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.

Express Entry 2015: Doomed to Fail

By Author: admin | October 7, 2014

For the past year and a half (I’m writing this in October 2014), the Federal Skilled Worker System has imposed a requirement that foreign credentials be assessed in comparison to Canadian educational credentials. Given the reasons include the Canada’s aging workforce and an aspiration to create high-tech jobs in Canada. The change was also implemented due to recent FSW immigrants’ failure to acquire quality jobs such as those related to their pre-Canadian work history.

Perhaps employers’ preoccupation with credentials (where a Master’s degree is the new Bachelors degree) have had a hand in preventing skilled immigrants from establishing in Canada. Similarly, efficiencies through technology have no doubt removed many less skilled jobs from North America. Similarly employers’ offloading of specialized training to (pretty well) nobody virtually assures large employers hire from within, (such employers typically place a token job ad for the purpose of displaying faux-competition). By the same token, I’m not sure what impact raising Canada’s retirement age will have on immigrants’ ability to economically establish well in Canada with aged persons clinging to the labour market, shutting out first timers such as recent Canadian graduates as well as new immigrants.

The Express Entry system, due to be unveiled in January 2015 aims to be even more responsive to employers’ needs. Employers will register for access to the “Pool” of immigration applications and pick a candidate who will be processed on an expedited basis, thereby ensuring Canada’s labour market needs are being served by Canada’s immigration Program – sounds great!

In reality, the Express Entry system will serve no one, aside from those applicants with standing job offers from Canadian employers due to implantation problems; witness the current CIC online system for lawyers and licences consultants, where files disappear, and it takes hours to simply upload files, supporting documents are arbitrarily removed, and at least one lawyer has been arbitrarily booted off the system with a message:

“This is to advise you that we have received a request to cancel the Authorization of a Paid Representative that names you as the former authorized representative. Your name and CIC ID have now been disassociated from the client’s application(s) as listed above. As a consequence, these applications submitted by you will no longer be visible to you through the Authorized Representatives Portal.”

Adding employers to the mix, without a easy to use online system will compound frustration. Thus, the Express Entry system will die a quiet death after about one and one half years and be replaced with the Federal Skilled Worker program restricted by a list of occupations, or skewed in favour of higher educational credentials (e.g ascribing greater weight to two complementary credentials such as accounting plus IT), and be buttressed by a more robust Canada Experience Class where a job offer has been obtained and the would-be immigrant has already taken up said job offer. The latter program worked so well and no reason for curtailing it was ever given by Canada’s immigration department.

Canadian Immigration – Federal Skilled Workers – Education Factor

By Author: admin | September 29, 2014

A client (through his immigration consultant) had a question about credential evaluations and how Canada’s immigration department (“CIC”) uses said assessments in Federal Skilled Worker applications for permanent residence.

Said client had a bachelor degree from a “Deemed” university in India; theuniversity shows up on the list of acceptable universities by the Indian government’s UGC (University Grants Commission). The UGC recognizes educational institutions in India to be accredited and in accordance with local educational standards.

World Educational Services is one of three authorized third parties CIC uses to assess education under Canada’s Federal Skilled Worker Program.  WES conducted the evaluation of the client’s education as follows:

“Canadian Equivalency: Bachelor Degree from non-recognized institution.”

CIC in turn refused the application stating that the education could not be recognized due to the evaluation by WES wherein WES stated that the university was a “non-recognized institution.”

A review of the current Immigration regulations andcurrent Immigration Refugee Protection Act reveals nothing about whether the university must be ‘recognized’ by WES.  On the other hand, the client went to an accredited and acceptable school.  Was CIC right in giving no points for this client’s university education despite its equivalence to Canadian standards?  No.

The Immigration Refugee Protection Regulations make clear that education is to be assessed by a third party such as WES and a visa officer has no discretion to assess the quality of the education.    In the case I reviewed, WES declared the institution in question a “non recognized institution”, yet also said it was equivalent to a Canadian bachelors degree.

I could not find anything in Canada’s immigration laws related to whether points should not be awarded if the education is a “non recognized institution”  - rather the regulations are preoccupied with equivalency to a Canadian educational credential.

The Immigration Manual at OP6C states, “The ECA report will also include an assessment by the organization or institution of the authenticity of the completed foreign diploma, certificate or credential. Refer to section 11.1 regarding concerns with respect to the authenticity of foreign educational credentials.”

The above manual excerpt allows a visa officer to explore a candidate’s education only for the purpose of authenticity.  Authenticity of the credential was not an issue in the case I reviewed.

ss 75(4)(a) of the regulations mentions

(a) if the organization or institution has the recognized expertise to assess the authenticity of foreign diplomas, certificates and credentials and their equivalency to Canadian educational credentials;…

Interestingly enough, the May 2013 Immigraton Refugee Protection Regulations removed the following from Canada’s immigration laws:

 

“educational credential”
« diplôme »

“Educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue.

It would thus appear that the issue of whether the school is recognized by an authority is not relevant and the refusal appeared to take into account an irrelevant consideration. This would appear to be an error.

Sponsor versus Sponsored – A Balance of Power in the Current Regulations?

By Author: admin | September 23, 2014

For spousal sponsorship applications filed on or after October 25, 2012, a sponsored person may now be subject to a two-year period of “conditional” permanent residence, running from the day after their permanent residence is granted.  The conditional permanent resident visa won’t apply if at the time the sponsorship application was filed the marriage/common law/conjugal relationship was more than two years or, the sponsor and sponsored spouse had a child together.

If either of the above don’t apply then the sponsored person would be subject to the condition of residing with the sponsor for two years or else lose permanent resident status.  Accompanying children of the sponsored person would also lose permanent resident status.

To help reduce the potential imbalance of power, there are some common-sense exceptions such as if  the sponsor has died during the two-year period of conditional residence and second, where there is evidence of abuse or neglect from the sponsor, or failure by the sponsor to protect from abuse by a relative of the sponsor.  However, the two year condition puts the sponsor in a position of power over the sponsored possibly putting the sponsored at risk of abuse during the two years.  This is particularly so where the sponsored spouse may be unable or unwilling to allege the abuse, (unable to, for example, due to a language barrier, and unwilling to, for example due to the possibility of being forced into a shelter for abused women).

On the other hand, the sponsor may be at a financial risk due to the requirement Under sections.13.1 to 13.2 of the IRPA and section s.131-132 of the Regulations, to reimburse thegovernment for any benefit provided to the sponsored person during the three year period of sponsorship.  Thus, if the sponsored spouse goes on social assistance within the three years, the sponsor must repay the social assistance used by the sponsored spouse.

The financial risk to sponsors has no remedy; the sponsored spouse may break-up with the sponsor due to incompatibility shortly after landing, may never get deported, and then take social assistance for three years, leaving the sponsor on the hook for said social assistance.  To streamline egregious cases (and effectively reduce the amount of social assistance money the sponsor would have to repay), Canada’s enforcement department may employ more CBSA officers to investigate tips by jilted sponsors, perhaps through an official tip telephone line or email.  Said tips, if acted upon quickly may reduce the amount of social assistance money taken by the fraudulent sponsored spouse.

Sponsors should have regard to the comments in the CIC letter that approves the sponsorship:

 

Reminder – Your undertaking is an unconditional promise of support

The undertaking you signed is an unconditional promise to financially support and provide basic requirements for your sponsored relative(s). This undertaking is not broken by such changes as the granting of Canadian citizenship, divorce, separation, relationship breakdown, moving to another province, or a change in your financial situation. Your obligations as a sponsor begin as soon as your sponsored relative and, if applicable, their accompanying family members become permanent residents of Canada. This undertaking cannot be cancelled once permanent resident visas are issuedto them.

The End of the Federal Skilled Worker Program – Investor Program Doomed

By Author: admin | September 15, 2014

With not much fanfare, the Federal Court of Appeal dismissed the case of Shahid (aka Tabingo) v. Minister of Citizenship & Immigration.   This case stated that the Minister of Immigration was permitted to terminate the thousands of skilled worker applications that had been languishing for years with the immigration department.  It also stated that when terminating a skilled worker application,  there isn’t any significant ambiguity or discretion used by an officer in light of s.87.4(1) of the Immigration Refugee Protection Act:

87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

The Court of Appeal stated that is ok to terminate the applications since Canadian immigration law allows the Immigration Minister to prioritize immigration’s economic benefits to Canada (and consequently terminate the old applications which were lodged based on Canada’s older economic goals).

The Federal Court of Appeal also said that is ok if the law at 87.4(1)  to terminate the skilled worker applications is retrospective (i.e. enacted with  the effect of terminating FSW applications filed before 87.4(1) came into effect), given that 87.4(1)  clearly was designed to be retroactive.

The decision acknowledged that there was a slowness of processing applications from skilled worker applicants hailing from Asia and Africa in comparison to applicants from Europe and America.  However, the Court of appeal accepted that the Immigration Minister has discretion to allocate resources pretty much however the Minister deems suitable to achieve Canada’s immigration goals.

The decision acknowledged the financial loss of the FSW applicants who paid filing fees and perhaps fees for medical examinations and courier fees when lodging their skilled worker applications.  Nevertheless, such losses don’t trigger a ‘right to life, liberty and security of the person’.

This doesn’t bode well for investor applicants whose cases were also terminated by legislation similarly drafted (probably more clearly drafted then the 87.4(1) of IRPA.   The investors lost at the Federal Court, but have a case pending at the Federal Court of Appeal.

Not much media coverage of this decision took place despite the fact that about 280,000 applications were confirmed to have been properly terminated under Canada’s immigration laws by this recent decision at the Federal Court of Appeal.

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