploitation, promote employer compliance with the terms of job offers, and to emphasize that the Temporary Foreign Worker Program is intended to fill short-term labour shortages only.

Managing Permanent Resident Status: The Family Connection Option

2009-10-06T11:07:00.000-07:00

Last month I wrote about, the Employment Option, how employment outside of Canada can help a permanent resident of Canada satisfy residency obligation. The response has been tremendous and the one question that was common to almost all of the inquiries I received from the article was, “Can’t I maintain my residency status if I am married to a Canadian, even if we live outside of Canada?” The answer in short is yes, but it isn’t quite that easy.

Before I get into what I call the Family Connection Option, a quick refresher on the residency obligation rules is in order. Section 28 of the Immigration and Refugee Protection Act, requires a permanent resident of Canada to satisfy with the “residency obligation” on an ongoing basis by complying with one or more residency obligation “options” for 730 days in every five year period. The starting point is that if you physically reside in Canada for 730 days in every five year period, that is, your feet are on Canadian soil (the “Residence Option”), you will satisfy the obligation and maintain status as a permanent resident. If you can’t satisfy the Residence Option and want to maintain PR status, you will have to rely on either the Employment Option, the Family Connection Option or humanitarian and compassionate grounds.

Next to the Residence Option, the Family Connection Option is by far the most reliable mechanism by which a permanent resident of Canada can satisfy the residency obligation. It is worth clarifying at this point that each PR who is the member of a family must satisfy the residency obligation independently. There are no “family applications” for PR card renewals nor does an entire family lose their PR status only because a single member of that family loses their status.

The Family Connection Option provides that a PR can count every day spent outside of Canada (feet not on Canadian soil), accompanying a Canadian citizen who is their spouse (common-law or married) towards the 730 day obligation. In the case of children, if a PR child can count every day outside of Canada accompanying a Canadian citizen who is their parent in the same manner. By “accompanying”, I mean residing with under the same roof outside of Canada and by “child” I mean a person who has never been married or in a common-law relationship and is under 22 years of age.

The Family Connection Option also extends to children and spouses of permanent residents who accompany their parent or spouse outside of Canada, so long as that parent or spouse complies with the Employment Option. Basically, if a PR lives and works outside of Canada satisfying the Employment Option, that PR’s spouse and children can count the days spent residing with that permanent resident outside of Canada towards their own residency obligations.

As with all dealings with Citizenship and Immigration Canada, it is incumbent on a PR to prove their case, that is, to satisfy CIC that they have met the residency obligation, whether it is by the Family Connection Option or any other option. I strongly encourage PRs to keep a folder with detailed records of their compliance with the residency obligation. Although there is no definitive list of required documents to include, I generally advise people to keep marriage licenses, birth certificates, school records, boarding passes, copies of old passports, home rental agreements, credit card and bank statements, proof of cohabitation, lots of photographs of time spent with family outside of Canada and proof of a spouse or parent’s employment outside of Canada if that is the means by which a person hopes to satisfy the residency obligation.

Compliance with the residency obligation on the whole is carefully scrutinized by CIC. As such, PRs are strongly encouraged to seek qualified advice prior to planting their feet in non-Canadian soil for any extended period of time.

Managing Your Canadian Resident Status: The Employment Option

2009-08-31T11:23:00.001-07:00

In what I have always seen as an ironic twist, the first question often asked by many of my newly immigrated clients is, “how do I go back to my home country but keep my Canadian PR status?”

Section 28 of the Immigration and Refugee Protection Act, requires a permanent resident of Canada to comply with the “residency obligation” on an ongoing basis, so long as that person wishes to retain their permanent resident status. The basic rule is that the residency obligation can be satisfied as long as a permanent resident complies with at least one (or a combination of two or more) residency obligation “option” for 730 days in every five year period. The options range from physical presence in Canada to accompanying a Canadian citizen spouse outside of Canada and humanitarian and compassionate grounds as a last resort.

The option getting the most attention these days is the employment option. If a permanent resident accepts is employed on a full-time basis by a Canadian business and that employment requires the permanent resident to spend time outside of Canada’s borders, those days spent employed under such conditions will count towards the 730 day residency requirement. Sound simple? It isn’t.

The first challenge is determining whether or not the Canadian employer meets the definition of “Canadian business.” A Canadian business is defined three different ways. First, a business is a Canadian business if it incorporated in Canada and has an ongoing operation in Canada. If it isn’t incorporated in Canada, the business can be some other form of enterprise (a partnership, for example), that has an ongoing operation in Canada, is capable of generating revenue in anticipation of earning a profit, and where the majority of the controlling parties of the enterprise are either Canadian citizens, permanent residents or a business that meets the definition of “Canadian business”. The third alternative is an organization created by the laws of Canada or a province. This third group is designed to cover off public sector employees.

Organizations or companies which are set up for the primary purpose of allowing a permanent resident to comply with the residency obligation are excluded from the definition of “Canadian business”.

The second challenge is determining whether the employment satisfies the definition of “employed on a full-time basis by a Canadian business.” To satisfy this requirement a permanent resident must be an employee of a Canadian business or under contract to provide services to a Canadian business for at least 37.5 hours per week (to be safe as full time is not clearly defined in the regulations) where either the permanent resident’s position is outside of Canada working for either the Canadian business directly, an enterprise affiliated with the Canadian business or a client of the Canadian business.

If a permanent resident is certain that his or her employment outside of Canada will satisfy these definitions, that person’s spouse and/or dependent children who are permanent residents and will also get credit towards the 730 day residency obligation for every day that they are accompany the permanent resident outside of Canada.

The third challenge is proving compliance. I strongly encourage permanent residents to keep meticulous records of their employment outside of Canada as when applying for a new permanent resident card, a permanent resident may be called upon for proof of employment. Although there is no definitive list of required documents, I generally advise people to keep pay stubs, bank records, employment contracts, documents evidencing the assignment of the permanent resident to the position outside of Canada, time sheets, tax records, correspondence with the Canadian business, e-mails, passport stamps, airline tickets (boarding passes) and any other documentation unique to their employment which could assist in the analysis.

This area of residency obligation requirement is closely scrutinized by Citizenship and Immigration Canada. As such, one is strongly encouraged to seek qualified advice prior to accepting employment overseas after becoming a permanent resident of Canada.

Rosenberg Named Immigration Law Expert by National Magazine

2009-06-24T11:40:00.001-07:00

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

2009-06-24T11:32:00.000-07:00

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?

2009-02-06T16:02:00.000-08:00

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

2009-01-12T11:38:00.000-08:00

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

2008-10-31T14:09:00.001-07:00

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?

2008-09-22T13:06:00.000-07:00

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

2008-07-03T13:18:00.000-07:00

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

2008-06-13T12:59:00.000-07:00

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.

Spousal Sponsorships - IN CANADA

2008-06-10T13:51:00.000-07:00

When it comes to falling in love to a non-Canadian resident or citizen, I constantly hear that falling in love was the easy part and getting that soul-mate to Canada was the real challenge. It shouldn’t have to be that way, but for many it is.

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. This month I will focus on the in-Canada approach. Watch for my article next month when I focus on the outside of Canada option.

To sponsor a spouse from within Canada, the basic requirements are that the spouse and sponsor live together in Canada, that the sponsored spouse has legal status in Canada and that the sponsor has filed an application to sponsor. There is a policy based exception to these basic requirements for spouses who do not have legal status in Canada. Such spouses may request an exemption from the requirement to be in status on humanitarian and compassionate grounds. The policy related to this exemption is quite detailed and not all applicants are entitled to the exemption. Check with Citizenship and Immigration Canada (CIC) or your immigration representative before relying on it.

Sponsored spouses have to fill out a variety of forms, take medical examinations, complete criminal background checks, pay processing fees and submit a pile of evidence of their relationship with the sponsor. Applications within Canada are filed at the CIC case processing centre in Vegreville, Alberta and straightforward cases currently take about 4-5 months to process. Complicated cases take longer and are referred to local CIC offices where the sponsor and spouse may be interviewed by an immigration officer.

While an application is in process, the sponsored spouse must stay in status and reside with the sponsor in Canada. As such, trips outside of Canada during processing are not usually advised. If an applicant leaves the country, even for a short vacation, and is not granted re-entry, that may have the effect of ending cohabitation between the spouses and will terminate status in Canada and therefore the spouses may fall outside of the basic requirements and the application may be refused.

If the application receives preliminarily approval, an in-Canada applicant will be entitled to apply for a work permit or study permit to bridge the gap between preliminary approval and getting an appointment to be landed as an immigrant. There is often a few month wait to get landed after preliminary approval.

A great tip is to apply for a work permit or study permit at the same time that an application is made for permanent residence (in the same envelope). That way an officer in Vegreville can issue a permit at the same time that the sponsorship application receives preliminary approval. This way, the applicant can make the most of the time between preliminary approval and landing, without having to file and wait for a permit.

If the application is refused, there is no right of appeal, so make sure you do a thorough job on your application and that you qualify under the program before investing time, money and effort into your application.

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.

Winning Your Sponsorship Appeal

2008-02-13T17:22:00.001-08:00

There are few things more disheartening then being told that your marriage is a sham – especially when it means you cannot live with your beloved in Canada.

Every year thousands of Canadian citizens and permanent residents (“PRs”) fall in love with someone from another country and those that fall hard enough will find themselves married. While some citizens and PRs will leave Canada to be with there spouse, others will embark on a bureaucratic and complicated process, mired in red tape, to sponsor their spouse’s immigration application to Canada. While many will succeed, others will fail, having their applications refused and relationships put on hold.

Spousal sponsorships can be refused for a number of reasons, including, for example, criminal records, sponsor bankruptcy, previous “issues” with Citizenship and Immigration Canada and the finding that a relationship is a fraud.

When faced with a refusal, the sponsor in Canada has the right to file an appeal at the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. In the first 9 months of 2007 nearly 6,000 appeals were filed at the IAD and nearly 10,000 appeals were pending, albeit, not all of them stemming from refused sponsorship applications. The IAD also reviews matters ranging from appeals of refused parental sponsorships to removal of permanent residents from Canada for reasons related to, criminality, failure to meet the PR residency requirement and failure to complete terms and conditions imposed on an entrepreneur.

Even still, this is quite the workload for the decision-makers (“Members”), as there are were 28 of them working nationally by the fall of 2007, suggesting a backlog of almost 350 decisions per Member and processing times to have an appeal heard at over one year.

When the stakes in play are the future of a relationship and the waiting times for appeals are less than forgiving, the importance of and IAD appeal is apparent. But wait, it gets better. If you have been refused at appeal and want to re-apply to sponsor your spouse, think again.

The legal principle of res judicata tells us that once a decision is made by the IAD, the IAD is bound by it, even if a sponsor re-applies to sponsor his or her spouse and that application is refused and then appealed to the IAD for a second time. There are exceptions to this principle, including special circumstances, such as fraud or misconduct giving rise to a breach of natural justice or the existence of decisive new evidence. The onus is on the sponsor to show that this very high threshold is met.

What all of this boils down to is that sponsorship appeals at the IAD are not to be taken lightly. You are best served by putting the time and effort into submitting your sponsorship application in the first place to avoid having to deal with this process. If you are refused and must appeal, be ready for a long and drawn out process that requires ongoing attention, careful preparation and expert presentation.

Immigration Fraud - BEWARE

2007-08-10T17:38:00.000-07:00

A number of months ago I wrote about how the future of Canada’s immigration policy will largely be based on employment opportunities in Canada. What this means is that as Canada’s labour pool shrinks, our demand for skilled workers who are job-ready increases. Now more than ever, Canadian companies must recruit foreign workers to meet labour market needs and Citizenship and Immigration Canada, provincial nominee programs and Service Canada have all reacted to address this need.

Based on the combination of a lack of skilled workers in Canada with a high level of interest from abroad to move to Canada, our country has created the perfect storm for both a successful immigration policy and in increase in immigration fraud.

Immigration fraud is not a new issue in Canada. Our immigration system has been abused over the years by immigration marriages, falsified investment documentation, hidden criminality and bogus refugee claims. However, as immigration policy slowly shifts from traditional selection criteria to an employment driven program, so to have the fraudulent activities shifted to that same area.

Abuse of our current employment related immigration programs typically occurs in one of two ways.

First, as you would expect, applicants are currently applying for provincial nomination or labour market opinions or arranged employment opinions on the basis of fake job offers. A fake job offer can mean that the company offering the position has no intention to hire the immigrant when they arrive, but is being paid to offer the job, the immigrant has produced fraudulent documents to prove his or her qualifications for the job, or companies are writing job offers to fit certain program criteria, but in fact expect the immigrant to perform a less impressive or completely different job once they arrive in Canada.

The second area of abuse of our immigration system comes in the form of immigrants paying for job offers. Most provinces have legislation that provides that a person must not request, charge or receive, directly or indirectly, from a person seeking employment a payment for employing or obtaining employment for the person seeking employment, or providing information about employers seeking employees. What this means is that paying $10,000 for a job offer for your relative overseas is illegal (this happens all the time!). Furthermore, all levels of government are aware of these problems and we can expect a higher level of monitoring and enforcement as these activities continue to swell out of control.

As with any illegal activity, the action is only as relevant as the consequence and in these cases the consequences can be severe. One possibility is that a finding of misrepresentation might be made against the potential immigrant thereby making it impossible for that person to even visit Canada (let alone immigrate) for a period of two years or even longer. If the immigrant used a forged or falsified document to commit immigration fraud a finding of serious criminality can be made as uttering a forged document is an offence under the Criminal Code of Canada. Those in Canada committing the fraud may also be subject to criminal prosecution.

As economist Thomas Friedman put it, a good immigration policy has a tall wall and a wide gate. Canada’s gate is only getting wider as our economy continues to grow and jobs are created. As there is so much opportunity for immigrants it is truly a shame that abusing our system will only cause our wall to grow taller and our gate to narrow.

Now on Facebook!

2007-06-22T13:40:00.001-07:00

http://immigratetocanada.blogspot.com/ is pleased to announce that you can now access Ryan's articles on http://www.facebook.com/. Check out Ryan's profile and be sure to join the group Canada Immigration - Tips and Trends.

Shallow Labour Pool

2007-06-12T16:12:00.002-07:00

Federal and provincial governments are tackling the issues of the labour shortage and immigration in different ways.

We all know that Canada’s, particularly British Columbia’s and Alberta’s, labour markets are suffering from a major shortage these days. In August, two major announcements were made to address this problem — one from Citizenship and Immigration Canada (CIC), the other from the British Columbia Provincial Nominee Program (B.C. PNP).

These two announcements reflect the current trend in Canadian immigration policy. The federal government is focusing on broader issues, while the provinces are doing more and more of the work to actually facilitate the entry of immigrants and workers that address real labour market shortages.

CIC announced the creation of the Temporary Foreign Worker Units (TFWU) in Vancouver and Calgary. According to CIC, the TWFUs will offer guidance to employers and human resources service providers in those two cities seeking to employ foreign workers who fall into a very limited category – that is, applicants who do not need a labour market opinion from Service Canada to support their work permit applications. This does not reflect a policy shift, but rather a re-allocation of resources. If the pilot project is successful, CIC will likely expand the program across much of Canada.

Essentially, employers and foreign workers will be able to vet applications to the TFWUs before they apply for a work permit. The TFWU will review the application and give the employer or foreign worker advice on the application. If the application is done properly, the TFWU will issue a letter to the employer or foreign worker that can then be used to apply for a work permit at an entry port into Canada. The TFWU will not issue work permits directly.

The impact from this project should be noticeable to some, but largely ineffective regarding our current provincial labour market shortages. The problem is that the TFWUs are generally designed to address intra-company transferees, whom are non-Canadian employees working in offices outside of Canada who are being transferred to their company’s offices inside of Canada (typically well-paid executives), the kind of jobs covered under trade agreements, like NAFTA, GATS and the Canada Chile Free Trade Agreement (engineers, geologists, dentists, lawyers, etc.) and those facilitated under other reciprocal arrangements. None of these agreements facilitate entry of construction workers, manufacturers or other labourers in sectors that our economy is truly in dire need.

The B.C. PNP’s announcement in August is a very positive sign of new things to come on the immigration scene. The B.C. PNP office has been given the green light to hire six new staff to deal with the ever-increasing volume of applications received by that office. Of the six new hires, four are anticipated to work on strategic occupation cases, while the other two are earmarked for business applicants. Three new staff will be hired almost immediately and the other three will join in the not-to-distant future.

The B.C. PNP has the flexibility and desire to help employers in the province hire those key employees that they need to make their businesses successful, contributing to B.C.’s bottom line. Construction workers, including various trades are typically welcomed.

The B.C. PNP is available to almost all employers facing difficulties finding qualified persons to take on good and typically decently paying jobs. Once nominated, a B.C. PNP applicant may apply for a work permit that will bridge the gap between nomination and landing as a permanent resident. Under this program, a foreign worker can typically start work within a few of months of filing an application in the PNP office.

So as the federal government offloads its responsibilities, the provinces are filling in the gaps. In many respects, this trend reflects our political landscape — national identity coupled with regional diversity. We may actually be on the right track.

Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at rnrosenberg@larlee.com or call 604-681-9887.

Sponsorship Debts

2007-06-12T16:12:00.001-07:00

Many Canadian citizens and permanent residents see sponsorships for what they are; an effective means to reunite their families in Canada. But what most sponsors don’t realize is that when they sign a sponsorship agreement they are signing more than just a ticket to Canada for a loved one, they are signing up for some serious responsibility.

When signing a sponsorship agreement, a sponsor makes four promises. The first is to provide the sponsored person and that person’s family members with all “basic requirements” for the length of the sponsorship agreement. Basic requirements include food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health, including dental care and eye care.

The second promise is to honour the sponsorship agreement, no matter what other financial obligations or other personal circumstances arise.

The third promise is that the sponsored person and his or her family will not need to apply for social assistance benefits.

The fourth promise is to promptly respond to requests for help from the sponsored person and his or her family members by giving money, buying items or providing services for their living expenses.

The promises made under a sponsorship agreement last for the term of the agreement, which can range from 3 years to 10 years, depending on the relationship between the sponsor and the sponsored person.

What is important about these promises is that they are enforceable by the government of Canada. If, for example, a sponsored immigrant goes on welfare or some other social assistance that is paid for by a provincial or federal program, the government of Canada or a provincial government can collect money from the sponsor equal to the social assistance paid to the sponsored immigrant.

If you are considering sponsorship or if you have sponsored someone be sure to know your rights as the consequences of breaking these agreements are severe.

In recent times, the British Columbia provincial government has increased its efforts to collect on sponsorship debts by taking collection actions against sponsors in default. In some cases, the provincial government is trying to collect over $100,000 from some sponsors that failed to provide “basic requirements” for the sponsored persons.

In a typical case, a sponsored person will go on welfare because they can’t find work in Canada. Welfare payments will not be refused by the province if the person otherwise qualifies, even though a sponsorship agreement is in place. Once the province recognizes the existence of a sponsorship agreement, they try to collect all of the welfare payments from the sponsor.

In some cases the provincial government registered liens against sponsors’ homes and in others they have sued. Default on a sponsorship agreement will also prevent a sponsor from ever sponsoring another person until their debt is repaid.

Sponsorship agreements are generally enforceable, but there are circumstances where they may not be. For example, if the sponsor is the victim of abuse at the hands of the sponsored person, the sponsorship agreement may not be enforceable. There are other grounds that may make a sponsorship agreement unenforceable at law; however these grounds have not been tested in the courts.

If the government is trying to collect a sponsorship debt from you as a sponsor, be sure to know your rights before you pay the government a single penny. In some cases a debt will not be collectable at all while in other cases, there will be severe consequences.

BC MSP Coverage

2007-06-12T16:11:00.000-07:00

In my practise I am increasingly finding that new immigrants, temporary workers, international students, and family class applicants already in Canada are not aware that they are, in many cases, eligible for coverage under British Columbia’s Medical Service’s Plan (“MSP”).

Basically, the rules provide that in addition to Canadian citizens and permanent residents, some persons temporarily in the province are entitled to apply for care cards.

Eligibility for coverage under MSP is available to persons who are Canadian citizens or who have been lawfully admitted to Canada for permanent residence, as long as the applicant makes his/her home in BC and is physically present in BC for at least 6 months in a calendar year. The coverage extends to persons who are “deemed residents”, and that is where students, workers and family class applicants fit in.

People on work permits or study permits in BC can be “deemed residents”. They will be eligible for MSP coverage if their visas/permits are valid for 6 months or more, if the person remains in status and makes their home in BC and is physically present in BC for at least 6 months in a calendar year.

“Deemed residents” also include non-resident spouses and children (including adopted children) of residents. These people will be eligible if they have applied for status, like work permits or study permits or visitor status, as long as that application remains active and the other requirements set out above have been met. Non-resident spouses and children of residents will also be eligible if the resident spouse has filed a sponsorship application and paid the immigration processing fees for their spouse and or children who wish to apply for MSP coverage.

Basically, those not eligible are those without status or with only visitor status without having a pending sponsorship application filed with immigration Canada.

The requirement to be physically present in BC for at least 6 months in a calendar year is subject to a number of exceptions because not everyone comes to Canada with at least 6 months left in the year. Essentially, if you arrive in Canada after June 30, the 6 month requirement is effectively waived.

Once you file an application for MSP coverage, you must wait for eligibility. The wait period for eligibility is calculated by adding the month in which the applicant arrived in BC plus two additional months. For example, if you arrived on December 25, you would be eligible on March 1. If you arrived on January 1, you would be eligible on April 1.

Some applicants are not subject to the wait period, including babies born to residents, children adopted by a resident and convention refugees.

The rules for eligibility are complicated and confusing. At times, in my experience, HIBC, the private company administering MSP, fails to understand the rules themselves. We have seen a significant decrease in the understanding and application of these rules on the part of HIBC since they received the portfolio from the province.

If you believe you are eligible, persistence may be required to get the results you deserve. Given the cost of health care in this province without MSP coverage, a little hard work is well worth the effort.

Is permanent forever? What all permanent residents need to know about their status.

2007-06-12T16:09:00.000-07:00

For those of you who haven’t figured it out yet, “permanent” resident status isn’t really permanent; rather, it is conditional. And by conditional I mean that if you don’t meet certain obligations under Canada’s immigration laws, you can lose your status and find yourself back in your country of citizenship.

All permanent residents are issued wallet-sized cards that are valid evidence of their status in Canada, usually within a few weeks of landing as immigrants. These cards ingeniously have expiry dates on them, suggesting to permanent residents that they should reapply for new cards every five years.

So what happens when your permanent resident card expires? Nothing. The expiration of the card does not mean expiration of your status. Rather, it just means that the card is no longer valid evidence of your permanent resident status. Just like an expired Canadian passport doesn’t mean you lose your citizenship, an expired permanent resident card does not mean you aren’t a permanent resident.

Still, you are urged (but definitely not required) to get a new card every five years. This five-year period generally corresponds to a section in our immigration laws that require permanent residents to be physically present in Canada 730 days in every five-year period to maintain their status.

There are all sorts of exceptions to the requirement to be physically present in Canada, including accompanying a Canadian spouse outside of Canada or working for a Canadian company outside of Canada, to name a few. Speak to a lawyer if you aren’t sure whether you’ve met the requirements or one of the exceptions.

The only way you can lose your status for failing to meet the residency requirement goes something like this: an immigration officer has to review your residence history over the previous five years upon your re-entry into Canada after a long absence or upon your application for a new permanent resident card after the expiration of a previous card. If the officer believes that you have fallen short of the 730-day requirement, that officer can look at humanitarian and compassionate reasons for allowing you to keep your status, usually involving the best interests of any children involved. If the officer still isn’t satisfied that you should keep your status, he or she will write up a report and give you an opportunity to appeal that decision at the Immigration Appeal Division. It is only after you either lose your appeal or fail to file an appeal that you lose your status.

So, really, it is entirely possible to not meet the residency requirement, but still have status. Alternately, it is possible for you to have a valid permanent resident card, but not meet the residency obligation.

If you find yourself in a situation where you are entering Canada and an immigration officer is questioning you about your residency over the past five years and you aren’t sure whether you meet the residency requirement, you should know your basic rights.

First, as a permanent resident you have the right to enter Canada. Second, an officer must allow you into Canada after establishing that you are a permanent resident of Canada. (Although it is always good to travel with the contact information for your immigration lawyer just in case you face difficulties entering Canada.)

Third, you may use your permanent resident card as evidence of your status in Canada whether or not you have met the residency requirement. You also have the right to not answer any questions about your residency over the previous five years once the officer establishes that you are a permanent resident.

Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at Ryan.Rosenberg@larlee.com, call 604-681-9887 or visit www.larlee.com.

Humanitarian and Compassionate Grounds

2007-06-12T16:07:00.000-07:00

Immigration Law

Ryan N. Rosenberg

One last chance

When all else fails, you can apply for immigration to Canada on humanitarian and compassionate grounds.

Even if you don’t qualify to immigrate under one of Canada’s immigration programs, you may still qualify. Now, before you stop reading this article because I seem to be contradicting myself, allow me to explain.

Section 25 of the Immigration and Refugee Protection Act (IRPA) allows Citizenship and Immigration Canada (CIC) to grant a foreign national permanent resident status or an exemption from any applicable criteria or obligation in IRPA based on humanitarian and compassionate (H&C) grounds.

Section 25 is most commonly used in an application for permanent residence from within Canada on H&C grounds, most often by failed refugee claimants and spouses being sponsored from within Canada. CIC even has a specific set of forms for these types of applications.

Although less common, section 25 is also sometimes used by a foreign national who is asking for an exemption from any applicable criteria or obligation in IRPA. For example, applicants who do not have enough points under the federal skilled work program, applicants who cannot be sponsored, persons who fail to meet the residency requirement or persons who fail their immigration medical examinations may request exemptions on H&C grounds. So even though the applicants don’t meet all of the normal criteria, their application still has a chance of being approved on H&C grounds.

With exception of an application for permanent residence from within Canada, there are no special application forms for an H&C request; rather it is usually made in writing along with an application filed under one of CIC’s programs.
The list of examples of where you could ask for an exemption is almost infinite, whether it is in relation to a study permit, work permit, live-in caregiver application or other situation. As long as there are specific criteria or obligations, an applicant can request an exemption from those requirements on H&C grounds.

Now, before you get too excited, asking is one thing, being granted an exemption is another. Immigration officers have discretion to decide whether an applicant’s H&C reasons are strong enough to justify an exemption. The threshold is quite high and difficult to meet in many circumstances.

CIC’s policy manuals require that H&C grounds meet a threshold of “unusual and undeserved or disproportionate hardship.” This policy was designed to allow visa officers to approve deserving cases not anticipated under IRPA.

CIC has an obligation to consider all requests and must provide reasons if they refuse an application. If the reasons are unsatisfactory, an applicant may apply for judicial review of CIC’s decision in the Federal Court of Canada.

To make a successful H&C application, it is the applicant’s responsibility to clearly explain his or her H&C grounds to CIC. To name but a few, an applicant may have unique family circumstances, health reasons, exceptional ties to a community, establishment in Canada, religious beliefs and personal risk. The list goes on and on.

The courts have reviewed countless applications on H&C grounds and have set some important precedents. So it may be in an applicant’s interest to review relevant case law before filing an application on H&C grounds.

Canada’s immigration laws are complex and the requirements can be onerous. Section 25 can be a cure to many problems, but like many medications, it doesn’t work for everyone.

Immigration Announcements - a sign of things to come

2006-08-15T11:50:00.000-07:00

We all know that Canada’s, and especially British Columbia and Alberta’s, labour markets, are suffering from a major shortage these days. In August two major announcements were made to address this problem. One announcement came from Citizenship and Immigration Canada (“CIC”), and the other from the British Columbia Provincial Nominee Program (“BC PNP”).

These two announcements reflect the current trend in Canadian Immigration Policy. The Federal government is focusing on broader issues, while the provinces doing more and more of the work to actually facilitate entry of immigrants and workers that address real labour market shortages.

CIC announced the creation of Temporary Foreign Worker Units (“TFWU”) in Vancouver and Calgary. According to CIC, the TWFU’s will offer guidance to employers and human resources service providers in those two cities seeking to employ foreign workers who are exempted from the labour market confirmation process. This does not reflect a policy shift, but rather a re-allocation of resources. If the pilot project is successful, CIC will likely expand the program across much of Canada.

Essentially, employers will be able to vet applications for work permits to the TFWU’s or get advice on what kind of application to create in advance of a foreign worker showing up at port of entry to file an application for a work permit.

The impact from this project should be noticeable to some, but largely ineffective regarding our current provincial labour market shortages. The problem is that as the TFWU’s are generally designed to address intra-company transferees (typically well paid executives), the kind of jobs covered under trade agreements, like NAFTA, GATS and the Canada Chile Free Trade Agreement (engineers, geologists, dentists, lawyers, etc.) and those facilitated under other reciprocal arrangements. None of these agreements facilitate entry of construction workers, manufacturers, or other labourers in sectors that our economy is truly in dire need.

The BC PNP’s announcement in August is a very positive sign of things to come on the immigration scene. The BC PNP office has been given the green light to hire six new staff to deal with the ever increasing volume of applications received by that office. Of the six new hires, four are anticipated to work on strategic occupation cases, while the other two are earmarked for business applicants. Three new staff will be hired almost immediately and the other three will join in the not-to-distant future.

The BC PNP has the flexibility and desire to help employers in the province hire those key employees that they need to make their businesses successful, contributing to BC’s bottom line. Construction workers, including various trades are typically welcomed.

The BC PNP is available to almost all employers facing difficulties finding qualified persons to take good and typically decently paying jobs. Once nominated a BC PNP applicant may apply for a work permit that will bridge the gap between nomination and landing as a permanent resident. Under this program a foreign worker can typically start work within a few of months of filing an application in the PNP office.

So, as the Federal government off-loads its responsibilities, the provinces are forced to fill in the gaps. In many respects this trend reflects our political landscape – national identity coupled with regional diversity. We may actually be on the right track.

Major Changes to The Federal Skilled Worker Program

2006-08-03T12:29:00.000-07:00

Last month I wrote about how the Federal Skilled Worker program lacks efficiency and how processing applications under that category just isn’t a priority for Citizenship and Immigration Canada (“CIC”) anymore. This month, they’ve proved it. Effective September 1, 2006 the Federal Skilled Worker program will change in such a way that reflects the lack of interest CIC has in the program.

Under what I will call the “old system”, applicants would file a series of forms and countless pages of supporting documentation – everything from college diplomas to reference letters, police certificates and language test results. Not anymore, not under the new system.

Under the new system, called the “Simplified Application Process” applicants are asked to file a three page application form and pay the application fee. That’s it. No supporting documentation, no degree, police clearance or references. Just the three page form and the processing fee.

By filing a Simplified Application, you are buying a spot in line. When your number is finally called, whether it is 24, 48, 60 or more months later, you will be given a number of days or months to submit all of the documentation that you would have otherwise submitted under the old system. If you try to submit all of the documentation that you would have under the old system when you file a simplified application, your supporting documentation will be returned to you.

CIC says that they are changing the process to increase efficiency and to save storage space in the visa offices. In many cases because files sit around so long before being processed, applicants have to update the forms and supporting documents anyways before a visa officer will make a decision on the file.

According to a CIC memorandum, there are over 500,000 economic class applicants waiting overseas for processing. That includes all skilled workers and business applicants. When you consider that our country typically admits somewhere in the neighbourhood of the mid 200,000’s for permanent residence in all classes, you are looking at quite the wait time for a skilled work application to be approved.

Skilled workers are prioritized behind spouses, children, PNP’s and persons with arranged employment. Factor in refugees and humanitarian and compassionate ground cases and it will be years before CIC works through the 500,000 economic class applicants in the backlog.

The new process applies to skilled workers, business applicants, entrepreneurs and self employed applicants. It does not apply to provincial nominees, immigrants destined for Quebec, applicants with points for arranged employment or applications filed in Buffalo, New York.

By changing the process, CIC is sending a very clear message – skilled workers just aren’t a priority anymore. By the time CIC process most of these files the applicants may not be interested in Canada anymore and their personal situations will have certainly changed. If you are serious about Canada, get a confirmed job offer and vet it to Service Canada or a Provincial Nominee Program and CIC will keep you out of this process and land you as an immigrant in a reasonable amount of time, otherwise, pay the fee, but don’t hold your breath.

Immigration Refunds!!

2006-06-06T10:44:00.000-07:00

The new Conservative government’s budget made quite the splash in May – the GST was cut and a series of tax credits were introduced. Barely competing for headlines with the glamour of the tax breaks was a small gift to new Canadians – a reduction in the Right of Permanent Residence Fee from $975 to $490.

This fee is payable by principal applicants (with some exceptions) and accompanying spouses and common-law partners. It must be paid before the immigrant visa is issued overseas or before the applicant becomes a permanent resident in Canada.The following applicants are not required to pay this fee:
dependent children of a principal applicant or sponsor, a child to be adopted, or an orphaned brother, sister, niece, nephew or grandchild; and
protected persons, including Convention refugees.

And for those who have already paid the fee up front, but haven’t been landed yet? You get a refund of the difference - $485!

Everyone who paid the $975 Right of Permanent Residence Fee is eligible for a refund if they have not become a permanent resident of Canada as of 12:00 a.m. EDT on May 3, 2006. Immigrants in all social, humanitarian and economic classes are entitled to a refund.
How do you claim the refund? Simple. According to Citizenship and Immigration Canada’s website, If you (or your sponsor) paid the fee in Canada, you do not have to request the refund; you will receive it by mail. CIC expects to begin issuing refunds within a few weeks and to have issued the majority of them within one year. Be sure to update your address with CIC if you have moved, so they know where to send the cheque.

If you paid the fee outside of Canada before 12:00 a.m. EDT on May 3, 2006, and you have not yet received a visa, you can request a refund from the CIC mission where you paid the fee. If you do not request a refund, you will receive one when your visa is issued.

If you paid the Right of Permanent Residence Fee outside of Canada, and you have received your visa but you have not yet become a permanent resident of Canada as of 12:00 a.m. EDT on May 3, 2006, you can request a refund by completing forms easily found of CIC’s website.
If you have not received a refund before you become a permanent resident, you will be given information on how to request one when you arrive in Canada.

The financial burden of applying and moving one’s family is difficult enough as it is. With a few extra dollars in hand, moving to Canada becomes that much easier. Many observers agree that it is about time that the fee often thought of as a cash grab by the government be returned to those who need it most.

Thinking Skilled Worker Immigration? Think Again.

2006-06-06T10:43:00.000-07:00

The point system – a foundation of the Canadian immigration system is slowly crumbling into ruin.

Most of us are familiar with this process, and many have successfully immigrated to Canada by these means. For those unfamiliar, I am talking about the “Federal Skilled Worker” immigration category. The process facilitates the grant permanent resident visas based on assessment units or “points” awarded on an applicant’s education, work experience, age, proficiency in English and French languages, and ties to Canada. The pass-mark was 75 and then lowered to 67 points a few years back.

Now however, it doesn’t seem to matter what the pass-mark is, as the category is all but dead. For those of you waiting in the queue for visas, you are in good company – approximately 800,000 applications are pending worldwide in all application categories.

So, what does this mean? Let’s do the math.

Canada used to target to accept 1% of its current population for immigration each year. With a population of approximately 30 million, that meant a target of approximately 300,000 immigrants per year, from all categories (not just skilled workers). Canada never met this target under the Liberal government, rather would fall short in the 230,000 range and the Conservative government has scraped the 1% target altogether – who knows what that means (most critics predict a lower target).

Now, let’s factor in priorities. Citizenship and Immigration Canada prioritizes family reunification cases (children and spouses only, not parents or grandparents), refugees, humanitarian and compassionate cases, and now, provincial nominees. With high demand in all of those areas, the 200,000+ spots open each year sell out faster than a Britney Spears concert. And who is left behind? Skilled workers. Even if half of the spots were reserved for skilled workers (which they aren’t) a new applicant would have to wait more than 4 years for a visa!

Skilled workers just aren’t a priority anymore. Critics routinely say that the category fails to address Canada’s current labour market needs. With an emphasis on education and high level work experience, the system fails to attract persons wanting to work in labour-starved sectors including manufacturing, tourism, construction and agriculture (to name a few).

For those of you in the skilled worker queue, you have two options if you intend to pursue your visa. First option – wait (not very appealing, is it?). Second option – find a job offer in Canada. Skilled workers with arranged employment opinions from Service Canada and with PNP nominations are shuffled to the front of the queue. Instead of waiting years, an applicant could wait as little as 6 months for landing.

The bottom line is that Canada has shifted its priorities. Canada’s immigration policy for the 21st century is clearly focused employment based immigration system, and as such, the value of a job offers has never been this high for a prospective immigrant. A good education and work experience doesn’t cut it anymore, unless you have a job offer to back it up.

JOB OFFER = VISA

2006-02-28T11:49:00.000-08:00

Get a Job, Get a Visa

While I don’t claim to be a psychic, I am confident in the following premonition: The future of immigration policy in Canada is employment driven.

Be sure that family reunification and protection of the vulnerable will always be a priority, but outside of that realm, the most efficient way to accomplish immigration goals in Canada is through employment offers. Canada is starving for skilled persons to fill labour market shortages and one only needs to open the help wanted page of the newspaper or to visit an internet job bank to reach this conclusion.
Immigration policies have developed to help address these dire economic needs. For instance, the evolution of provincial nominee programs (PNP) over the past 5 years have led to a reliable employment driven option. With a solid job offer in a sector facing a labour shortage, most provincial nominee programs will offer you expedited immigration processing. In BC, a PNP application can land you a work permit in a couple of months, so long as an employer can prove a labour market shortage for the position that they are trying to fill. In Manitoba, for example, employers can pre-approve job openings through the PNP process and then recruit for those positions overseas. The list goes on.

With a job offer in hand, the upside is tremendous. Nearly instant work permits in some circumstances and permanent resident visa processing often in less than one year. Without a job offer you could wait over two and in some cases more than 3 years for your visa. Further to this point, for every provincial nominee that a visa post processes for permanent residence, a skilled worker applicant has to wait longer.

So as a prospective immigrant, you have to be wondering how to make the most of a job offer before you accept it. The options are countless, but there are some guiding principles, no matter which route you take.

First, be sure that your job offer is legitimate as no matter which route you take, there will be at least a basic level of investigation. Second, do not take a job offer that will pay you less than Canadians are paid for the same work. Canada’s immigration policies have safeguards in place to protect immigrants from exploitation. Third, be sure that your skills are in demand. We all know that our economy needs skilled trades and information technology professionals, but we also need a whole lot more. Check with a credible labour market information source before you accept a job offer. Fourth, be sure that your employer is willing to participate in the process. Immigration applications supported by job offers require the employer’s assistance in gathering documents and providing support letters.

Your most important consideration is whether or not your job offer fits into an immigration program that meets your needs. This is where it gets complicated. Not all programs are processed with the same priority and depending on what country you are coming from, your age, your status in Canada, where you intend to reside and where you studied (not to forget your spouse’s circumstances) you may have different options available to you. For example, if you are under 30 and from a certain list of countries you may qualify for a one year open work permit (ie any employer and no job offer required before arriving in Canada).

So with a list of options longer than most all you can eat sushi menus, research your options first and you’ll be working in Canada in no time.