Express Entry – Immigration [for] Canada? No, for The Canadian Employer

By Author: admin | January 26, 2015

The immigration department’s Express Entry system has been in effect since January 1 2015.  It seeks in incorporate all existing economic immigration categories under one umbrella.  The categories include the Federal Skilled Worker Program, some Provincial Nominee applicants, the Canada Experience Class, and the Federal Skilled Trades category. 

To apply under the Express entry program, you must qualify under the criteria for one of the categories above.  For example, a Federal Skilled worker applicant must achieve the requisite 67 points, and an CEC applicant must have at least one year of work experience in Canada in a suitably skilled occupation.

However, despite fulfilling the criteria of the long-standing programs above, the Minister of Immigration reserves the right to reject an applicant.  The Minister uses a Comprehensive Ranking System on top of the already existing criteria to assess an applicant positively.  The purpose is to allow the Minister to reserve the right to pick applicants with the highest chance of economic establishment in Canada, as defined  by in large part by the short term needs of Canadian employers.  This is an admission that the existing categories don’t produce successful immigrants in the eyes of the Minister, and that the Minister must impose an extra criteria, the Comprehensive Ranking System with the benefit of the private sector, to ensure new economic  immigrants will become successfully established in Canada.  This may keep wages lower for Canadian workers.

The Comprehensive Ranking System  allocates more points in favour of an applicant who possesses a job offer backed by  a Labour Market Impact Assessment or LMIA.  In the absence of an LMIA a candidate must register with Canada’s Federal Job Bank a hope that they are matched by an employer who is attracted to the candidate’s skills and education.

Is the above action legal?  Given a recent Federal Court of Appeal Decision, yes, and further, termination of all of the pre 2008 skilled worker cases is constitutional.  The key element of the new Express Entry system is that the application to enter the Express Entry pool requires no fee.   Under the law, it is not an application, but more akin to a request to file an application.  Many years ago this was known as a pre-application questionnaire.

Thus, when you file an application under the Express Entry system, it is a request to file an application.  What if you embellish or lie on your initial express entry profile, in the hopes that you’ll increase your chances of getting selected by the Minister for permanent residence?  If you lie on your express entry application, then you will be deemed to have misrepresented and be banned from entering Canada for five years.    This would be easily detected at the second stage after being invited to apply and submit documents within 60 days of the invitation.  I suspect many misrepresentations may be based on questionable work reference letters.

On the plus side there are no restrictions in terms of which skilled occupation one may apply under in contrast to the 2013 Federal Skilled Worker program or the Post November 2012 Canada Experience Class system both of which deemed certain skilled occupations as not in demand

The Parent Cap

By Author: admin | January 20, 2015

On January 16, 2015  The website for Canada immigration announced  that the cap or limit of 5000 parent applications has been reached for the year 2015.  The cap, reached in about two weeks, speaks of the significant demand for Canadian children to have their parents settle in Canada as permanent residents. 

Detractors for immigration of parents to Canada cite the drain on Canada’s publically funded health system as a justification to cap the entry of in Canada as permanent residents.  This view presumably relies on statistics regarding the short supply of health services in Canada, and the general perception that elderly people require more medical observation than younger people.

The above views don’t take into account the benefits to Canada that are not measured.  These include the ability of many parents to take care of the children of sponsors who are required to work in Canada.  Although difficult to measure, there is no doubt that the crisis in availability of daycare would be mitigated to some extent if parents can immigrate to Canada.

The above detractors also over emphasize the health drain on Canada’s publicly funded health system, where in fact, elderly Canadians would rather forego expensive institutionalization  near the end of their lives in favour of dying comfortably at home.  If anything elderly immigrant immigrants would be even more reluctant to spending their dying days at a hospital or other expensive Canadian institution but rather, more in favour of residing with relatives.

The fear of medical costs of immigrant parents is also mitigated by the requirement of the sponsored parent to go through in some cases numerous medical assessments by immigration-approved doctors.  Such doctors, beholden to Canada’s immigration department err on the side of inadmissibility in many cases, sometimes unnecessarily

In addition, the children sponsoring the parents are obliged to ensure that the immigrant parents do not partake in any government social assistance for 20 years, which in many cases means until the parent dies.

The CIC website announcement cites the figure of 70000 parents/grandparents being issued residency in Canada since 2012, but said announcement withholds the fact that wait times are obscenely high (anywhere from 5-9 years).  As such, the 70000 persons who were granted immigration status under the family class were leftovers from a backlog that dates back to when the Liberal party was in power.

The same CIC announcement cites the availability of the Supervisa, a kind of compromise, temporary visa reserved for Canadian children whose parents may not want to avail themselves of living in Canada on long term basis  Supervisa holders don’t affect Canada’s health system and as such are favoured over sponsorship leading to permanent residency of parents.

The benefit of a cap on permanent residency for categories such as sponsoring parent is of benefit to immigration lawyers who are hired by appropriately cautious clients who fear – rightfully so – that a failure to have an application properly completed, and filed quickly results in a parent sponsorship case not even getting in the queue.

Canadian Immigration Applicant, You Deserve the Best! (Evidence )

By Author: admin | December 9, 2014

The phrase ‘best evidence’ is used in legal proceedings and refers to the premise “that no evidence was admissible unless it was “the best that the nature of the case will allow“”.  This means putting one’s best foot forward in presenting documents to the immigration department is mandatory whenever possible. 

Common scenarios where this is extremely important are when trying to prove you perform a certain job, possess a certain skill, have acquired a certain amount of savings, have been victimized by a government official, have met the requirement to reside in Canada a certain amount of time, have been in contact with your spouse, and so on.

The often cited case that tries to moderate the above requirement to present the best evidence in a legal matter is the case of Maldonado v Canada (Minister of Employment and Immigration), [1980] 2FC 302, 31 NR 34 (FCA), which asserts that there is a presumption of truth in sworn testimony or an affidavit  However, a recent case basically reiterates that a sworn statement from a client doesn’t establish the truth of what is being sworn to.  In the case of Garcia v. The Minister of Citizenship And Immigration , a Federal Court judge stated:

[17] Moreover, the requirement to attribute truthfulness to an applicant’s sworn statement, asfirst enunciated in Maldonado v Canada (Minister of Employment and Immigration), [1980] 2FC 302, 31 NR 34 (FCA), reflects a policy that exigent circumstances facing fleeing refugeesmay compromise their ability to present corroborative documentation. Conversely, when aclaimant has, or may readily obtain, corroborative evidence in situations where it normallywould be filed with the adjudicative tribunal to bolster the weight of an otherwise bareallegation, it is expected that the party will adhere to the ordinary reliability requirements tointroduce the best evidence in support of their case. If they fail to do so, less weight (or none atall) may be attributed to the statement.

In other words, if it is expected that you may have proof of contacting your wife (e.g. phone bills) then you have to produce those phone bills to support your sworn assertion that you have regular contact with your wife – just swearing in a document, or testifying on the stand that you contact your wife every day may not be enough.

The immigration department provides document lists for the various visa applications to Canada.  With the exceptions of the document lists for Canada Experience Class and the Federal Skilled Worker program, most of the list of required documents are minimal and vague.  Given that vagueness, it is important to consult with a professional such as an experienced immigration lawyer to determine what other supporting documents you may need to prove you qualify for a visa, over and above the basic document list on Canada immigration’s www.cic.gc.ca website.

Misrepresentation on Steroids

By Author: admin | December 2, 2014

As is often the habit of the current government, the announcement about harsher penalties for misrepresentation were published around 4 PM on  Friday, 21/11/2014, at a time when people are least attentive about such serious matters.

Previously, when an officer made a finding that a person committed a material misrepresentation, they were banned from Canada for two years.  Under the recent announcement, the ban would increase to five years.

The announcement regarding misrepresentation was in my view wrongly juxtaposed with an additional but separate issue, relating to banning family members of people who are inadmissible on grandiose grounds such as national security, human rights, or serious criminality.  This is of  an entirely different magnitude when compared to  misrepresentation which can trigger the ban for innocuous things such as failing to input one’s address history properly, or being accused by CIC of hiding a common law relationship, or forgetting to mention a previous rejected visa from 10 years ago.

The announcement does indeed fit the triumphant heading, “Putting the Safety and Security of Canadians First” when dealing with criminals and human rights violators.   On the other hand, increasing the ban for misrepresentation to five years from two will have extensive, harsh consequences to ordinary and vulnerable people such as the separation of minor children from parents, and the deportation of productive permanent residents from Canada – the type who have worked and have never taken social assistance, who may have academically bright children attending a Canadian school.  People to be affected by the ban clearly aren’t in the more odious category of villains cited in the announcement of the Minister.

The announcement stated further, “This change will help deter fraudulent applications and sends a strong message to those who would abuse our system that giving false or misleading information has serious consequences.”The immigration department actively encourages people to ‘self file” visa applications.  In the face of increasingly complex immigration system, it will be self-filing applicants acting in good faith, who will be caught by this lengthy ban.  In other words, there is absolutely no proof that the message of abuse to the system by giving false information will be heeded.

 

No Law, Some Policy for Immigration Work visas Can Lead to Rejection

By Author: admin | November 26, 2014

A lot of laypersons  may be surprised to find out that some work visas are not based on law but on policy.  Policy is the least strong in the hierarchy of Law/Regulations/policy.   Some work permits based on policy include  Post-graduate work permits, Ontario’s Provincial Nominee Program masters/Phd students , and spouses of study permit holders (not to mention the defunct Family Business Job Offer category).

Policies are based on guidelines put out by the immigration department for the benefit of immigration officers.   They don’t have the force of law or regulations.  The Federal Court  rarely opines on the meaning of a policy.  If you’re applying for one of the work visas above, you want to ensure that you know exactly what the policy requires and make sure you comply with those requirements.

It is a huge disappointment for a study permit holder, having spent a significant amount of funds on tuition and living expenses be faced with a refusal based on not fitting the policy.  If you have an unusual situation that may not clearly fit the policy, you should realize that you only have one shot at some of these work visas and once refused, the opportunity to re-apply is severely limited if not impossible.

For example, if you failed courses while studying, or suffered an academic suspension, it may not be clear if you are eligible for a post graduate work permit.  The policy is below:

The student must have studied full-time at a Canadian university, community college, CEGEP, publicly funded trade/technical school, or at a private institution authorized by provincial/territorial statute to confer degrees (but only if the applicant received the credential in a program of study leading to a degree as authorized by the province and not in all programs of study offered by the private institution).

 

  • •Studies must have taken place at a Canadian institution in Canada. Distance learning from outside or inside Canada does not qualify a student for this program.
  • •The student must have completed and passed a full-time course of study or program lasting at least eight months. Whether they received a “degree”, “diploma” or “certificate” is not an issue.
  • •The work permit application should include evidence that the student has completed the program or course of study. This may include a final transcript, letter from the institution or the formal notification of graduation.
  • •The application must be submitted within 90 days of formal written notification by the institution that they have met the requirements of the course of study or program. Students who have evidence of program completion may apply for the work permit before the formal notification. Calculation of the 90 days begins the day when the student’s final marks are issued or when formal written notification of program completion is received, whichever comes first.

 

  • •The student must still be in possession of a valid study permit at the time of application.

Specific eligibility criteria

  • •If the program of study is two years or more, the student would be eligible for a three yearwork permit.
  • •If the program of study is less than two years but at least eight months, the student would be eligible for a work permit lasting for a period equal to the duration of their studies. The validity period of the work permit must not be longer than this period. For example, if the student graduated from an eight-month certificate program, they are only eligible for a work permit of eight months’ duration.

Exception: Students holding a one-year graduate degree from a provincially accredited post-secondary  educational institution in Canada (pursued full-time) after having obtained, within the prior two years, a degree or diploma from an accredited post-secondary educational/training institution will qualify for a three year work permit. This exception also applies to students who have left Canada temporarily between the graduations.

Its best to have a competent lawyer review your situation and determine if you aren’t sure about whether you are eligible for a work permit.

 

International mobility and labour market impact assessments

By Author: admin | November 18, 2014

I recently attended a seminar on the “International Mobility” seminar, dealing with the entry of Foreign Nationals into Canada as temporary foreign workers.  The assessment of such workers has evolved.    Applications for Labour Market Impact Assessments, formerly known as Labour Market Opinions is down 74%.  Canada’s Immigration  Lawyers are too frustrated dealing with the progressively named Employment and Social Development Canada (ESDC), the department that assesses whether there is a need for a temporary foreign worker.  To avoid that department, they instruct workers to apply for a work permit at the port of entry. 

Given the difficulties with ESDC, ports of entry are being approached with more work permit applications.  The problem is that there are not many categories one can avail themselves of the port of entry.  These categories generally include “intracompany transferee”, and “significant benefit”, as well as work permits allowed under reciprocal trade agreements such as NAFTA.  Port of entry officers seem to be preoccupied with issues such as the “prevailing wage” for a job in Canada, something which they should not be preoccupied with under NAFTA.

The intracompany transferee program is getting blurred by port of entry officers with the criteria for labour market impact assessments.  There are two types of intracompany transferee categories: specialized knowledge workers, and executive / senior management; some officers at ports of entry are questioning whether those persons with specialized knowledge are really necessary, and whether that specialized knowledge is available in the Canadian labour market  – this should not be posed by port of entry officers, especially in cases where there is proprietary knowledge that the foreign national is instructed to keep within the Canadian branch of the company.   Similarly, on the matter of Senior management port of entry officers are querying whether an executive is an executive (i.e. is the position one that can be held by someone else in the company, or if it not so widely held).

No doubt, there are negative economic consequences to Canadian employers if the movement of specialized knowledge workers cannot be facilitated.  For this reason, some foreign nationals seek entry under the “significant benefit to Canada” category.  This often consists of a foreign supervisor tasked with facilitating work for a significant amount of other Canadians which will maintain employment for Canadians.  This could also consist of a famous musician or actor providing spin-off benefits to the local economy – not a huge category.

There does exist in “temporary foreign worker unit” which is supposed to take the complex work off the hands of the port of entry officers and into the hands of presumably more knowledgeable workers at ESDC, but the processing time is such that Canadian employers are turned off by the slowness of the result and opt for the riskier port of entry route.

If you want to minimize the risks, and weigh the pros and cons, contact me.

 

 

Stop the Polygamy!?

By Author: admin | November 10, 2014

The proposed law, the alarmist and shrilly titled “Zero Tolerance for Barbaric Cultural Practices Act – Addressing Polygamy” will no doubt be a Great Tool for officers to refuse applications on the basis of misrepresentation (if, for example, a man fails to declare his polygamy to an officer thus leading to a ban from Canada or a loss of permanent resident status).  The title as it stands pits the civilized Canadian immigration officer applying the soon to be ‘law of the land’ against the external barbarian who possesses quaint and misogynist customs.

In fact, the law as proposed may make women more vulnerable by barring their entry to Canada – women who may want to be liberated from a polygamous relationship effectively blaming  the victim, i.e. the vulnerable woman who is the subject of the polygamy.

Some question about how many applicants  for immigration to Canada this would actuallyaffect since most polygamists (at least from the Middle East) tend to be too old to immigrate to Canada (polygamists generally partaking in the practice only after spending many years to accumulate the required wealth to do so).

Another proposal includes changing the age of marriage across Canada from 12 to 16 which would be more of a housekeeping change in the law that would effect consistency  to the age of marriage; not vitally urgent, given the small number of such marriages that have taken place in recent times, but certainly laudable in a low-adrenaline, bureaucratic way.

One may have concern whether there is a need to have more stringent legislation on the subject of polygamy.  One of the rare cases of immigration litigation on the topic confirmed that the law as currently drafted was sufficient to address the concern of importing polygamy into Canada.  I only found 9 cases in Canadian immigration law where this was an issue and all squared the issue away, prohibiting polygamy under the currently drafted immigration and criminal laws of Canada.  The immigration department admitted as such in its current website “Those guilty of these crimes are severely punished under Canada’s criminal laws”  (i.e. Canada’s current immigration and criminal laws.)

One question is whether the scope of the proposed legislation will capture a previous (but subsequently terminated)episode of polygamy hence rendering many more people inadmissible to Canada (in other words  former polygamists).  This could also affect situations where there are children of a polygamist from two different mothers who may be separated from a mother if immigration is being considered.  This makes more work for the government (who have to train officers to scrutinize applications  in a procedurally fair manner without too much profiling) but will mean more work for Canada’s immigration lawyers.

 

The Criminal Charges for failing to meet your Obligations as a permanent resident.

By Author: admin | October 28, 2014

A person was charged withcriminal misrepresentation under IRPA as well as under the Citizenship Act for providing false information regarding his days in Canada when applying for a Permanent Resident (PR) card renewal application.  He was also lodging a Canadian citizenship application.(He had two passports, one for showing to border authorities outside of Canada and another one to present in support of his PR card and Canadian citizenship application).  He was caught with both passports on returning to Canada leading to criminal charges and also necessitating an appeal at the Immigration Refugee Board Appeal Division.

Committing Criminal representation under 124(1)(a) of the Immigration Refugee Protection Act can lead to a fine of $50,000, or jail time of two years.  It strikes me as double jeopardy to criminally charge a person for failing to be physically present in Canada for 730 days in a five year period, in addition to forcing losing Canadian permanent resident status.  It’s conceivable that a charge of criminal misrepresentation can also be lodged against persons whose use fake government documents in the context of trying to prove a marriage, i.e. criminal misrepresentation in a family class sponsorship.

 

This forces an accused person of defending charges at a criminal court in Canada, and also necessitates an appeal at the Immigration Refugee Board (Immigration Appeal Division).  This could lead to weird/inconsistent results if the IAD makes a finding that Humanitarian & Compassionate grounds should allow the accused to keep his permanent resident status, and on the identical facts, the criminal court makes a finding of criminal misrepresentation (thus rendering the person criminally inadmissible to Canada).

 

 

It would be preferable to only ‘write-up’ a person under s. 44 of the Immigration Refugee Protection Act and not also proceed criminally, despite the extra work this creates for Canadian immigration lawyers.

Renewing a Permanent Resident Card – Which Applicants Get the “Special Treatment”

By Author: admin | October 22, 2014

One of our clients filed a PR card renewal application.  He met the days i.e. a minimum of 730 in the past five years. However, part of the basis for his meeting the minimum 730 day threshold  included being employed full-time abroad for a Canadian based company – in other words, working full-time for a Canadian company outside of Canada and hence having less than 730 days of physical presence in Canada.   This adds complexity to a PR card renewal, especially if contrasted to a simple case where a person was clearly living, working , spending money Canada for two years (this latter scenario being easily presented  by submitting, for example, proof of pay stubs from a Canadian employer).

Canada’s immigration officers are instructed to view the full-time Canadian employment abroad exemption with much scepticism, or are at least instructed to assess such applications carefully, in a more time-consuming manner.  The time-consuming assessment entails a CIC officer asking for a residency questionnaire (which includes a request for irrelevant information such as where a person has been residing after the initial filing of the PR Card renewal application).   In addition, besides asking for a residency questionnaire, there is an easy way for an officer to delay the processing of an application – starting the sort of Merry-Go-Round of an officer requiring an applicant to meticulously file a big package of forms and supporting documents at the start of a case, and then a different officer requesting the documents again (when in fact, in many cases such as citizenship applications, no officer has not even looked at the initial package of forms/documents).

An applicant for a PR card renewal  who has worked for a Canadian-based company and shares the same ethnicity of the Canadian employer will face more obstacles in renewing a PR card.  (e.g. a Chinese PR card holder being employed by a Chinese-Canadian company, being despatched to work in China).

By contrast, a visitor visa exempt PR card holder (e.g. citizens of the USA, Australia, New Zealand, the UK and some of the EU) are generally subject to less scrutiny when renewing their permanent resident cards even if they are working for a Canadian company outside of Canada.  Such TRV exempt persons are relieved of the obligation to file a travel document application if their permanent resident Card has expired, by simply entering Canada on the strength of their visitor-visa exempt passport.  As a consequence, the likelihood of such persons losing their permanent resident status is significantly lower than those persons whose passports are associated with requiring a visitor visa to Canada.

Those PR card applicants who end up applying for a travel document  at a visa office outside of Canada (due to their failure to possess a 1st world passport) most often lose their permanent resident status upon rejection of the travel document application and must make their case to regain their permanent resident status at the Immigration Refugee Board (IAD).

2014-10-14 – “ Immigration Support ”

By Author: admin | October 16, 2014

CIC has a large website with many forms for almost all types of application, as well as a guide for the appropriate supporting documents and the appropriate filing fee.  Once your application is filed however, CIC  makes it purposefully difficult for professionals to get information.   Ordinary people don’t know how to contact CIC beyond calling the call centre (at 1 888 242-2100).  Clients who reside outside of Canada cannot even access the call centre. Similarly, if a foreign national outside of Canada is seeking information about an application such as officer file notes, said foreign national can’t make an access to information request from outside of Canada.

Clients who are inside of Canada (e.g. work permit holders or Canadian sponsors of foreign spouses) can’t normally contact the call centre if they work normal business hours, given the  8 a.m. to 4 p.m. operation of the call centre.

Applicants or clients may have a “MY CIC” account, but the information contained therein is one-way : CIC emails you an instruction to check your MY CIC account.  The instruction most often tells you to produce a document and/or a form within 30 days; you can’t leave a message with a query such as a time frame for completion of a case through MY CIC.

Lawyers have a special email to query the status of an in-Canada application, such as a visa renewal or in-Canada marriage case.   I recently inquired about the status of a PR card application renewal – the terse  email reply  (i.e. the file was moved from Sydney Nova Scotia to the Ottawa office and no time frame given for file completion), plus the delay in obtaining a response (i.e. about 7 weeks) was disappointing for the client.

Our office sometimes dials the call centre (thank goodness for speakerphones which allow multitasking while being on hold for 15-60 minutes).  When we do call said call centre, we have to go through account verification that is a pain especially since I’ve had agents just say “you’re not authorized to discuss this application”, but then  later,  I’ll speak to another agent and they say “oh yes, you are authorized.”Some licensed representatives circumvent this by pretending to be the applicant seeking the visa.

This issue of immigration officers in occultation even affects Members of Parliament whose work in urban ridings typically consists of finding out the status of a constituent’s application, given the closing of many CIC offices in Canada.

The response of CIC is natural; if you cut staff and close offices access must be restricted.  Accountability, (not to mention delay) is often a casualty of such a course of action.

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Salam Max

MY spouse [xxxxxx] has received her passport back with the immigrant Visa and landing papers and other related doxs. All of the dox are attatched for your references. congratulations and Thanks Thanks Thanks

-Hamid



Hello again Max

I just wanted to thank you again for your exertions yesterday and for all your preparation leading up to the hearing. I felt that I was well represented and that you articulated the issues and the argument for my case very clearly. Look forward to hearing from the judge next. Hope you are feeling better today,

-Anne Marie


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