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.

Immigration Tips – Weapons and Explosives Edition

By Author: admin | September 9, 2014

If you’re an Afghan seeking entry to Canada as a spouse, be prepared to answer the following questions:

11. What weaponsand/or explosives training did you receive and when?

12. What weapon did you carry/use?

Note that there is no opting out of the above question (by, for example, asking if you have ever received weapons training) – in other words. Canada’s immigration department presumes that all Afghan boys over 14 years of age and all Afghan females over 17 have invariably had training in arms and possess such weapons now.

Similarly, there is a presumption that all Afghans have been a member of “a special force, security service (KhAD, WAD), police force (Sarandoy, Ministry of the Enforcement of Virtue and Suppression of Vice), prison force, government or tribal militia, or intelligence organization that was not part of the armed forces of Afghanistan,” OR “a member (civilian or uniformed) of the armed forces of any state…”, OR, “a member of a civilian defense group, a resistance organization or an armed resistance group (includes Mujahideen or any group trained for hostile operations inside or outside [Afghanistan].”

If you answer that you were none of the above, the next question on the CIC form asks, perhaps incredulously is, “Explain how you avoided serving with any side during the conflict in Afghanistan” – in other words, the presumption of Canada’s immigration department is that all Afghans were involved in the many conflicts in Afghanistan, absent an explanation of how they avoided partaking in the conflicts.

CIC asks Afghans (and only Afghans) “Have you ever participated in any type of demonstration? If yes, describe the circumstances, location, date and issue.” I don’t think the term demonstrations includes the kinds that take place at Amway or Tupperware parties.

The above questions are arguably relevant for the purpose of admissibility to Canada (the structural presumptions of wrongdoing notwithstanding).

However, CIC also asks Afghans to act as intelligence agents for the Canadian government with the questions, “Have you ever been involved in or observed the detention of civilians or prisoners of war?”, “Have you ever been involved in, or observed, the interrogation of civilians or prisoners of war?”, “Have any members of your family (parents, aunts/uncles, grandparents, sisters/brothers) held a position with a government of Afghanistan? “ and, “Have you ever been involved in or observed transporting prisoners of war or nvoluntary transportation/relocation of civilians?” – in other words, if you want to be reunited with your Canadian spouse, you may have to become an informant on the goings on of Afghan prisoner inventory, or perhaps rat out uncle Abdul who was a low level cook in an Afghan regiment, or else face misrepresentation.

There are thus structural presumptions in the form (officially known as the IMM 3911E). Another question, i.e. “21. What was your father’s occupation in Afghanistan? “ is something of an enigma. Perhaps it is a throwback to those days where there was a presumption that your father’s occupation gave a clue about your character or economic station in life. More likely, this question is meant to triangulate the Afghan applicant’s circumstances and determine if the Afghan applicant is telling a falsehood to Canada’s immigration department. One falsehood in this form would lead to misrepresentation and a ban from Canada for two years.

Interested in more specific immigration or Canadian visa matters? Contact Chaudhary Law Office.

The Bogus concept of Anchor Babies

By Author: admin | September 1, 2014

The Toronto Star cited a ‘secret proposal’ within Canada’s immigration department to remove citizenship rights to babies born in Canada to non-citizens. Similarly, in a struggle to remain relevant in the internet age, the food-porn periodical Toronto Life published a similar article, drenched in alarmist xenophobia about how Canadians are ‘suckers’ to persons from China, Iran, India, Dubai, Jamaica. Canadians are apparently ‘suckers’ for this queue jumping phenomenon of instant Canadian citizenship.

The numbers of babies involved per year (500 out of about 360,000), combined with the fact that some of these babies include offspring of foreign consular staff (who wouldn’t qualify for Canadian citizenship) don’t justify the ban of the ‘anchor baby’.

The immigration department conceded that there was a “significant operational and cost implication” to the recommendation, likely because this would force each province to modify the existing birth certificate regime to account for the country of citizenship. Apparently, the ideology of smaller, efficient government is more nuanced than simply decreasing social assistance and cutting government pensions – increasing government bureaucracy for certain endeavors is somehow worthwhile in this climate of fiscal austerity.

The reality is that children born in Canada to foreign parents confer no benefit to said parents. In theory, the Canadian born child can sponsor their foreigner parent with many qualifications: the said child must be at least 21, and have had a significant amount of annual Canadian income for the previous three years, and await about four to nine years of processing for the foreign parents to actually become Canadian permanent residents (assuming the once-fertile parents can pass the required immigration medical). Thus, about 30 years after the ‘anchor baby’ is born, the parents might be able to become Canadian.

The Canada Experience Class (CEC) – The Pitfalls of Proving Work Experience

By Author: admin | August 18, 2014

Canada experience class applicants are all subject to the minimum requirement to prove one year of full-time paid experience in Canada in an occupation at an appropriate skill level. The CEC program can be seen as relatively straightforward for certain cases. However, there are other cases which may fit a more complicated profile in the eyes of the immigration officer who ultimately looks at a CEC application.

The type of CEC application that would be subject to more scrutiny would be one in which the applicant worked for a company in Canada that had perhaps less than 10 employees. Another point of concern would be if the applicant worked for a company with less than 10 employees and had the same ethnic background as the employer.

Additional scrutiny by the immigration department may result if the above profile matches a Canadian employer of a CEC candidate. The type of additional scrutiny that would take place may include the immigration officer contacting the employer directly without the knowledge of the applicant. The purpose of this contact by one of Canada’s immigration officers would be to confirm that the employer did indeed sign a letter indicating the job duties performed by the applicant.

It is in this type of case where having an immigration lawyer represent the applicant can allay such concerns. First, an experienced immigration lawyer would ensure that the job reference letter conforms to the expectations of the immigration Department, and remains agreeable to the employer. There is some confusion when an applicant for the CEC finds out the immigration department’s specifications for a work reference letter. There is also some confusion about what the employer should write in terms of duties performed; the National Occupational Classification (“NOC”) is meant as a guide but if the employer writes a word-for-word copy of the NOC duties within the work reference letter, then this may cause suspicion about whether the person fulfilled the job duties.

Some guidance about these issues are referenced in a case our office filed at the Federal Court, called Nauman.

Application for Rehabilitation – Long Processing Times

By Author: admin | August 1, 2014

My client (a US citizen seeking an Application for Rehabilitation based on a couple of DUIs 25 years ago), hired me to file an application for rehabilitation. Recently, I submitted a request for an update to the New York visa office given the 10 months that have elapsed.

In response, a Canadian visa officer at the New York visa office sent me a form letter with no file number and no name. In fact, the only way I knew which client the form letter was for, was the fact that I only have the one client whose Rehab application is at that office. Another colleague of mine with an application for rehabilitation received the identical form letter for an rehabilitation application. In other words this form letter has been sent to many other clients, not just my client.

The form letter gave me the list of documents to file (all of which we already submitted) and instructed to submit those documents within 60 days. Since this application was filed august 2013 (almost a year ago), the visa office was saying in colloquial terms something like “Yeah, we got your package we’ve done nothing but if you didn’t give us everything, send it since we’re probably going to look at the case soon”.

10 months for a rehabilitation application poses a difficult situation for a person who has to travel for work purposes to Canada n an ongoing basis. The slow processing names for rehabilitation may necessitate a temporary resident permit application at a Canadian port of entry, but the issuance of a temporary resident permit is at the pleasure of a port of entry officer who’ll ask a person why they want to enter Canada despite having a criminal record. They’ll also weigh the seriousness of the offence committed to see if you’re a safe risk to enter Canada. – not an easy thing to determine without being interviewed (sometimes for a couple of hours) by a Port of Entry Officer.

Authorization to Return

By Author: admin | July 16, 2014

An authorization to return or “ARC” is necessary if you’ve been deported from Canada. One required document is the certificate of departure, which is issued right before you leave Canada as a deported person.

Some individuals end up in a situation where they receive a deportation order and then leave without letting the Canada Border Service Agency know. This means the CBSA has no idea when you departed Canada, making the ARC more difficult for a visa officer to approve.

Other factors that may make an ARC more difficult to approve include the reason you’re entering Canada: is it for an important reason such as to live with a Canadian spouse, or is it less significant like sightseeing for a couple of weeks? The latter situation would be more of a challenge to get an approved ARC.

Similarly, are you well established in your home country with a good job and/or a respectable amount of assets, or are you living on the economic edge, just scraping by? The amount of establishment in your home country is a factor considered by a visa officer in an ARC.

Complicating factors may include if you delayed your deportation, or if it was necessary to be detained by the immigration authorities before being deported.

With the increase in sharing of information between governments of developed countries, a deportation record in your file may affect your entry to other developed countries such as Australia, the UK, USA and New Zealand. An ARC may help reduce the negative impact of a deportation when seeking entry to other countries.

Canada’s New Citizenship Law: Protecting Against Terrorism

By Author: admin | June 24, 2014

Canada’s new citizenship law received final passage on 2014-06-20 . It includes the ability to revoke citizenship from persons who have dual citizenship and are convicted of serious crimes such as terrorism. The timing of this law, coinciding with a Canadian citizen fighting with a terror group in the Middle East and burning his Canadian passport could not be better; on the face of such extremism, the law could be seen as a welcome and necessary defence to the scourge of terrorism. In fact, it is not.

The key problem with the new citizenship law is the creation of at least two classes of citizenship: Canadians born in Canada and with no other citizenship, and Canadians who have another nationality (either directly or via their parent or spouse). In other words if you’re Canadian born, and your parents and spouse are Canadian born, you are free to be a terrorist/fund a terrorist group, and advocate for terrorism to your heart’s content, and never be deported/banished from Canada.

On the other hand, if you have a parent or spouse with citizenship from another country, and are a convicted terrorist, your Canadian citizenship can be revoked and you may be deported to a place where you are theoretically entitled to citizenship. This will create stateless persons, as other countries’ laws on citizenship may be vague or inconsistently applied. The recent exampleDeepan Budlakoti  a person born in Canada whose parents were from India. Having led a life of crime in Canada, his Canadian citizenship being stripped on a technicality, he is limbo because India does not want him. Can you blame India? Why would they want convicted criminal who was born and raised in Canada sent to them?

Similarly, Canada has opposed the return to Canada of Canadian citizens convicted of crimes in the USA. It is a natural reaction, designed to protect the Canadian public. Perhaps the Canadian government was emboldened by the success of deporting many permanent residents of Canada back to the Caribbean, despite being raised in Canada. The pugnaciousness of such deportations can be mitigated with a sunny announcement by the Honourable Minister Jason Kenney celebrating Jamaican Diaspora day.

The law of banishing people passed parliament so easily because who would reasonably be against keeping terrorists in Canada? The Canadian Bar Associations opposition, buried in distinctions about “classes of citizens” gets easily drowned out by the Immigration Minister labeling lawyers as associating with “terror fundraisers”.

The discussion of terror presumes that terrorists are exclusively from “those countries” and are “them” or the “other”, and not “us”, and do not belong here, in Canada. The reality is of course not so clear, but misperceptions persist, such as when in 2009 security personnel in a German Court room reflexively shot the wrong person when trying to stop a murder that was taking place in during the court hearing (the murderer was an ethnic German immigrant from Russia , and the security personnel shot the victim, an Egyptian).

The Canadian government has signed treaties and hence have an international obligation to prevent statelessness. For that reason, significant portions of Canada’s citizenship laws will be challenged as unconstitutional. This will keep lawyers busy. Unfortunately, such laws, badly drafted by the government, will also cost the Canadian public who will pay for Department of Justice lawyers to defend these laws.

Discussion, Respect, Courtesy When Debating Proposed Changes to Canadian Citizenship

By Author: admin | June 9, 2014

Apparently to Canada’s Immigration Minister Chris Alexander, immigration lawyers are “activist lawyers” – attempting to drum up business by promoting the interests of convicted terrorists and serious criminals over the safety and security of Canadians by debating
proposed legislation to change Canada’s citizenship laws.

The Federal Government’s disdain for persons with specialized knowledge, such as scientists discussing climate change, professors dealing with proposed changes to prostitution laws, or the Supreme Court of Canada on the matter of who to select as a judge, or legal experts on the ill-fated attempt to reform the senate , or government researchers regarding foreign policy in the Ukraine, or privacy experts on who should be appointed Privacy Commissioner, is meant to label those who disagree with this government as ‘special interest groups’ who want to entrench their financial well-being by keeping the status quo. It is meant to ignore the fact that persons with specialized knowledge often are concerned with what are the best interests of the public.

Career politicians (i.e. those who have had little experience working in the private sector) may not know what immigration lawyers do, perhaps confusing them with real estate lawyers operating in a sleepy town; immigration lawyers argue, and advocate on behalf of their clients often in adversarial settings.

The Canadian Bar Association’s take on the proposed citizenship changes was measured and even agreed with some of the proposed streamlining of the law, such as defining what constitutes ‘residency’. It admittedly, disagreed with other changes. Some of proposed changes to Canadian citizenship will create stateless people, which violates UN conventions of which Canada is a signatory.

It may be hard to believe but the Canadian Bar Association was in some respects acting against the financial interests of immigration lawyers by opposing much of the proposed citizenship changes. For example, one of the citizenship proposals is the “Intent to Reside in Canada if Granted Citizenship.” This proposal if passed, will create a great deal of litigation at the Federal Court (good for immigration lawyers, bad for the public who would have to fund government lawyers to defend the badly drafted law)

Clients with some travel history outside of Canada would fear a rejection of their citizenship, and will face higher scrutiny and enforcement by citizenship officers (good for immigration lawyers who would be hired to defend against such government enforcement) . Such clients may be interviewed by the citizenship department and would want to hire an immigration lawyer to accompany them.

The higher scrutiny would result in delays processing all citizenship cases, both simple and complex (good for lawyers who would be hired to expedite the process, bad for the run of the mill citizenship applicant whose ordinary case would be delayed by government bureaucrats focussing on the more complex citizenship cases).

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I was born and raised in Toronto, Ontario Canada. I am an accomplished author and lecturer and am consulted by the media and other immigration lawyers and consultants on immigration matters and challenging immigration cases, appeals, and federal court matters.

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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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