Rosenberg on Immigration

No More Sticker Visas for Some New Permanent Residents

2011-11-14T21:48:00.000-08:00

Elimination of Counterfoils for Approved Permanent Residence Applicants from Visa-Exempt Countries

Citizenship and Immigration Canada (CIC) will no longer issue a counterfoil to applicants approved for permanent residence from visa exempt countries. All approved applicants will continue to be issued a Confirmation of Permanent Residence (COPR) document.
Currently, all applicants approved for permanent residence, even from countries exempt from the Temporary Resident Visa requirement, are issued a counterfoil and seal in the passport that they are using for their initial travel to Canada to become a permanent resident.a

As of December 1, 2011, missions will no longer issue a counterfoil to applicants approved for permanent residence, if the “CNTRY OF ISS. OF TRAVEL DOC:” field on the COPR identifies a regular passport issued by the United States of America or a country identified in theImmigration and Refugee Protection Regulations 190(1)(a) or (b) or 190(2)(b), (c), (d) or (e).

The Canada Border Services Agency’s Border Services Officers (BSOs) and Migration Integrity Officers in Canada and abroad will be advised of this change. BSOs will continue to evaluate individuals at the Primary Inspection Line and determine which persons are immigrating to Canada and refer those new immigrants to Immigration secondary for finalization of permanent residence status. In cases where the new immigrant is not finalized at the port of entry as required, staff should advise the individual to contact the CIC Call Centre for options to correct their status in Canada. The Call Centre will continue to follow their current procedures when contacted by immigrants who require finalization of permanent residence status.

CIC is Going Paperless

2011-11-10T09:01:00.000-08:00

CIC is transformingthe way it does business. With the increasing use of technology, we are movingaway from paper application forms, and are encouraging applicants to use theelectronic forms that can be submitted online, or downloaded and printed fromour web site. Effective December 1, 2011, with a few exceptions, we will nolonger be printing or mailing paper copies of our forms and related guides.
These changes will save CIC over $4 million over the next three years incosts related to printing and mailing. The changes also reflect the fact thattechnology is making the application process easier to access. Increasingly,improved online services are allowing people to apply wherever and wheneverthey want, with online tools to help navigate the immigration process. By 2015the majority of CIC applications will be submitted and processed online.

Source: E-newsletter from Citizenship and Immigration Canada - Fall 2011

Parents and Grandparents: NOT WELCOME TO IMMIGRATE (For now)

2011-11-07T08:52:00.000-08:00

Effective November 5, 2011, a temporary pause has been placed on new Family Class sponsorship applications for parents and grandparents (FC4). Instructions are provided on what to do with FC4 sponsorship applications received before and after this date.

Issue

This Operational Bulletin (OB) provides guidance on FC4 sponsorship applications and the fourth set of Ministerial Instructions (MI-4) which come into force November 5, 2011.

Background

On June 18, 2008, the Immigration and Refugee Protection Act was amended to give the Minister of Citizenship and Immigration authority to issue instructions that would ensure the processing of applications and requests be conducted in a manner that, in the opinion of the Minister, will best support the attainment of immigration goals set by the Government of Canada.
The MI-4 comes into force on November 5, 2011 and includes changes to the following programs:

Family Class Sponsorship Applications: A temporary pause on new sponsorship applications for parents and grandparents.
Federal Skilled Worker Program: Introduction of a new PhD eligibility stream (see OB 351 for more information).

The full text of these instructions can be found at:
www.gazette.gc.ca/rp-pr/p1/2011/2011-11-05/html/notice-avis-eng.html#d108

Processing Instructions

Effective November 5, 2011, no new family class sponsorship applications for a sponsor’s parents (R117(1)(c)) or grandparents (R117(1)(d)) will be accepted for processing. This temporary pause is being implemented to allow for application backlog reduction in the FC4 category to begin in 2012. This measure is being implemented as part of a broader strategy to address the large backlog and wait times in the FC4 category, supporting the attainment of immigration goals set by the Government of Canada.
The temporary pause will remain in place for up to 24 months while a more responsive, sustainable, and long-term approach for the program is being considered.
It does not affect sponsorship applications for spouses, partners, dependent or adopted children and other eligible relatives.
Applications received on or after November 5, 2011
New FC4 Sponsorship applications for parents or grandparents received by Centralized Processing Centre- Mississauga (CPC-M) on or after November 5, 2011, will be returned to the sponsor with a letter (see Appendix A) advising them of the temporary pause. Applications which are postmarked before November 5, 2011, but are received at CPC-M on or after November 5, 2011 will also be returned to the sponsor. In both cases, processing fees shall be returned.
Applications received before November 5, 2011
Complete FC4 sponsorship applications received by CPC-M prior to close of business (5 p.m. EST) on November 4, 2011, should continue to be processed as usual. Cases where FC4 sponsorship applications have been submitted to CPC-M, but the applications for permanent residence have not yet been submitted to the visa office are not affected by the temporary pause.
Cost recovery fee payment made before November 5, 2011
In cases where an applicant has submitted their cost recovery fee payment but CPC-M has not received the FC4 sponsorship application before close of business (5 p.m. EST) on November 4, 2011, the applicant will receive a refund of the processing fees.
Humanitarian and Compassionate Requests
Requests made on the basis of Humanitarian and Compassionate grounds made from outside Canada that accompany any permanent resident application affected by Ministerial Instructions but not identified for processing under the Instructions will not be processed.
Updates to the IP 2 manual are forthcoming.
For further information outlined in this OB, please contact your supervisor or your Regional Program Advisor (RPA). RPAs may in turn contact Operational Management and Coordination Branch at OMC-GOC-Immigration@cic.gc.ca.

New PhD Eligibility Stream under the Federal Skilled Worker Program

2011-11-07T08:50:00.000-08:00

Effective November 5, 2011, the Federal Skilled Worker (FSW) program will have a new eligibility stream for international students pursuing doctoral (PhD) studies at Canadian institutions. Instructions are provided on how to proceed with applications received both before and after this date.

Issue

This Operational Bulletin (OB) provides guidance on FSW applications and the fourth set of Ministerial Instructions (MI-4) which come into force on November 5, 2011.

Background

Federal Skilled Worker Program: Introduction of the new PhD eligibility stream.
Family Class Sponsorship Applications: A temporary pause on new sponsorship applications for parents and grandparents. (see OB 350 for more information).

The full text of these instructions can be found at:
www.gazette.gc.ca/rp-pr/p1/2011/2011-11-05/html/notice-avis-eng.html#d108

Processing Instructions

Effective November 5, 2011, the FSW program will have a new eligibility stream for international students pursuing doctoral (PhD) studies at Canadian institutions.
In order to be eligible to apply under this stream, the FSW applications [Note 1] must be received by the Centralized Intake Office (CIO) in Sydney, Nova Scotia on or after November 5, 2011, and must meet either of the following two sets of criteria in order to be placed into processing:

Applications from international students who are currently enrolled in a doctoral (PhD) program, delivered by a provincially or territorially recognized private or public post-secondary educational institution located in Canada, and who have completed at least two years towards the completion of their PhD and who are in good academic standing and who are not recipients of a Government of Canada award requiring them to return to their home country to apply their knowledge and skills. [Note 2] OR
Applications from foreign nationals who have completed a doctoral (PhD) program from a provincially or territorially recognized private or public post-secondary educational institution located in Canada no more than 12 months prior to the date their application is received by the CIO in Sydney, Nova Scotia. Applicants must not have received a Government of Canada award that required them to return to their home country to apply their knowledge and skills; or if they were a recipient of such an award, that they have satisfied the terms of the award. [Note 3]

Applicants who are eligible for processing are still assessed under the other requirements of the FSW Program. Applicants must still meet minimal requirements and obtain the minimum pass mark in order to continue in processing.

Limit on the number of applications to be processed per year

A maximum of 1,000 new FSW applications from international students pursuing PhD studies or recently who obtained a PhD at a Canadian institution will be considered for processing each year. This cap will be calculated over and above any other FSW caps on application intake identified in previous Instructions.
In calculating the cap, applications will be considered in order of the date they are received. Applications received on the same date will be considered for processing having regard to routine office procedures.
For the unique purpose of calculating the cap, this cap year will begin on November 5, 2011 and end on October 31, 2012. Subsequent cap years will begin on November 1^st and end on October 31^st, unless otherwise indicated in a future Ministerial Instruction.
FSW applications received at the CIO before November 5, 2011
MI-4 does not apply to complete applications received prior to November 5, 2011. All FSW applications received by the CIO prior to this date shall continue to be considered for processing having regard to the requirements in effect at that time.
FSW applications received at the CIO on or after November 5, 2011
The MI-4 applies to applications received at the CIO on or after November 5, 2011. The CIO will assess complete applications received on or after this date against the MIs to determine whether applicants are eligible for processing. The CIO will make a final eligibility determination and those determined to be eligible will be placed into processing. Applications that receive a negative eligibility determination will not be processed and will receive a full refund of the processing fee. The application and documentation submitted will not be returned.
Submitting the application
All FSW applications, including those under the PhD stream, will continue to be sent to the CIO. Applicants are required to submit their complete application, together with all supporting documents, to the CIO as listed on the CIO document checklist.
The CIO will review applications for completeness and if the application is incomplete, the entire application package will be returned to the applicant.
Final eligibility determination at the CIO
The CIO will assess the applicant’s submission based on the documentation submitted and make a final determination of eligibility. To be eligible for processing, the applicant must meet all the criteria described in the MIs. If the applicant’s submission is determined to be ineligible for processing, the applicant will be informed and will receive a refund. The application and documentation submitted will not be returned. If the CIO makes a positive eligibility determination, the application will be placed into processing and the applicant will no longer be eligible for a refund.
Humanitarian and Compassionate requests
Requests made on the basis of Humanitarian and Compassionate grounds made from outside Canada that accompany any permanent resident application affected by MIs but not identified for processing under the Instructions will not be processed.
Updates to the OP 6 manual are forthcoming.
For further information outlined in this OB, please contact your supervisor or your Regional Program Advisor (RPA). RPAs may in turn contact Operational Management and Coordination Branch at OMC-GOC-Immigration@cic.gc.ca.

Footnotes

[1] In order to be considered, applications must be completed according to the application kit requirements in place at the time the application is received by the designated office. [back to note 1]

[2] Applicants will be required to include, in their application package, a letter of attestation from the recognized provincial or territorial post-secondary education institution where they are pursuing their PhD. The letter shall contain the following attestations:

that the applicant is currently enrolled in a PhD program and has completed at least two years towards its completion; and
that the applicant is deemed in good academic standing to the satisfaction of the institution.

The letter of attestation should be an official letter, on university letterhead, signed by a recognized institutional authority such as the registrar or dean of Graduate Studies that clearly addresses the above-noted two components.
Applicants will also be required to declare that they are not a recipient of a Government of Canada award requiring them to return to their home country to apply their knowledge and skills, by completing the appropriate section in schedule 3. [back to note 2]

[3] Applicants will be required to include, in their application package, official transcripts supplied by the recognized provincial or territorial post-secondary education institution where they completed their PhD, showing the awarding of a PhD.

Applicants will also be required to declare that they were not a recipient of a Government of Canada award requiring them to return to their home country to apply their knowledge and skills; or if they were a recipient of such an award, that they have satisfied the terms of the award, by completing the appropriate section in schedule 3. [back to note 3]

CIC Intake Statistics: Big Time Decline in Intake

2011-10-20T13:49:00.000-07:00

Business Line - Applications Received for Permanent Residents (in Persons)
	CALENDAR YEAR					YEAR TO DATE
	2006	2007	2008	2009	2010	(Jan-Jun)	(Jan-Jun)	% Change
Federal Skilled Workers	208,701	213,745	189,636	148,073	142,067	122,072	23,913	-80%
Quebec Selected Skilled Workers	30,654	33,460	34,612	38,463	37,495	18,021	12,505	-31%
Federal Business Immigrants	12,720	15,096	23,256	32,367	40,675	37,833	3,156	-92%
Quebec Business Immigrants	4,739	6,029	5,987	5,951	9,067	4,907	2,469	-50%
Provincial/Territorial Nominees	18,695	24,688	38,104	38,533	52,163	29,379	10,233	-65%
Live-in Caregivers	9,030	13,036	18,167	20,652	12,418	6,947	678	-90%
Canadian Experience Class	0	0	1,077	7,320	7,750	4,034	201	-95%
Economic Class	284,539	306,054	310,839	291,359	301,635	223,193	53,155	-76%
Spouses, Partners, Children and Others	69,567	72,431	67,982	64,204	57,835	30,571	25,530	-16%
Parents and Grandparents	18,990	32,606	29,777	16,121	17,202	10,138	3,665	-64%
Family Class	88,557	105,037	97,759	80,325	75,037	40,709	29,195	-28%
Government Assisted Refugees	11,305	11,788	10,735	11,095	8,021	4,392	3,752	-15%
Privately Sponsored Refugees	8,425	9,108	10,820	10,258	11,714	6,379	1,935	-70%
Protected Persons in Canada	11,144	6,751	7,387	11,844	13,284	6,748	2,742	-59%
Dependants Abroad	4,985	5,497	3,124	4,502	4,173	2,217	1,840	-17%
H&C and Public Policy	15,174	13,764	11,976	11,879	10,134	5,815	667	-89%
Permit Holders	114	137	206	160	118	53	11	-79%
Humanitarian Class	51,147	47,045	44,248	49,738	47,444	25,604	10,947	-57%
Other*	22	39	28	20	166	55	25	-55%
Total	424,265	458,175	452,874	421,442	424,282	289,561	93,322	-68%
Source: CIC Operational Databases, 2nd Quarter 2011
* Other includes: deferred removal orders, post-determination refugee claimants, missing and/or invalid data

Changes to the BC PNP Business Programs

2011-10-14T09:16:00.000-07:00

The provincial government is taking steps to further encourage businessimmigrants to invest in communities in regional B.C. through the BC ProvincialNominee Program.

Thisis one of a series of steps as part of a commitment in ‘Canada Starts Here -The BC Jobs Plan’ to attract more entrepreneurs from other countries to helpcreate jobs regionally.

TheBC Provincial Nominee Program (BC PNP) provides accelerated permanent residentstatus to entrepreneurs and qualified workers based on labour market and economicdevelopment priorities.

Amongthe changes, a new online investment matching service will link potentialbusiness immigrants to business opportunities in regions, with a focus on smallbusiness succession, an area of concern identified by the small businesssector. In some cases, small business owners in smaller rural communities arefacing challenges in finding people to buy their companies when they are readyto retire. The service is scheduled to launch in November.

Othersteps being taken to promote investment and meet labour market demand include:

Moreaggressively marketing the BC PNP and regional business opportunities toprospective business immigrants internationally with a strong focus on LatinAmerica, Eastern Europe, Russia and India.
Amendingprogram requirements to allow BC PNP business immigrants, who locate inregional communities and invest in existing businesses, to meet theiremployment commitments by maintaining existing jobs. This change is effectiveOct. 14.
Makingthe Entry Level and Semi-Skilled pilot category of the BC PNP a permanentprogram category to help meet the needs of employers in key sectors such astourism. This change is effective immediately
Reducingthe minimum size for eligible employers located outside of the GVRD from fiveemployees to three. This change is effective Oct. 14.

For2011, B.C. was given a maximum of 3,500 nominations by the federal government. The Ministry of Jobs,Tourism and Innovation is negotiating with the federal government to increase B.C.nominations for 2012.

Sincethe inception of the program in 2001, more than 14,000 entrepreneurs, and skilled andsemi-skilled workers have been attracted to the province through the BC PNP.

Arecent, independent study shows that the 203 business nominees who immigrated to B.C. from 2005 to mid-2010 underthe BC PNPinvested over $423 million into the provincial economy and created over 1,100jobs.

Larlee Rosenberg Sponsors VBOT/Minister Kenney Event

2011-07-08T12:43:00.000-07:00

Speaker(s)

The Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism

Tue Jul 19, 2011 11:45 AM -
Add to Outlook Calendar

The Hon. Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism

Canada is one of the most ethnically, culturally and religiously diverse countries in the world and is thus a desirable place for immigrants, especially business immigrants, from all around the world.
One million more people are expected to come to Vancouver by 2030. How does the Government of Canada anticipate this regional growth will affect housing and the ability for newcomers and established Canadian workers to find jobs?
Join The Vancouver Board of Trade to hear The Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, speak to Canada’s immigration policy, his objectives and how immigration contributes to a strong country.
REGISTER NOW >>

Time:	Registration: 11:45 a.m. Lunch & Program: 12:15 – 2 p.m.
Location:	Vancouver Marriott Pinnacle - Pinnacle Ballroom 1128 Hastings Street West
Tickets:	Members:
	Individuals:	$79 + HST
	Table of 8	$758 + HST
	Future Members:
	Individuals:	$110 + HST
	Table of 8	$1056 + HST

Supporting Sponsor:

Larlee Rosenberg, Barristers & Solicitors, http://www.larlee.com/

Death of A Regulator: The Collapse of the Canadian Society of Immigration Consultants

2011-03-18T11:48:00.000-07:00

News Release from CIC: Commentary to Follow....

New regulator proposed for immigration consultants announced

Vancouver, March 18, 2011 — In order to improve the integrity of the immigration system, Dr. Alice Wong, Parliamentary Secretary for Multiculturalism, on behalf of Citizenship, Immigration and Multiculturalism Minister Jason Kenney, today announced that a new regulatory body is being proposed to oversee immigration consultants.

“The Immigration Consultants of Canada Regulatory Council – or ICCRC – has committed to enhancing the protection of the Canadian public and those who use the services of immigration consultants,” said Dr. Wong. “I am confident that, with the ICCRC’s strong regulation of immigration consultants, people using our immigration processes will be offered quality consultation, representation and advice.”

A notice has been published on the website of the Canada Gazette, Part I, proposing to amend the Immigration and Refugee Protection Regulations so that the ICCRC becomes the regulator of immigration consultants. The official Gazette publication will be available on March 19, 2011.

The proposed amendments are open for public comment for a 30-day period. The current intention is that the final regulations would be published in the Canada Gazette, Part II, and would come into effect.

This proposed regulatory amendment is the culmination of a process that began in June 2010 when Citizenship and Immigration Canada (CIC) announced its intention to launch a transparent public selection process to identify a body that could be recognized as the regulator of immigration consultants.

Immigration consultants are currently regulated by the Canadian Society of Immigration Consultants (CSIC). Reports by the Standing Committee on Citizenship and Immigration in 2008 and 2009 pointed to governance issues and a lack of public confidence in CSIC. Based on the Standing Committee’s reports, CIC decided to launch this public process.

“I anticipate that the Immigration Consultants of Canada Regulatory Council will not only help ensure public confidence in the integrity of the immigration program, but also that immigration consultants provide their services in a professional and ethical manner,” said Minister Kenney.

A selection committee was established to examine all submissions received following a public process requesting submissions from parties interested in being the regulator of immigration consultants. The committee reported its conclusions to the Minister of Citizenship, Immigration and Multiculturalism. Based on these conclusions, the ICCRC is being proposed as the regulator best placed to govern immigration consultants.

In its submission, the ICCRC committed to a variety of activities to foster a culture of transparency and openness and to protect the Canadian public and those using the services of an immigration consultant, while building a strong relationship with its members. It has also proposed innovative strategies to ensure accountability and transparency to its membership, including a hotline for members of Parliament for complaints and questions and a public awareness campaign.

Transitional measures would be put in place to ensure continuity of service for both existing members in good standing of CSIC and their clients during the transition to the ICCRC. This process could take a few months to complete and it is anticipated that the ICCRC could become the regulatory body this summer.

This process is part of a broader strategy to protect from immigration fraud people wanting to immigrate to or stay in Canada. Included in this strategy is Bill C-35, which aims to crack down on crooked consultants. As well, a multilingual domestic advertising campaign warning prospective immigrants, permanent residents and Canadian citizens not to be taken in by crooked immigration consultants was launched in February and an overseas advertising campaign, with the support of Australia, New Zealand, the United Kingdom and the United States—members of the Five Country Conference—was launched earlier this week. They can be viewed on YouTube.

Ryan Rosenberg Testifies in Ottawa at the Request of the Senate

2011-03-04T16:30:00.000-08:00

I just returned from a very quick trip to Ottawa where I testified as a witness at a meeting of the Senate Committee on Social Affairs,Science and Technology. The subject matter of the day was Bill 35, an act previously known as the Cracking Down on Crooked Consultants Act. It was a tremendous honour and fantastic experience.

The entire meeting is available on Parlvu and you can watch it from the web archive, here:

Ryan Rosenberg at the Senate

Keeping Permanent Resident Status: Humanitarian and Compassionate Grounds

2011-02-14T16:25:00.001-08:00

A permanent resident of Canada will satisfy the residency obligation if they are physically present in Canada, residing outside of Canada with a Canadian spouse (or in the case of a child, their parent) or if have a qualifying employment relationship with a a qualifying Canadian employer outside of Canada for 730 days in a five-year period. But if a permanent resident cannot meet these requirements, that person will have a final opportunity to maintain status on humanitarian and compassionate grounds. If an applicant falls short or doesn’t even come close to the 730 day requirement, an Officer must consider humanitarian and compassionate considerations relating to the permanent resident, taking into account the best interests of a child directly affected by the officer’s decision. These considerations must justify the permanent resident keeping their status even though they have failed to meet the residency obligation.

There is no definitive list of what types of factors an officer will consider. Each case is judged on its own merit, making it very difficult to predict when an applicant will be successful in an application based on humanitarian and compassionate grounds and when they will fail. Some of the factors which may be important include family medical situations overseas which have kept a permanent resident out of Canada (sick children or elderly parents, for example), custody battles or family breakdown outside of

Canada

, schooling or even mandatory military service. The options are endless.

In fact, section 28(2)(c) of IRPA clearly provides that an officer cannot make a determination of a loss of permanent residency based on a failure to meet the residency obligation without making an assessment of humanitarian and compassionate (“H&C”) factors.

The appropriate H&C factors to be considered in a removal order appeal to the IAD have been adequately set out in Ribic[1], adopted by the Supreme Court of Canada in Chieu[2] and have been consistently modified by the Board to suit the specific issues relevant to Residency Obligation Appeals.[3] These factors have also been supplemented by factors set out in Citizenship and Immigration Canada’s operational manuals. The factors are exhaustive and from all of these sources include but are not limited to:

initial and continuing establishment in Canada;
length of time spent in Canada;
reasons for departure from Canada;
circumstances surrounding the breach;
medical conditions in relation to a close family member and could arrangements be made or was it by choice that the appellant remained outside of Canada;
degree of control the applicant had over his circumstances;
any factors preventing a return to Canada;
extent of non-compliance with the obligation;
reasons for continued or lengthy stay abroad;
ties to Canada;
whether reasonable attempts were made to return to Canada at the earliest opportunity;
best interests of children affected by a negative determination;
family in Canada and impact on that family caused by loss of status;
personal hardship stemming from loss of status;
future intentions in relation to residing in Canada;
whether the appellant can be sponsored by a spouse or child;
other unique or special circumstances; and
status in other countries.

These factors, as applicable, ought to be put an examining officer in detail as the onus is on a permanent resident to convince an officer that they are deserving of an exemption.

[1] IAB T84-9623

[2] [2002] 1 S.C.R. 84, 2002 SCC 3

[3] See for example, Kuan v. Canada [2003] IADD No. 638, Wong v. Canada [2003] IADD No. 824, Lei v. Canada [2006] IADD No. 75.

Permanent Resident Status: What it is and how it is lost

2011-02-14T16:23:00.000-08:00

A permanent resident is a person who has acquired permanent resident status and has not subsequently lost their status under section 46 of the Act[1]. The acquisition of this status is achieved by a foreign national when an application for status is approved[2] following which, if that person is issued a permanent resident visa and has come to Canada in order to establish permanent residence[3] and an officer determines that the person is not inadmissible under the Act, status is achieved.[4]

Once a person becomes a permanent resident that person has the right to enter and remain in Canada, subject to the provisions of IRPA,[5] including any conditions impose under the Regulations.[6] For the purposes of this paper, the most relevant conditions imposed on a permanent resident are found in s.28 of the Act, which provides as follows:

“28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.

Application

(2) The following provisions govern the residency obligation under subsection (1):

(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

(i) physically present in

Canada

(ii) outside

Canada

accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

(iii) outside

Canada

employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

(v) referred to in regulations providing for other means of compliance;

(b) it is sufficient for a permanent resident to demonstrate at examination

(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;

(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and

(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.”[7]

As a means of providing a permanent resident evidence of that status, CIC is obligated to provide a permanent resident with a document indicating status, that is, a permanent resident card[8]. Section 31 of the Act not only provides that a permanent resident “shall be provided with a document indicating their status,”[9] but also establishes a rebuttable presumption that a person who is outside of Canada with out a document indicating status does not have permanent resident status.[10] So, despite the law that a permanent resident remains a permanent resident until status is lost, if a permanent resident outside of Canada has status but does not have a permanent resident card, that person, although a permanent resident is tasked with the onus of proving that status, by way of an application for a travel document under s.31(3) of the Act, if they wish to have that status confirmed while outside of Canada, which for reasons set out later in this paper, may not always be in a permanent resident’s best interests. Briefly though, an application for a travel document necessarily requires an officer to examine whether a permanent resident is compliant with s.28, and if not, the process by which a permanent resident loses status under s.46 may be triggered.

Section 46 of the Act provides that a permanent resident loses permanent resident status upon the occurrence of one of four events, or triggers:

1. acquisition of Canadian citizenship;[11]

2. a final determination made outside of

Canada

that the permanent resident failed to comply with s.28 (that is, a refused travel document application under s.31);[12]

3. when a removal order made against them comes into force;[13] or

4. upon a final determination under s.109 or s.114 to vacate a decision to allow for refugee protection or protection, respectively.

The first and fourth loss of status triggers are beyond the scope of this paper. Respecting the second trigger, although a determination can be made outside of Canada that a permanent resident has failed to comply with the residency obligation, permanent residents have the right to appeal that decision[14] and as such, a “final determination” will not have occurred until the sooner of a permanent resident status filing an appeal to the Immigration Appeal Division (“IAD”) and ultimately losing that appeal or if a permanent resident does not file an appeal within the stated limitation period.

The limitation period for filing an appeal of a decision made outside of Canada that a permanent resident failed to comply with the residency obligation is 60 days, pursuant to s.9(3) of the Immigration Appeal Division Rules (SOR/2002-230) (the “Rules”). The Rules also provide that the appeal must be filed at the IAD division responsible for the region in Canada where the appellant last resided. The Appellant is also obligated to state whether or not he/she wishes to return to Canada for their appeal when the appeal is filed. If an Appellant has been in Canada at least 1 day in the 365 days prior to filing an appeal, he/she will be issued a travel document to return to Canada for the appeal by the CIC office outside of Canada responsible for the decision to refuse a travel document application. If an Appellant has not been physically present at least 1 day in the 365 days prior to filing an appeal, the Appellant must make application to the IAD for an order that they physically appear at the hearing, pursuant to section 43 and 46 of the Rules. Whether or not an Appellant physically appears in Canada to attend their appeal at the IAD, that person will lose status upon final determination of the appeal, if the Appellant loses their appeal.

Similarly, if a permanent resident is found to be non-compliant with the residency obligation from within Canada, usually in the context of either a permanent resident card application[15] or an examination upon entry into

Canada

, that person will have the right to appeal the decision to the IAD. However, unlike with the second trigger, in this context, in the case of this third trigger, loss of status will occur upon a removal order becoming enforceable. Removal orders will typically be issued following an examination in

Canada

by an officer that a permanent resident is non-compliant with the Act for failing to meet the residency obligation.[16] An officer’s decision must be transmitted to the Minister (read: Minister’s Delgate) in a Report on Inadmissibility, pursuant to IRPA s.44(1), following which the Minister may issue a removal order[17], pursuant to section 44(2). As set out in s.49 of the act, such a removal becomes enforceable on the latest of:

1. the removal order being made if there is no right to appeal[18];

2. the day the appeal period expires if there is a right to appeal and no appeal is made[19]; and

3. the date of the final determination of the appeal, if an appeal is made.[20]

It is also worth noting that in cases where a determination is made outside of Canada that a person failed to meet the residency obligation and that person subsequently files an appeal which they attend in Canada, if the person loses their appeal, the IAD will issue a departure order and loss of status will be governed by s.46(1)(c) and not 46(1)(b).

[1] IRPA, s.2

[2] IRPA, s.21

[3] IRPA, s.20(1)(a)

[4] IRPA, s.21

[5] IRPA, s.27(1)

[6] IRPA, s.27(2)

[7] IRPA, s.28

[8] IRPA, s.53 provides that for the purposes of s.31(1) the document indicating the status of a permanent resident is a permanent resident card. The card, like most government documentation, remains the property of Her Majesty in Right of Canada and must be returned upon request. Also worth noting, the permanent resident cards are issued valid for five years, except in cases, for example, where the permanent resident is under examination for non-compliance with the residency obligation or has filed an appeal to the IAD on that issue. A permanent resident card is revoked upon loss of status pursuant to s.46 or if the card is lost, stolen or destroyed, or if the permanent resident is deceased.

[9] IRPA, s.31(1)(a)

[10] IRPA, s.31(1), (2),(3)

[11] IRPA, s.46(1)(a)

[12] IRPA, s.46(1)(b)

[13] IRPA, s.46(1)(c)

[14] IRPA, s.63(4)

[15] Pursuant to IRPR, s.56, an application for a permanent resident card must include a comprehensive list of the applicant’s absences from Canada in the fiver year period immediately prior to filing the application.

[16] IRPA, s. 41

[17] As per section 229(2), the type of removal order issued against a permanent resident under section 44(2) is a departure order.

[18] IRPA, s.49(a). This typically does not to residency obligation appeals, but more commonly in matters where a determination that a permanent resident is inadmissible for reasons such as grounds related to security, violation of human or international rights, serious criminality or organized criminality.

[19] Pursuant to section 7 of the Rules, an appeal must be filed within 30 days of receipt of a removal order.

[20] An appeal would be filed pursuant to s.63(3) of IRPA and “final determination” is understood as the day a decision is rendered by the IAD.

Navigating the PR Card Extension Process

2011-02-01T12:23:00.000-08:00

Post Grad Work Permit Program Expanded

2011-01-31T14:32:00.000-08:00

Operational Bulletin 262 – January 31, 2011
Launch of a Pilot Program to Expand the Post-Graduation Work Permit Program for International Students Graduating from Designated Private Post-Secondary Institutions in British Columbia

Summary

Effective January 31, 2011, the Post-Graduation Work Permit Program (PGWPP) has been expanded to include international students who have completed career training programs of eight months or longer at select private educational institutions in British Columbia.

Issue

Under a two-year Pilot Program with British Columbia, the PGWPP has been expanded to include international students graduating from select British Columbia Education Quality Assurance (EQA)-designated private post-secondary institutions in programs of eight months or longer.

IMPORTANT: All work permits (WP) issued under this Pilot Program must be coded as indicated below (see Special Program Code under System Instructions) to support an effective evaluation of the Pilot.

New Pilot Parameters

This Pilot will be in effect between January 31, 2011, and January 31, 2013, inclusively and may be extended with a mutual agreement between the parties. These dates refer only to the period in which qualifying WPs can be issued and not to the duration of the WPs. The terms of the Pilot will apply only to qualifying foreign nationals who have graduated from eligible programs of study at select EQA-designated, private post-secondary institutions in the province of British Columbia (see list under Eligible Institutions).

Pilot Procedures

All of the general eligibility criteria, conditions of the WP and processing procedures for the PGWPP will continue to apply in conjunction with the following guidelines for the Pilot Program:

A) Eligible Participants

Applicants wishing to participate in this Pilot Program must meet the following additional criteria to qualify for a WP:

· Must have graduated from one of the EQA-designated private post-secondary institutions in the Province of British Columbia designated by the Province of British Columbia as eligible institutions for the purposes of this Pilot which are listed below “Eligible Institutions” during the validity period of the Pilot Program; and

· Must have completed a program of study that is at least eight months in length and received a degree, diploma or certificate upon completion. Furthermore, only career training programs will qualify for this pilot. General interest courses, or programs of study that consist primarily of English or French as Second Language instruction will not qualify.

B) Eligible Institutions

The following EQA-designated institutions have been named by the Province of British Columbia as eligible institutions under this Pilot Program:

· Degree-Granting Institutions: Alexander College; Columbia College; Fairleigh Dickinson University Vancouver; Quest University Canada; Sprott-Shaw Degree College; Trinity Western University; University Canada West; and

· Non-Degree Granting Institution: Arbutus College of Communication Arts, Business and Technology; Ashton College; Centre for Arts and Technology; Eton College; John Casablancas Institute of Applied Arts; Mountain Transport Institute Ltd.; MTI Community College; Pacific Institute of Culinary Arts; Sprott-Shaw Community College; Stenberg College; Vancouver Film School.

C) Post-Graduation Work Permit Issuance

· Consult section 5.24 of Overseas Processing (OP) 12 Manual – Students.

· Use labour market opinion (LMO) exemption code C-43 in conjunction with paragraph 205(c)(ii) of the Immigration and Refugee Protection Regulations in support of the “competitiveness of Canada’s academic institutions or economy.”

· Verify the eligibility of applicants pursuant to existing procedures to ensure that they meet the requirements of the pilot and the broader PGWPP.

· Issue an open or open/restricted (depending on medical examination requirements, if applicable) WP to eligible applicants.

D) System Instructions

Special Program Code: Officers are required to use the NEW Special Program Code “ISP” (the long description is International Student Pilot Program for B.C.) in FOSS, GCMS, CAIPS, or, for inland processing, in the drop-down menu in the CPC system under “Special Programs”, for applicants meeting the requirements of the Pilot. The use of this special program code is mandatory and it will be important for statistical research, evaluation and policy development purposes.

E) Validity and Duration

A WP issued under this Pilot, like any other issued under the PGWPP, may be valid up to a maximum of three years depending on the duration of the program of study. If the program of study is two years or more, the student may be eligible for a three-year WP. Should the program of study be less than two years but at least eight months, the student may be eligible for a WP lasting for a period equal to the duration of the studies. For example, if the student graduated from an eight-month certificate program, he or she may only be eligible for a WP of an eight-month duration.

F) Program Integrity Monitoring

To remain eligible to participate in this Pilot, an institution must continue to maintain its EQA designation and comply with the guidelines of the Pilot and the Immigration and Refugee Protection Act (IRPA) and its Regulations. In circumstances where an institution loses its EQA designation, the Province of British Columbia will notify Citizenship and Immigration Canada (CIC) and the graduates of the institution in question will no longer be eligible for the Post Graduation WP as of the day the institution loses its EQA status. However, in the interest of administrative fairness, all applications received by CIC before the date of the EQA revocation, will be processed accordingly.

Note: An institution may be removed from participating in this Pilot if that institution is found to be non-compliant with the Pilot’s guidelines and/or IRPA and its Regulations.

G) Program Evaluation

Ongoing monitoring and evaluation will be performed in partnership with the Province of British Columbia to determine the success of the Pilot Program.

H) Further Information

For additional information relating to the PGWPP, please refer to the CIC website at www.cic.gc.ca/english/study/work-postgrad.asp.

Promising Nothing: Immigration Numbers Trending Downwards

2010-11-15T11:14:00.000-08:00

On November 1, 2010 Citizenship and Immigration Canada announced its annual immigration plan for 2011 and the accompanying news release tries to paint a rosy picture for people looking to immigrate to Canada. However, on closer examination, Canada’s commitment to 2011 immigration numbers is nothing more that the same old song and dance at best and regressive at worst.

In the 2011 plan suggest that Canada will accept between 240,000 and 265,000 new permanent residents, with 60% coming through economic streams (skilled workers, investors, provincial nominees, etc.) and 40% through other non-economic programs (family class, refugees, etc). This represents the same commitment since 2006 (for 2007), when the Conservative Party took office, and as our population grows, maintaining the same commitment level actually represents a decrease in the number of new immigrants as compared to our national population.

With a national population of approximately 34 million people, 240,000 - 265,000 new permanent residents in 2011 represents approximately 0.70% to 0.78% of our current population. In 2006, Statistics Canada estimated Canada’s population at approximately 30 million people and at that time 240,000-265,000 new immigrants represented approximately 0.80% to 0.88% of our then population. So in essence, our government’s commitment to immigration levels, although spun as maintenance of current levels, actually represents a steady and significant decrease as compared to our actual population.

By comparison, according to Statistics Canada, Canada’s current birth rate is approximately 1.1% (381,000 births) and our current death rate is approximately 0.72% (247,000 deaths). Based on this year’s immigration targets, immigrants will roughly compensate for our death rate, leaving our country with a nominal population increase trajectory. As our current population ages we have to wonder whether we will have sufficient numbers to meet future labour market needs and how we will satisfy these needs if not through, in part, immigration.

BC/Fed Agreement:Temporary Foreign Worker Annex

2010-11-08T21:12:00.001-08:00

One of the highlights of the Federal/Provincial Agreement on immigration entered into by the Federal Government of Canada and the Province of British Columbia is an annex dealing with temporary foreign workers. The Province recently released a fact sheet to BC lawyers outlining some of the details. While details are scarce for the time being, there is much hope for optimism. Here is a copy of the fact sheet:

FACT SHEET

Temporary Foreign Worker Annex

What is the Temporary Foreign Worker (TFW) Program?

The TFW Program is designed to fill short-term labour needs in the Canadian labour market, and is administered jointly by Human Resources and Skills Development Canada (HRSDC) and Citizenship and Immigration Canada (CIC). The TFW Program allows employers to hire Temporary Foreign Workers (TFWs) when vacant positions cannot be filled by the Canadian labour force. Employers are permitted to hire TFWs for up to two years under the TFW Program (when approved).

In instances where an exemption is not in place, employers must apply to HRSDC for a Labour Market Opinion (LMO). Either a positive or neutral LMO is required from HRSDC/Service Canada in order for an employer to bring in a TFW.

What is the Temporary Foreign Worker Annex? How does it Work?

The Canada-British Columbia Immigration Agreement (the “Agreement”) was signed in April 2010. The Agreement includes a series of Annexes to further define the provincial roles and responsibilities in applicable policy/program areas. Given the growth in demand for TFWs in British Columbia since 2002, an Annex on TFWs (Annex F) is included in the Agreement.

The TFW Annex identifies areas of cooperation between Canada and British Columbia to support the operation of the TFW Program and British Columbia-specific TFW issues in general, including four key pilot projects:

a. Eliminate the need for employers to apply to HRSDC for a LMO in occupations that have experienced prolonged labour shortage and require workers on an ongoing basis.

b. Allow employers to submit a LMO whereby a foreign worker can be employed by more than one employer, within the same occupation, while satisfying the requirements of HRSDC and CIC.

c. Allow a foreign worker to complete the provisional licensing requirements while working and gaining experience in British Columbia.

d. Expand eligibility for open work permits to eligible spouses and working-aged dependents (aged 18-22) of TFWs.

Under the Annex, British Columbia is expected to work collaboratively with both CIC and HRSDC, to implement the pilots described above. Because the TFW Program touches upon the work of various agencies and Ministries, both federally and provincially, there is a standing TFW Working Group made up of representatives from CIC, HRSDC, Service Canada, Regional Economic and Skills Development (RESD), Employment Standards Branch (ESB), Canada Border Services Agency (CBSA), etc. This group meets on a regular basis to share information and discuss TFW-related topics, including the Annex pilots.

British Columbia has also agreed to work with HRSDC and CIC to share information that will support the operation of both the TFW Program and the British Columbia Provincial Nominee Program (BC PNP). The purpose of information sharing is to improve the protection of TFWs within British Columbia, and to ensure that employers participating in the TFW Program respect provincial labour standards.

Additional Information

The TFW Annex was negotiated and finalized at a time when labour market conditions were extremely tight within British Columbia. Given the changes that have occurred within the provincial labour market since 2008, a degree of flexibility is required, particularly with respect to the pilot projects, to ensure that TFW-related initiatives in British Columbia are responding effectively to current provincial labour market conditions and employer needs, while respecting the overall integrity of the federal program.

BC PNP APPLICATION PROCESS Business Skills, Fast-Track

2010-09-11T22:21:00.000-07:00

Overview

The BC PNP is a provincial immigration program which is operated in partnership with Citizenship and Immigration Canada. The specific program we will describe below is known as the “Business Skills” program and is suitable for investment in the GVRD or Abbotsford. Applicants can be fast-tracked if a client is willing to deposit $125,000 interest free with the province after nomination. The deposit is refundable in full when the client satisfies the terms of the PNP program.

Compared to the Federal Investor Program, the BC PNP business programs typically offer a number of advantages, including early entry in Canada on a work permit, control over investor dollars and flexible qualification criteria.

The general requirements of the program include:

Confirmation of a personal net worth of at least $800,000.00
An minimum investment in a BC business of $400,000.00 (existing business or start-up)
The investment must create three full time jobs in the business
You must actively participate in the management of the business
You must demonstrate enough unencumbered funds to make the investment
You must own at least 33.3% of the voting and non-redeemable shares in the business

The Investment

The general guidelines regarding the $400,000 investment are flexible, but must still conform to a number of rules, including:

A maximum of $267,000 of the $400,000 investment (2/3) can be attributed to the purchase of shares. You may purchase shares for more than this amount but will only get credit for $267,000.
Investments in real-property are generally not credited except for in unique situation
The balance of the investment may be used for items such as equipment, leasehold improvements, inventory, patents, promotion/marketing, professional/start-up fees and start-up wage
The business investment has to be reasonable and make good commercial sense

A Regional Program exists for clients wishing to invest outside of the GVRD or Abbotsford, but still in BC. The requirements under the Regional Program are half of the Business Skills program, i.e., $400,000 net worth and a $200,000 investment and at least one full-time job created.

Timeline

The following information is for reference only and represents our best estimate as to how a file could be processed. The information in this memorandum is based on current processing times which are based on past performance only. There are many factors which can affect processing timelines including, but not limited to, visa office resources, file or information abnormalities, change in immigration or PNP policies and delays in receiving medical or police background checks.

These estimates also rely on the Applicant’s ability to respond to our requests for information and documents in a timely fashion.

We will make best efforts ensure the expeditious processing of this application.

	Activity	Estimated Due Date	Responsibility
1.	Client reviews and funds retainer	X	Client
2.	LR contacts PNP, re: processing parameters	X+1 DAY	LR
3.	LR prepares preliminary application	X+10	LR, Client
4.	Client signs and returns preliminary application to LR	X+15	Client
5.	LR files preliminary application	X+16	LR
6.	PNP reviews and approves preliminary application, invites Client to file formal application	X+50	PNP
7.	LR prepares formal application	X+70	LR, Client
8.	Client reviews, signs and returns the formal application to LR	X+80	Client
9.	LR files the formal application	X+81	LR
10.	PNP reviews formal application and issues Client an invitation letter for an interview, CIC is copied on that letter	X+ 140	PNP
11.	LR prepares a visitor visa application for Client	X+145	LR
12.	Client files visitor visa application for PNP interview	X+150	Client
13.	CIC issues visitor visa, Client travels to Canada for interview	X+165	CIC
14.	Client attends BC PNP interview	X+170	Client, PNP
15.	PNP Approves Client’s formal application	X+195	PNP
16.	LR negotiates Performance Agreement, Deposit Agreement with PNP	X+205	LR, PNP
17.	Client signs Performance Agreement and Deposit Agreement, returns to LR – LR files at PNP	X+206	Client
18.	PNP issues letter in support of Client’s work permit application	X+210	PNP
19.	LR prepares Client’s work permit application	X+215	LR
20.	Client signs and files Work Permit Application	X+220	Client
21.	CIC issues medical exam request to Client	X+265	CIC
22.	Client and family undergo medical exams	X+270	Client
23.	CIC Approves Client’s work permit application	X+300	CIC
24.	Client travels to Canada with family, receives work permits, establishes residential address, opens bank account	X+300	Client
25.	Client funds deposit agreement ($125,000)	X+310	Client, LR, PNP
26.	LR files Client PNP Arrival Report	X+310	Client, LR, PNP
27.	BC PNP issues nomination certificate	X+320	PNP
28.	LR finalizes Client PR application, files at Buffalo or applicant's home country (to be determined)	X+330	LR, Client
29.	CIC issues PR medical request to Client	X+365	CIC
30.	CIC issues PR visas to Client	X+600	CIC
31.	W establishes business, funds investment	X+330 to X+1060	Client
32.	LR files progress reports to BC PNP	X+420 X+600 X+780 X+1060	LR, Client
33.	PNP approves final progress report, returns deposit	X+1100	PNP

Canada’s Endangered Species: The Federal Skilled Worker

2010-09-06T21:15:00.000-07:00

Faced with a backlog exceeding 640,000 immigration applications under the Federal Skilled Worker Class at Canadian embassies and consulates around the world in 2008, Minister Jason Kenney decided it was time to cull the herd and simple math made for an easy justification.

If Canada were to welcome 250,000 immigrants (not applicants, immigrants, i.e., including family members) in a given year from all classes, that is, from refugees to investors and family sponsorship to skilled workers, a queue of 640,000 in one class alone would take seemingly forever to process.

So what did the Minister do about it? Instead of raising the annual immigration targets or throwing more money at application processing, the Minister acted quite tactfully; he incrementally changed what it means to be a skilled worker. First in 2008, the Minister limited the types of skilled workers that Canada would accept and then in 2010, the Minister tweaked those requirements, making it more restrictive yet to qualify. These restrictions have the effect of reducing the pool of incoming qualified applicants thereby freeing up resources and “spots” for those already in the queue and offering relatively decent processing for those making new applications.

For many who are considering applying as a skilled worker the new rules may give reason to find another category. Those looking to apply now must meet all of the requirements of the class which now includes meeting the definition of a Skilled Worker, having at least 67 points based on education, work experience, language skills, age and ties to Canada AND either having pre-arranged employment in Canada OR having had at least one year of continuous full-time or equivalent part-time paid work experience in at least one position on a list of 29 different occupation groups. The occupation groups range from jobs in restaurants to architects, plumbers, nurses and crane operators. In 2008, the list of acceptable occupations was at 37. A full list is available on CIC’s website.

Further restricting the class, a maximum of 20,000 Federal Skilled Worker applications will be considered for processing in the first 12 months of this new regime. Within the 20,000 cap, a maximum of 1,000 Federal Skilled Worker applications per eligible occupation will be considered for processing each year. Note the use of “considered for processing” and not “approved”. Refused applications appear to count towards the cap.

All of this has led to an impressive decrease in application processing and in the size of the backlog itself. But before we congratulate the Minister, consider this: my guess is that a good portion of those applications were hastily submitted and many don’t qualify. For those who did qualify, many will have found immigration programs and options in places like Australia and the USA. Others will have lost interest in Canada, some will have gotten sick and some will have died.

I hate to say “I told you so,” but I did as it has been readily apparent for some time and I first wrote about this program’s forthcoming demise in my July 2006 column. Now more than ever, it is quite obvious that the future of immigration is not with the Skilled Worker program.

Ryan Rosenberg is am immigration lawyer and partner at Larlee Rosenberg, Barristers & Solicitors, in Vancouver. Contact Ryan at 604-681-9887 or Ryan.Rosenberg@larlee.com or visit his website at www.larlee.com.

Links to Old Versions of www.cic.gc.ca [1999 to June 2008]

2010-07-28T09:47:00.000-07:00

The following links are to old versions of http://www.cic.gc.ca/, including all old operational memorandums, application forms, kits, etc.:

The following links set out incremental changes and bare-bones versions of www.cic.gc.ca between 04 October 1999 and 25 June 2008. Theses links are somewhat more difficult/frustrating to navigate but do include operational manuals, etc. Click "READ MORE" to see bare-bones versions of cic.gc.ca from 21 July 2000 to 25 July 2008.

Immigration Trusts: A Primer

2010-07-23T13:30:00.000-07:00

Overview

Canada, with good reason, continues to be one of the leading destinations for wealthy immigrants from many jurisdictions. Business immigrants not only move themselves, they also move a lot of money. There are no official statistics, but anecdotal evidence suggests that wealthy immigrants invest billions in Vancouver real estate alone every year. Billions more remain offshore, some of it held personally and some in fiduciary structures. Some immigrants become Canadian Citizens, while others are content to remain permanent residents. Some immigrants become Canadian tax residents, others do not. Either way, most of them should consider the implications of Canadian tax laws, not only for themselves but for future generations.

Tax Advantages of Immigrating to Canada

Canadian tax “residents” are required annually to pay tax on global income and, pursuant to “foreign asset disclosure” rules, declare the existence of (but not necessarily pay tax on), certain offshore assets. Canada offers a number of very significant planning advantages. These include:

• The “immigration trust”. The Income Tax Act provides that all income and capital gains linked to assets settled by an immigrant upon and held by a properly structured offshore trust are free of Canadian tax for a period of up to five years. In effect, Canada is a tax haven for the first five years of tax residence.

• For some immigrants the tax free period may extend well beyond five years. The immigrant trust may, subject to limitations imposed by the Rule Against Perpetuities, make permanent distributions on a tax free basis to Canadian tax resident beneficiaries where the settler / contributor of assets either never acquires or abandons tax residency status before the expiration of the 5 year term. In such circumstances Canada, in effect, becomes a permanent, multi-generational offshore centre for wealthy families.

• Immigrants to Canada are not automatically deemed to be tax residents. Some are resident, while some are not, according to their ties to Canada.

• Canadian citizens can shed their tax residency status by severing their linkages with Canada and moving offshore. This will trigger a departure tax giving rise to deemed capital gains. However, there is no departure tax for assets held in an immigrant trust.

• Canada has no estate tax. (There is a “deemed disposition on death” with regards to capital gains, which may trigger some tax.)

The Immigration Trust

Generally, a resident of Canada, whether an individual, corporation, or trust, is subject to Canadian tax on his/her worldwide income. An exception exists, however, for immigration trusts. A properly constituted and administered immigration trust is not resident in Canada. As such, it is not subject to Canadian tax on any of its income, including taxable capital gains, for the first five years. Distributions of capital are also not subject to Canadian tax. Any amounts paid to or for the benefit of a Canadian resident beneficiary, however, are taxable in the hands of the beneficiary.

To qualify as an immigration trust, the following conditions must be present:

• All of the trust’s property must be acquired from a non-resident settler (or grantor);

• The trust must not receive any financial assistance from any person resident in Canada at any time;

• A majority of the trustees must not be resident in Canada; and

• The non-resident trustees must actively exercise their responsibilities as trustees.

Once an immigrant creates an immigration trust, the individual can transfer various foreign assets to the trust. These assets can include cash, real estate, portfolios, and other investments. At the end of the five year tax free period, the trust generally loses its tax-free status and is treated in the same manner as a Canadian resident trust. Depending on the immigrant’s circumstances, however, it may be possible to extend the tax-free status.

In addition to tax savings, immigration trusts can provide other benefits. These include the benefits generally associated with maintaining offshore accounts, and include creditor protection and privacy.

Conclusion

All wealthy people who immigrate to Canada should “tax plan” their way in by retaining experienced tax and immigration counsel to advise on their specific circumstances. There is no “one-size fits all” solution. Every plan should be customized to take into account the particular needs of each family. The absence of proper planning will often give rise to very serious problems with Canadian tax authorities and/or immigration authorities. Proper planning, however, will ensure maximal savings and other benefits to Canadian immigrants.

Scaring the Ghosts: Canada's Latest Attempt to Regulate Immigration Consultants

2010-06-09T12:56:00.000-07:00

For years, politicians have been grappling with the issue of how to end untrained and unregulated people from providing immigration advice, also known as “ghost consulting.” There is a general consensus that tens of thousands of people each year are ripped off by ghost consultants and even more are ripped off by consultants who recommend fraudulent means by which to accomplish Canadian immigration goals.

Numerous attempts at cracking down on ghost and unethical consultants have been launched, including, but not limited to, requiring licensing, creating the much maligned Canadian Society of Immigrant Consultants, and even CIC launching extensive media campaigns warning the public of the risks of dealing with unauthorized representatives.

In June, the Conservative government launched the latest attempt at regulation, with the introduction of Bill C-35 into the House of Commons, also known as the Cracking Down on Crooked Consultants Act (the “Act”). The humor couched in the name of the Act may suggest to some that this attempt at regulation is disingenuous at worst and self-deprecating at best. Before I explain this view of the name of the Act, a quick review of the some of the highlights of the legislation is in order.

If enacted, the Act will provide that no person shall knowingly represent or advise a person for consideration – or offer to do so – in connection with [an immigration proceeding] unless the person is a member in good standing of a law society (i.e. a lawyer), or a member of a body designated by the government. There are a couple points to pull out of that sentence. First, the prohibition does not require that the person actually provide any advice. Even offering to do so is prohibition. (We’ll call that the crime of ‘attempted consulting’.) Second, the prohibition does not extend to people who will not be paid; that part isn’t new. Unpaid consultants, if disclosed to CIC, are allowed.

Second, the government will take greater control over any body designated to regulate immigration consultants (not lawyers). This appears to be a response to criticisms that the CSIC has not served its members of the public entirely well.

Third, the Act criminalizes ghost and unethical consulting. Any unauthorized person who represents or advises a person with regard to an immigration matter will have committed an offence. This applies to all stages in any immigration proceeding or application, including before the application has been made. The penalty for a summary offence is at most a two-year conviction or a $50,000 fine.

Finally, the government may make regulations permitting CIC to disclose information relating to the professional or ethical conduct of a lawyer or regulated immigration consultant to a body that is responsible for governing the conduct of those professions (a provincial law society, for example).

So will this solve the problem of ghost-consulting? Certainly amendments to the IRPA alone will be insufficient. The problem with introducing new regulations to end ghost consulting is of course that ghost consultants have no intention of being regulated. These amendments do not make it any easier to identify ghost consultants, such as by offering an incentive to an individual to disclose the existence of a ghost-consultant. Given this, and the fact of course that domestic legislation cannot do anything to address the issue of overseas ghost consultants, my initial opinion is that while the amendments will certainly result in more regulations for licensed consultants, which may or may not making them more professional than they already are (it depends on what is contained in the regulations), it certainly alone will not stop the practice of an individual saying “I can increase your chances.. I’m connected.. but we won’t tell CIC that I helped because they don’t like my clever tricks.”

Ryan Rosenberg is am immigration lawyer and partner at Larlee Rosenberg, Barristers & Solicitors, in Vancouver. Contact Ryan at 604-681-9887 or Ryan.Rosenberg@larlee.com or visit his website at www.larlee.com. This article was written with the assistance of Steven Meurrens, Associate at Larlee Rosenberg.

The Truth behind the Federal Immigrant Investor Program

2010-05-05T10:49:00.000-07:00

I was recently retained by an exceptionally successful entrepreneur from Europe. He asked me to help him understand his immigration options and was most interested in the Federal Immigrant Investor Program. I decided to break from convention and really examine the mechanics of the program beyond what is commonly promoted both in Canada and around the world. I ran the numbers and what I found first surprised and then disappointed me.

For those of you unfamiliar with the program, rich would-be immigrants who have qualifying business experience outside of Canada can immigrate to Canada on the heels of a passive investment in Canada. The program requires a $400,000 investment in a government controlled fund for a five year term. Upon investment, the immigrant applicant receives a permanent resident visa and at the end of the term, the investor receives the $400,000 investment back, interest free. What the government does with that money over the five year period is a matter for another article.

Many savvy investors, like my client, look at a $400,000 investment without interest as a lost opportunity and instead of investing the full amount, seek out financing from one of a number of government authorized financial intermediaries (“Banks”). For years now, and taking direction from the banks, the banks themselves, consultants and lawyers have promoted a financing option at $120,000. For $120,000 a Bank will lend an investor funds required for investment under the program and facilitate the investment itself. The investor is also required to sign an assignment of the $400,000 refund from the government to the Bank at the end of the 5 year term. The $120,000 covers all interest charges and bank fees associated with the investment and at the end of the 5 year term the investor received no money in return. So where does all that money go?

Based on today’s interest rates (which we know are going up sometime soon), the cost to finance a $400,000 loan for five years is about $1000 a month in interest alone. So, over 60 months, the cost should run about $60,000. If any of the 120,000 payment is used to bring down the total amount borrowed (think of it like a down payment on your house), the monthly interest payment would also drop. So, if $60,000 of the $120,000 goes to the bank for interest that does seem quite reasonable. Banks are in the business of lending money, after all. So now we are left is $60,000, where does that money go?

Well for starters, it isn’t only $60,000 left in the pool. It’s more like $88,000. Theoretically it is the Provinces who benefit from the $400,000 investments made under this program and in return for raising money, the Provinces pay out a commission of $28,000 to the Banks and that commission trickles down to the consultant and lawyers (a large number of whom aren’t even Canadian tax payers) who refer clients to the banks. Most banks top up that commission and my research shows a range in commissions payable to consultants and lawyers of $23,000 to $58,000. Assuming $58,000 goes to the referring party, $30,000 of the $88,000 remains for the Bank in addition to the $60,000 earned in interest, for a total of a $90,000 profit.

Although most were forthcoming, when I called one of our Banks to ask about their terms under the program, they refused to tell me what commission they were willing to pay. When I explained to them that I wanted to know because I wanted to tell my client where his money was going, she was shocked and appalled that I would be so honest with him. Most people, she explained, don’t tell their clients about the commission.

I’ve come to learn that the $120,000 financing option is so popular and is marketed so well that most immigration practitioners rely on it without any consideration to other options or where the money goes. I’ve also come to learn that the practice of not disclosing commissions to clients is also wide-spread in the consulting community and quite possibly in the legal community albeit to a lesser extent based on the people I’ve talked to.

It should be known that a variety of financing options are available. Some Banks will offer financing at $200,000 where at the end of the 5 year term the investor receives $100,000 back and others have varying options within the $400,000 lending range. It should also be known that financing is completely optional and does not have to be established through an investment facilitating bank. There is nothing stopping an investor from borrowing $400,000 from a bank in the investor’s home country, paying monthly interest to that bank and then using that money to fund an investment under the Federal Investor Program, receiving the full $400,000 back after five years. Based on my estimates and today’s interest rates, an investor can easily bring down his cost under the program to about $60,000 plus application fees and if required, legal or consulting fees, a fraction the $120,000 option that saturates the market.

For a list of authorized financial intermediaries/facilitators see: http://www.cic.gc.ca/english/immigrate/business/investors/facilitators.asp

Myth Buster: Every Permanent Resident must have a PR Card?

2010-04-07T11:14:00.000-07:00

The Permanent Resident Card is an ingenious little piece of plastic. It serves as primary identification for many permanent residents of Canada, it facilitates travel into Canada and it expires, typically every five years.

The benefits of having identification and easy travel into Canada speak for themselves, but the complications stemming from the expiration of PR Cards is usually only appreciated after one suffers through an anything but routine renewal application. Incidentally, primary identification is a practical but not a legal benefit of the PR card (in many applications), but that is a topic for another day.

Before I get into renewal issues, the first myth that I would like to debunk is that every permanent resident of Canada must hold a valid permanent resident card. This is simply not the case. Much like when one’s passport expires their citizenship does not expire, when a permanent resident card expires, a person does not lose permanent resident status. The card is a symbol of status only; it is not status in and of itself.

The second myth that I would like to debunk is that every permanent resident of Canada must always present a PR card to Canada Border Services Agency (“CBSA”) Officers upon entry in to Canada. Again, this is simply not the case. The PR Card is only required when using a commercial carrier to travel to Canada, for example, airlines and buses. If, for example, a permanent resident travels to Canada by private car, there is no obligation whatsoever on the permanent resident to have a valid PR Card. That said, a person without a valid PR Card must produce other evidence of their permanent resident status so as to satisfy CBSA that they are in fact a permanent resident and an original confirmation of permanent residence (or landing document), will and should do the trick. Once a CBSA officer can confirm that a person is a permanent resident, the officer must allow that person to enter Canada. Permanent residents have a right to enter Canada and CBSA officers know it.

Understanding entry into Canada without a valid PR card is particularly helpful for permanent residents outside of Canada who believe that they are stuck outside or inside of Canada because they do not have a valid PR card. So, for example, a person in this situation can travel to the USA (assuming they have valid passport and entry visa for the USA) and then take a private car and return to Canada using their landing document as confirmation of their status as a permanent resident. There is no need to apply for a travel document from a Canadian Embassy or Consulate in this situation.

It is of course infinitely more practical to carry and maintain a PR card, but if one’s renewal process is dragging out (as they often do), one does need to feel stuck in Canada. PR card renewal applications can and are often delayed if a person is relying on anything but physical presence in Canada to satisfy the residency obligation. For example, if one is relying on employment outside of Canada so as to satisfy the residency obligation, application processing may take longer than other more routine applications. According to CIC, as of the date this article was written, applications for PR card renewals are taking approximately 88 days to process.

Compared to Canadian passports (processed in 2-4 weeks), which are designed to serve a similar purpose to that of a PR card, i.e. travel, permanent residents are disproportionately under-resourced as compared to Canadian citizens when it comes to international mobility, but again, that is a topic for yet another day.

Ryan Rosenberg is am immigration lawyer and partner at Larlee Rosenberg, Barristers & Solicitors, in Vancouver. Contact Ryan at 604-681-9887 or Ryan.Rosenberg@larlee.com or visit his website at http://www.larlee.com/.

FORMS:

http://www.cic.gc.ca/english/information/applications/menu-prcard.asp

POLICY:

http://www.cic.gc.ca/english/resources/manuals/enf/enf04-eng.pdf
http://www.cic.gc.ca/english/resources/manuals/enf/enf15-eng.pdf
http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
http://www.cic.gc.ca/english/resources/manuals/enf/enf27-eng.pdf

Rosenberg on Immigration

No More Sticker Visas for Some New Permanent Residents

CIC is Going Paperless

Parents and Grandparents: NOT WELCOME TO IMMIGRATE (For now)

Issue

Background

Processing Instructions

New PhD Eligibility Stream under the Federal Skilled Worker Program

Issue

Background

Processing Instructions

Limit on the number of applications to be processed per year

Footnotes

CIC Intake Statistics: Big Time Decline in Intake

Changes to the BC PNP Business Programs

Larlee Rosenberg Sponsors VBOT/Minister Kenney Event

Sponsored by:

Supporting Sponsor:

Death of A Regulator: The Collapse of the Canadian Society of Immigration Consultants

Ryan Rosenberg Testifies in Ottawa at the Request of the Senate

Keeping Permanent Resident Status: Humanitarian and Compassionate Grounds

Permanent Resident Status: What it is and how it is lost

Navigating the PR Card Extension Process

Post Grad Work Permit Program Expanded

Promising Nothing: Immigration Numbers Trending Downwards

BC/Fed Agreement:Temporary Foreign Worker Annex

BC PNP APPLICATION PROCESS Business Skills, Fast-Track

Canada’s Endangered Species: The Federal Skilled Worker

Links to Old Versions of www.cic.gc.ca [1999 to June 2008]

Immigration Trusts: A Primer

Scaring the Ghosts: Canada's Latest Attempt to Regulate Immigration Consultants

The Truth behind the Federal Immigrant Investor Program

Myth Buster: Every Permanent Resident must have a PR Card?