Recent Changes to the Express Entry’s Comprehensive Ranking system

By Author: Admin | November 29, 2016

Recent Changes to the Express Entry’s Comprehensive Ranking system

Express Entry new Comprehensive Ranking Chaudhary Immigration Canada Law

Since November 19, 2016 our offices have been receiving a lot of inquiries with regards to the recent amendments to the Ministerial Instructions regulating the Express Entry points and profiles. This article will attempt to highlight the recent changes that were brought to Canada’s Express Entry system.

The changes that were enacted in November 19, 2016 are very significant and they address a lot of the short comings of the old system.

Reduction of a qualifying job offer point

The old system favoured candidates who had a qualified offer of employment by conferring 600 point to the candidates who had a qualifying job supported by a Labour Market Impact Assessment (LMIA). After November 19 2016, the government has lowered the points awarded to qualifying job offers as follows:

  • 200 points will be awarded to those with an “eligible” offer in an executive or senior managerial position (NOC 00).

NOC 00 occupations include legislators, senior government managers and officials, senior manager of financial, communications and other business services, Senior managers of health, education, social and community services and membership organizations, senior managers of trade, broadcasting and other services not elsewhere classified on the NOC, senior managers of construction, transportation, production and utilities.

Qualifying Job offers no longer limited to LMIA-based Job Offers

Job offers are no longer limited to LMIA’s, candidates may be eligible if they have a treaty work permit, have a work permit under the Intra-Company transfers or Significant Benefit work permit or any work permit issued under the authority of subsections 204(a) or (c) or section 205 of the Immigration and Refugee Protection Regulations.

The candidate must however be working for the employer making the offer and must have been working for that employer for at least 12 months full-time prior to submitting the application. This extension of the eligible job offers does not include candidates who can work without a work permit or Post-Graduation work permit holders.

Canadian degrees get more points

Although the old system granted significant points to candidate’s who had a high level of education, the new scoring system grants the following points to candidate’s who have a Canadian degree:

  • 15 points for a Canadian post-secondary degree of 1 or 2 years
  • 30 points for a Canadian post-secondary that is either:
  • 3 years or longer in duration
  • A Master’s degree
  • A PhD degree, OR
  • An entry-to-practice professional degree for a NOC level A occupation for which licensing by a provincial regulatory body is required

These points are not cumulative. The extra points granted for a Canadian degree, combined with points awarded for a provincial nomination and for an arranged employment is capped at 600 points. This implies that a provincial nomination which grants a candidate 600 points will not allow the candidate to claim the extra Canadian education points.

Time Limit for Express Entry, Invitation to Apply

The Invitation to apply time limit to apply has been extended to 90 days instead of 60 days.

Conclusion

We have seen the most important amendments brought to the Express Entry System. These are:

  1. The reduction of a qualifying job offer from 600 points to 200 for skill type NOC 00 and 50 points for NOC jobs at the A and B level.
  2. Job offers are no longer limited to LMIA’s and may include any work permit issued under the authority of subsections 204(a) or (c) or section 205 of the Immigration and Refugee Protection Regulations.
  3. Candidate’s with a Canadian degree get 15 to 30 points more in some circumstances
  4. The time limit to apply for an invitation to apply has been extended to 90 days instead of 60 days.

To see the new updated Express Entry point system, click here.

To book a consultation to have a professional assess your eligibility for the Express Entry profile and / or advise you on any Immigration matters contact the Chaudhary Law Office today.

PART III: Express Entry – The Canadian Experience Class

By Author: Admin | October 21, 2016

Immigration Canada Federal Skilled worker program Chaudhary Law

Last week we discussed about the Canadian Skilled Trades Program. This week we will be presenting The Canadian Experienced class which is another type of application for permanent residence under the Economic Class.

Reminder of what is an Express Entry Profile

Express Entry is an electronic application management system to manage the following federal economic programs for immigrants:

Potential candidates will complete an online Express Entry profile. This is a secure form that they will use to provide information about their:

  • skills,
  • work experience,
  • language ability,
  • education, and
  • Other details that will help us assess them.

Those who meet the criteria of one of the federal immigration programs listed above will be accepted into a pool of candidates.

The Canadian Experience Class

The Canadian Experienced Class is another class of persons who are selected on the basis of their ability to become economically established in Canada, their experience in Canada and their intention to reside in a province except Quebec which has its own program (Quebec Experience Program).

To qualify a temporary foreign resident must meet the criteria set out in section 87.1 (2) of the Immigration and Refugee Protection Regulations that they have gained the following required work experience:

Applicants must as all the other categories seen thus far take a language test to show proficiency in one of the Canadian Official Languages (English or French), and the test result must be less than 2 years old on the date the application is submitted. You must also:

  • meet the minimum language level of Canadian Language Benchmark (CLB) 7 for NOC 0 or A jobs OR Canadian Language Benchmark (CLB) 5 for NOC B jobs, and
  • take a language test approved by Citizenship and Immigration Canada (CIC) that shows you meet the level for speaking, listening, reading and writing.

There is no education requirement for Canadian Experience Class. But, if you want to earn points for your education under Express Entry, you either need:

  • a Canadian secondary (high school) or post-secondary certificate, diploma or degree,
    OR
  • a completed foreign credential, and
  • an Educational Credential Assessment (ECA) report from an agency approved by CIC. [The report must show your foreign education is equal to a completed Canadian secondary (high school) or post-secondary certificate, diploma or degree.]

For more information on the Canadian Experienced class visit CIC’s  website by clicking here.

We have seen the requirements for a person to be eligible for the Canadian Experienced class program. This concludes our three part presentation of the various Federal Economic Classes.

For more information: http://www.cic.gc.ca/english/express-entry/index.asp

If you believe you are eligible, would like for us to create your Express Entry profile for you or have any questions relating to Canadian Immigration Law matters contact the Chaudhary Law Office for a consultation.

PART II: Express Entry – The Canadian Skilled Trades Program

By Author: Admin | October 12, 2016

Toronto Immigration Lawyer

Last week we discussed about the federal skilled worker program, this week we will be discussing about The Canadian Skilled Trades Program another type of application for permanent residence under the economic class.

Reminder of what is an Express Entry Profile

Express Entry is an electronic application management system to manage the following federal economic programs for immigrants:

  • The Federal Skilled Worker Program (The Subject of last week)
  • The Federal Skilled Trades Program (The Subject of this week)
  • The Canadian Experience Class (The Subject of next week)

Potential candidates will complete an online Express Entry profile. This is a secure form that they will use to provide information about their:

  • skills,
  • work experience,
  • language ability,
  • education, and
  • Other details that will help us assess them.

Those who meet the criteria of one of the federal immigration programs listed above will be accepted into a pool of candidates.

The Federal Skilled Trades Program

Unlike the Federal Skilled Worker Program, foreign nationals who apply for permanent residence under the Federal Skilled Trades Program to come to Canada are not assessed on a point system. However, there are many similarities to the Federal Skilled Worker Program.

A skilled trade occupation is defined at s. 87.2 (1) of the Immigration and Refugee Protection Regulations (Regulations) as:

87.2 (1) In this section, skilled trade occupation means an occupation, unless the occupation has been designated a restricted occupation by the Minister, in the following categories listed in Skill Level B of the National Occupational Classification matrix:

(a) Major Group 72, industrial, electrical and construction trades;

(b) Major Group 73, maintenance and equipment operation trades;

(c) Major Group 82, supervisors and technical occupations in natural resources, agriculture and related production;

(d) Major Group 92, processing, manufacturing and utilities supervisors and central control operators;

(e) Minor Group 632, chefs and cooks; and

(f) Minor Group 633, butchers and bakers.

To be eligible, you must:

  • plan to live outside the province of Quebec (Note: The province of Quebec selects its own skilled workers. If you plan on living in Quebec, see Quebec-selected skilled workers for more information),
  • meet the required levels in English or French for each language ability (speaking, reading, writing and listening),
  • have at least two years of full-time work experience (or an equal amount of part-time work experience)Footnote * in a skilled trade within the five years before you apply,
  • meet the job requirements for that skilled trade as set out in the National Occupational Classification (NOC), except for needing a certificate of qualification, and
  • have an offer of full-time employment for a total period of at least one or a certificate of qualification in that skilled trade issued by a Canadian provincial or territorial authority.

To be successful the principal applicant must meet the following language, work experience, and education requirements under the  Regulations.

Language requirements

s.87.2 (3) a) of the Regulations states that following an evaluation by an organization or institution designated under subsection 74(3), they meet the threshold fixed by the Minister under subsection 74(10 for proficiency in either English or French for each of the four language skill areas.

You must meet the minimum language level of

  • CLB 5 (English) or NCLC 5 (French) for speaking and listening, and
  • CLB 4 (English) or NCLC 4 (French) for reading and writing.

You must take a language test approved by Citizenship and Immigration Canada (CIC) and include the results when you complete your Express Entry profile if you are invited to apply for permanent residence.

Work Experience

s. 87.2(3)(b) of the Regulations states that during the five years before an application is submitted, the individual must have acquired at least two years of full-time work experience, or the equivalent in part-time work, in their skilled trade occupation, and must have performed both the actions described in the lead statement and a substantial number of the main duties listed in the National Occupational Classification description of the occupation.

Relevant Employment Requirement

s. 87.2 (3) (c) of the Regulations states that the applicant must have met he relevant employment requirements of the skilled trade occupation specified in the application as set out in the National Occupational Classification, except for the requirement to obtain a certificate of qualification issued by a competent provincial authority. When applying the applicant must meet the relevant employment requirements of the skilled trade occupation set out in the National Occupational Classification, except for the requirement to obtain a certificate of qualification issued by a competent provincial authority.

Education Requirements

There is no educational requirement for this category. However, to earn points under the Express Entry one must have a certain level of education.

Conclusion

We have seen the requirements for a person to be eligible for the Federal Skilled Trades Program. Next week we will see what The Canadian Experienced Class requires if one wishes to become a permanent resident in Canada under the federal economic programs to immigrate to Canada.

For more information: http://www.cic.gc.ca/english/express-entry/index.asp

If you believe you are eligible, would like to create your Express Entry profile or have any questions relating to Canadian Immigration Law matters contact the Chaudhary Law Office for a consultation.

Part I – Express Entry – The Federal Skilled Worker Program

By Author: Admin | September 24, 2016

Part I – Express Entry – The Federal Skilled Worker Program

Toronto Immigration Lawyer

What is the Express Entry Profile?

This week and the next two weeks, The Chaudhary Law Office will discuss the various applications for permanent residence that people who wish to immigrate to Canada may apply for if they are eligible by using the Express Entry profile.

Express Entry is used to manage applications for permanent residence under the following federal economic programs for immigrants:

  • The Federal Skilled Worker Program (The Subject of This Week)
  • The Federal Skilled Trades Program (The Subject of next Week)
  • The Canadian Experience Class (The Subject in Two weeks)

Potential candidates will complete an online Express Entry profile. This is a secure form that they will use to provide information about their:

  • skills,
  • work experience,
  • language ability,
  • education, and
  • other details that will help us assess them.

Those who meet the criteria of one of the federal immigration programs listed above will be accepted into a pool of candidates.

The Federal Skilled Worker Program

To be eligible for the Federal Skilled Worker Program you must:

  • Meet the following work experience requirements:
    • at least one year (1,560 hours total / 30 hours per week), continuous full-time or an equal amount in part-time,
    • paid work (volunteer work, unpaid internships do not count),
    • in the same job,
    • within the last 10 years, and
    • at skill type 0, or skill levels A or B of the 2011National Occupational Classification (NOC). For more information on NOC and skill types visit, http://www.cic.gc.ca/english/immigrate/skilled/noc.asp
  • Meet the Education requirements:

If you meet the above requirements for the federal skilled worker program your application will be assessed based on six selection factors which are assigned points based on a grid system. These factors are:

  • your skills in English and/or French (Canada’s two official languages),
  • your education,
  • your work experience,
  • your age,
  • whether you have a valid job offer, and
  • your adaptability (how well you are likely to settle in Canada).

You will also have to demonstrate that you have enough money to support yourself and your family, which are based on the number of people coming to Canada with you. On the date of this article September 24, 2016 the following amounts are required:

1                              $12,164

2                              $15,143

3                              $18,617

4                              $22,603

5                              $25,636

6                              $28,913

7 or more               $32,191

You do not need to show these funds if:

  • are currently able to legally work in Canada, and
  • have a valid job offer from an employer in Canada.

Section 11.2 of the Immigration and Refugee Protection Act, SC 2001, c 27 which provides:

“An officer may not issue a visa or other document in respect of an application for permanent residence to a foreign national who was issued an invitation under Division 0.1 to make that application if — at the time the invitation was issued or at the time the officer received their application — the foreign national did not meet the criteria set out in an instruction given under paragraph 10.3(1)(e) or did not have the qualifications on the basis of which they were ranked under an instruction given under paragraph 10.3(1)(h) and were issued the invitation.”

the above section allows the government to reject an application after the Invitation To Apply was received  if the Express Entry profile information does not materialize in the subsequently filed application for permanent resident status.

We have seen the requirements for a person to be eligible for the federal skilled worker program. Next week we will see what The Federal Skilled Trades Program requires if one wishes to become a permanent resident in Canada under the federal economic programs to immigrate to Canada.

For more information: http://www.cic.gc.ca/english/express-entry/index.asp

If you believe you are eligible, would like us to create your Express Entry profile for you or have any questions relating to Canadian Immigration Law matters contact the Toronto immigration lawyer Max Chaudhary for a consultation.

Are you a Foreign National in Canada and just graduated?

By Author: Admin | September 15, 2016

Are you a Foreign National in Canada and just graduated?

toronto immigration lawyer

If the answer is yes you might be eligible to the Post Graduate Work Permit that would allow you to work in Canada up to a maximum of three years.

The Post-Graduation Work Permit Program allows students who have graduated from a participating Canadian post-secondary institution to work in Canada. Skills that you will obtain during your employment might grant you skilled work experience that might allow graduates to qualify for permanent residence in Canada.

How do I obtain a Post-Graduation Work Permit?

To obtain a work permit after graduation you must meet the following requirements as stated on the Citizenship and Immigration Canada’s website:

  • Have continuously studied full time in Canada and you must have completed a program of study that lasted at least eight (8) months.
  • You must have graduated from:
  1. a public post-secondary institution, such as a college, trade/technical school, university or CEGEP (in Quebec), or
  2. a private post-secondary institution that operates under the same rules and regulations as public institutions, or
  3. a private secondary or post-secondary institution (in Quebec) offering qualifying programs of 900 hours or longer leading to a diplôme d’études professionnelles (DEP) or an attestation de spécialisation professionnelle (ASP), or
  4. a Canadian private institution authorized by provincial statute to confer degrees but only if you are enrolled in one of the programs of study leading to a degree as authorized by the province and not in all programs of study offered by the private institution.
  • You must apply for a work permit within 90 days of receiving written confirmation (for example, a transcript or an official letter) from your institution indicating that you have met the requirements for completing your academic program.
  • You must have completed and passed the program of study and received a notification that you are eligible to obtain your degree, diploma or certificate.
  • You must have a valid study permit when you apply for the work permit.

In addition you must:

  • Be 18 years of age or older at the time of application
  • Have a valid study permit when you apply for the work permit
  • Have completed a full time program that lasted 900 hours or more (normally eight months in length), leading to a Diplôme d’études professionnelles (DEP) or an Attestation de spécialisation professionnelle (ASP)
  • Apply for a work permit within 90 days of receiving written confirmation (for example, a transcript or an official letter) from your institution indicating that you have met the requirements for completing your academic program
  • Provide a supporting letter from your institution outlining the duration of studies and the program code

You are not eligible if:

  • study in a program that is less than eight months long
  • participate in a Canadian Commonwealth Scholarship Program funded by the Department of Foreign Affairs, Trade and Development Canada (DFATD)
  • participate in a Government of Canada Awards Program funded by DFATD
  • receive funding from the Canadian International Development Agency (CIDA)
  • participate in the Equal Opportunity Scholarship, Canada-Chile
  • participate in the Canada-China Scholars Exchanges Program
  • participate in the Organization of American States Fellowships Program
  • participate in a distance learning program either from abroad or from within Canada or
  • have previously been issued a Post-Graduation Work Permit following any other program of study.

I meet all the requirements for the Post-Graduation Work Permit but my Study permit expired or is about to what do I do?

Apply for an extension if your study permit hasn’t expired yet. If your study permit expires after you have submitted your application for an extension but before you receive a decision on your application, you can stay in Canada under what’s called implied status. That means the law implies you are a temporary resident. That status lasts until CIC decides on your new permit application. However, you must respect the following requirements.

If you did not apply for an extension of your work permit before it expired you should read Citizenship and Immigration Canada’s instructions for restoration of status.

If your temporary resident status has expired, do not apply for an extension as you are not eligible. However, if you wish to stay in Canada after your status has expired you may apply for restoration of status within 90 days of your permit expiry date or leave Canada.

It is important to know  that the application for restoration does not guarantee restoration of student status.  It is therefore critical to apply for renewal of the Study Permit prior to the expiration date.

If you would like to apply for a post-graduation work permit or need assistance with any Canadian Immigration matter contact Chaudhary Law Office.

Judicial Review or Appeal in the Immigration Law Context

By Author: Admin | September 9, 2016

Toronto Immigration Lawyer

 

Judicial Review or appeal in Immigration Law

In Canada, a vast number of government bodies and agencies provide a wide range of services to Canadians. Parliament, through laws grant decision making powers to the executive branch of the government such as ministries, governmental agencies and bodies. Hence, all administrative bodies derive their powers and jurisdiction from their governing statutes. In the immigration context, Citizenship and Immigration Canada along with Canada’s Border Service Agency derive their power from the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations.

Judicial review is the process by which the courts oversee administrative decision-makers to ensure that their decisions are legal and are within their jurisdiction. The courts may review and grant relief regarding an administrative decision where the decision-maker exceeded the powers conferred by law or breached the principles of procedural fairness.

What’s the difference with an appeal?

It is fundamental for applicants to understand the difference between judicial review and an appeal. When a decision is subject to an appeal, the appellate body has the power to replace the earlier decision with its own decision.

However, a judicial review does not grant the Courts the power to replace the decision with their own decision. If the Court agrees that errors were made and a judicial review is warranted, it will grant the judicial review and send the file back to be heard by a new officer or Board Member. A victory by an applicant on judicial review allows that person to have his case heard again.

Appeals in the immigration context

Appeals are governed by Division 7: Right to Appeal (sections 62 to 71) of the Immigration and Refugee Protection Act. The Immigration Appeal Division is the body that hears appeals related to immigration matters. The Act states the situations where there is a right to appeal (section 63 of the Act) and situations where there are no rights to an appeal (section 64 of the Act).

There is a right to appeal for visa refusals of a member of the family class (spouse, mother, father, grandparents, children related to the sponsor, his parent’s or grandparent’s under the age of 18 see regulation 117(1) of the Immigration and Refugee Protection Regulations for specifics).  There is also a right of appeal for against removal orders made against a foreign national who holds a permanent resident visa. A permanent resident or a protected person can appeal their removal order. Finally a permanent resident may appeal against a decision made outside of Canada on the residency obligation under section 28 of the Act.

The situations where there is no right to appeal are when a foreign nationals has been found inadmissible on grounds of security, violating human or international rights, serious criminality or organised criminality. Serious criminality is any crime that has a term of imprisonment of at least 2 years or more. Finally there is no right to appeal if there was a decision based on a finding of inadmissibility on the ground of misrepresentation except for persons sponsoring a spouse or common law partner.

An appeal is allowed if the Immigration Appeal Division is satisfied that the decision appealed is wrong in law or fact or mixed law and fact, a principle of natural justice has not been observed and taking into account the best interests of the child directly affected by the decision sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case see section 65 of the Act for when humanitarian and compassionate considerations may be considered and when not.

Judicial Review in the Immigration context

Judicial Reviews are governed by Division 8: judicial Review (section 72 to 75) of the Immigration and Refugee protection Act. Judicial Review is made by the Federal Court by seeking leave (authorization) to the Court. To be able to make an application for leave (authorization) all rights of appeal must have been exhausted and the applicant must file a notice 15 days if in Canada and 60 days if outside of Canada from the date the applicant is notified or made aware of the decision he or she wishes to review. As we have seen judicial review does not allow the Federal Court to render a decision it can only send back the case to the proper authorities to decide the case again where the decision-maker exceeded the powers conferred by law or breached the principles of procedural fairness.

Conclusion

We have briefly seen the distinction between an appeal and judicial review. If you need help navigating the complicated waters of appeals and judicial review in the immigration law context contact the Toronto immigration lawyers at Chaudhary Law Office  for a consultation.

Canada’s Detention Review Hearings, a brief overview

By Author: Admin | September 2, 2016

Canada’s Detention Review Hearings, a brief overview

toronto immigration lawyer

Detention

The law under which an individual is detained by Canada’s Border Services Agency, is mentioned at section 55 of the Immigration and Refugee Protection Act, where it states that an officer:

  • considered it necessary to complete an examination;
  • was not satisfied with the person’s identity;
  • had reason to believe that a person was inadmissible to Canada and was a danger to the public, unlikely to appear for an examination, an admissibility hearing, removal from Canada or a proceeding that could lead to a removal order; or
  • had reason to suspect that the person was inadmissible to Canada for reasons of security, violating human or International rights, serious criminality, criminality or organized criminality.

The individual is usually detained either in a provincial correctional facility or in a minimum-security immigration holding centre located in Toronto, Montreal or Vancouver. The Canada’s Border Service Agency will determine where the place of detention would be.

Visiting hours and the number of visitors permitted vary for each facility it is therefore better to directly contact the detention facility by phone or through their website. Visits from counsel or a designated representative will be allowed during the facility’s normal visiting hours. Visits after these hours will be allowed only with the permission of the management of the facility. Their decision will depend on the particular details of your case.

Detention Review Hearing

When is the detention hearing?

As per section 57 (1) of the Immigration and Refugee Protection Act within 48 hours after an individual is taken into detention, the Immigration Division of the Immigration and Refugee Board must review the reasons for the continued detention. Weekends are not counted as days, therefore if you are detained on a Thursday or Friday your hearing will be on Monday or Tuesday.

What are your rights?

  • You have the right to be represented by counsel at your expense or to receive legal aid, if you qualify. You will be given the necessary information about the legal aid services available to you. You may also designate a friend or a member of an organization or association to represent you.
  • You have the right to be informed of the reason for your detention.
  • You have the right to contact your embassy or a representative of your country’s consulate at your request.
  • If you do not want a consular representative to be contacted, you can ask that the office of the United Nations High Commissioner for Refugees in Canada be informed of your detention.
  • If you do not understand or speak the language in which proceedings (that is, detention reviews, immigration hearings, etc.) are conducted, you have the right to be assisted by an interpreter.
  • If you are a minor under the age of 18, or in the opinion of the Immigration Division of the Immigration and Refugee Board (IRB), are unable to understand the nature of the proceedings, a designated representative may be appointed to help guide you through the proceedings.

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How is a detention review held?

The Immigration and Refugee Board member will be in charge of your review. You may address them as Madam or Mister Member. The member will start introducing everyone who is present at the hearing and will explain what will happen at the hearing. The Minister’s Counsel will present to the member some facts and evidence that will explain why the Canada’s Border Service Agency believes you should be detained. After her explanation you will be given an opportunity to respond and explain your story as well as ask questions personally or by your counsel if you are represented. The Member might ask you questions throughout the hearing. After hearing from both sides, the Member will decide whether you will be released or remain in detention. The Member will usually state his or her decision and the reasons for this decision at the end of the hearing. The member may also set a date for another hearing to give you the decision and the reasons.

What are the factors the member considers?

The two most common scenarios are that the officer believes the individual is a danger to the public or a flight risk.

If the person is considered a danger to the public, r. 246 of the Immigration and Refugee Protection Regulations states the factors the member must consider:

  • the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada;
  • association with a criminal organization;
  • engagement in people smuggling or trafficking in persons;
  • a conviction in Canada for a sexual offence or an offence involving violence or weapons;
  • a conviction for an offence in Canada under the Controlled Drugs and Substances Act for trafficking, importing and exporting, and production;
  • a conviction outside Canada or pending charges outside Canada for a sexual offence or an offence involving violence or weapons;
  • a conviction outside Canada or pending charges outside Canada for trafficking, importing and exporting, and production of controlled substances.

If the person is considered a flight risk, r. 245 of the Immigration and Refugee Protection Regulations states the factors that the member will consider:

  • being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;
  • voluntary compliance with any previous departure order;
  • voluntary compliance with any previously required appearance at an immigration or criminal proceeding;
  • previous compliance with any conditions imposed in respect of entry, release or a stay of removal;
  • any previous avoidance of examination or escape from custody, or any previous attempt to do so;
  • involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) of the IRPR or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure;
  • the existence of strong ties to a community in Canada.

Outcomes of a hearing

In making a decision, the Member considers the information provided at the detention review – including your version of events, and Canada’s immigration law.

If the Member decides that there is no longer a reason under Canada’s immigration law to keep you in detention the Member will order your release. The Member may also order you to meet certain conditions, such as checking in regularly at a Canada’s Border Services Agency office for a period of time, or paying a cash bond.

If you are ordered to remain in detention, you will have another detention review within seven days. If, after this second review, the Member again orders your detention, the reasons for your detention will be reviewed again in 30 days and every 30 days after that, until you are released or removed from Canada.

Chaudhary Law office detention hearing

You may ask for leave (or permission) of the Federal Court of Canada for judicial review of the decision.

As we have seen above navigating through a detention review hearing process is scary and complicated results vary greatly from Canada Border Services Agency officer to CBSA officer, and there is no sure way of guaranteeing one’s release without the full facts of the case being disclosed, usually during a legal consultation .

To be prepared consult the Toronto immigration lawyers at Chaudhary law Office we can assist you in your or your loved one’s detention review hearing.

For more information:

http://publications.gc.ca/Collection/MQ21-33-2006E.pdf

http://www.cbsa-asfc.gc.ca/publications/pub/bsf5012-eng.pdf

http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir02.aspx#note35

Criminally inadmissible into Canada, now what?

By Author: Admin | August 24, 2016

Criminally Inadmissible into Canada, what are my options?

Immigration Law Inadmissible into Canada for criminality_CHaudhary Law office

If you are a foreign national and you have been found inadmissible into Canada on grounds of criminality there are several options that are available in order for you to be able to enter into Canada. Every case is different and one should always seek legal advice from a competent immigration lawyer but here is a brief overview of the Law regarding inadmissibility on grounds of criminality into Canada.

What is inadmissibility on grounds of criminality?

Section 36 (2) of the Immigration and Refugee Protection Act states that a foreign national may not enter Canada because of criminality for:

  • having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
  • having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
  • committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
  • committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

In Canada, criminal offenses fall into three categories Summary convictions, indictable offenses and hybrid offenses.

First, there are offences punishable upon summary conviction only (or “pure” summary conviction offences) (see section 787(1) of the Criminal Code). They are, generally speaking, the least serious offences and attract the lowest penalties fines of not more than 5000$ and/or a term of imprisonment not exceeding 6 months.

Second, there is Pure Indictable offenses, they are the most serious offences, and they carry with them the most severe penalties upon conviction. The sections creating “pure” indictable offences are always accompanied by a specific penalty provision.

Third there are hybrid offenses also called crown elect offenses they are either punishable by summary conviction or by indictment. All hybrid offences are accompanied by a specific penalty provision that sets out the maximum penalty available should the Crown proceed by way of indictment. For immigration purposes in Canada a hybrid offense will be deemed to be an indictable offense.

What can I do to enter Canada?

There are three possibilities if a foreign national is found to be inadmissible for criminality into Canada. First, there is the rehabilitation for persons who are inadmissible to Canada because of past Criminal Activity application. Second, if the person is not eligible for rehabilitation because five (5) years have not passed since the end of the sentence imposed or you are not eligible to apply for a record suspension (formerly a pardon) for convictions in Canada, you can request a special permission to enter Canada.  Third, there is an application to request Humanitarian and compassionate grounds.

Rehabilitation for offenses inside of Canada

If you have a criminal conviction in Canada, you must seek a record suspension (formerly a pardon) from the Parole Board of Canada (PBC) before you will be admissible to Canada.

In order to be considered for a record suspension under the Criminal Records Act, a specified period of time must pass after the end of the sentence imposed. The sentence may have been payment of a fine, period of probation, or imprisonment.

Rehabilitation for offenses outside of Canada

You are eligible to apply for rehabilitation if you have:

  • committed an act outside of Canada and five (5) years have elapsed since the act;
  • been convicted outside of Canada and five (5) years have passed since the end of the sentence imposed.

If you were convicted of an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:

  • You are deemed rehabilitated: at least ten years after completion of the sentence imposed.
  • You are eligible to apply for rehabilitation: five (5) years after completion of the sentence imposed.

If you committed an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:

  • You are deemed rehabilitated: at least ten years after commission of the offence.
  • You are eligible to apply for rehabilitation: five (5) years after commission of the offence.

If you were convicted of an offence or you committed an offence outside Canada that, if committed in Canada, would be punishable by a maximum term of imprisonment of ten years or more:

  • You are deemed rehabilitated: not applicable.
  • You are eligible to apply for rehabilitation: five (5) years from completion of the sentence or commission of the offence.

If you were convicted for two (2) or more offences outside Canada that, if committed in Canada, would constitute summary conviction offences:

  • You are deemed rehabilitated: at least five (5) years after the sentences imposed were served or to be served.
  • You are eligible to apply for rehabilitation: not applicable.

Humanitarian and compassionate grounds

section 25 (1) of the Immigration and Refugee Protection Act allows foreign national to seek an exemption from the law if they are found inadmissible on grounds of criminality:

25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Relevant Factors that officers consider when granting such relief are set in Guidelines and are not limited to:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical
  • inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in A96 and A97);
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to A96 and A97.

The Guidelines provide that the relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances.

Conclusion

We have seen three possibilities for individuals who are found inadmissible on grounds of criminality. If you or someone you know is inadmissible for criminality and wishes to come to Canada contact Chaudhary Law Office.

Slippery Policies Behind Proposed Changes to Work Permits and Temporary Foreign Workers’ Rules

By Author: Admin | August 18, 2016

The granting of applications such as Labour Market Impact Assessments (LMIAs)  and many work permits is subject to policy imposed by Canada’s immigration department.  Policy – as distinct from law – can be altered by governments with ease, as compared to, for example, laws and regulations.

The current government intends ease foreign workers’ entry into Canada.  A  “waving [sic] of  labour-market impact assessments in certain cases where that would help attract top talent to come to Canada,” is being contemplated by immigration Minister McCallum.  Similarly, from the same report, a spokesperson for trendy spandex maker/ alleged fat shaming entity Lululemon expressed the need for importing skilled persons in the field of ” design, product development and digital work”.

lululemon logo The  previous quote implies that the easing of rules with apply to those with executive-level or specialized skills such as computer-assisted design.   However, one can question whether there is a reluctance on the part of Canadian companies to train local Canadians, who graduate from Canada’s “world-class” post-secondary institutions.  Does not Canada have many colleges and universities with programs in such related courses such as business  administration and information technology?  Many foreign students seem to think so.

The Minister stated, “We’ll get rid of many of these [required] labour-market impact assessments which slow things down enormously.”   A change in policy aimed at reducing the need for LMIAs, presumably would be done in a targeted way to ensure that there is some net benefit to the Canadian labour market, such as job creation, or the transferring of skills to a Canadian company’s existing Canadian employees.

The danger with any exempt LMIA is that such exemptions spring from policy, not law or regulation.  The underlying law is couched in vague terminology such as “significant benefit” specifically R205(a), of the Immigration Refugee Protection Regulations which describesSignificant benefit” in terms of “maintain[ing] significant  social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents”.   Similarly, many LMIA exempt categories come under the law at R205(c)(ii) of the Immigration Refugee Protection Regulations which cites “Public policy, competitiveness and the economy,” as rationales behind allowing foreigners to work in Canada without the need for the destined Canadian employer to seek out Canadians as prospective employees.

The above terse sections of Immigration Refugee Protection Regulations are clothed by a manual of policy.  The advantage for the government is that policy can be added at a whim.  The disadvantage is for employers and the Toronto immigration lawyers that represent those employers is that officers can misinterpret policy, or choose to ignore policy.  The result is that many LMIA exempt work permits can be easily refused by an immigration officer without proper assistance from a Toronto immigration lawyer.

If you are a Canadian employer seeking seeking to hire a foreign worker, contact Chaudhary Law Office.

 

Is Canada the best place to immigrate to? (A Response to a Quora Reader)

By Author: Admin | August 5, 2016

Toronto immigration lawyer‘s point of view on the above question is circumscribed by the location, i.e., being located in an urban setting in Canada.

A significant factor when determining which country would be  the best place to immigrate, would include whether one can economically establish in Canada.  Similarly, the ability to qualify as an immigrant to Canada is directly related to the same question, “will the candidate have the ability to successfully establish in Canada”. (in the economic sense).

Toronto immigration lawyer

The ability to successfully establish in Canada is affected by factors such as knowledge of Canada’s official languages, quality/amount/type of  education, age when immigrating, and to a lesser extent, support of relatives in Canada, among other factors.  The more obvious criterion from the immigration department’s point of view, is whether there is a valid job offer being offered by an employer in Canada; a valid job offer would assuage the Canadian government’s concern about whether the would-be immigrant can economically establish in Canada.

A cursory look at the criteria for immigration to Canada reveals that those persons who have worked in Canada at a suitably skilled job for at least one year are at a definite advantage in comparison to those who have only acquired work experience outside of Canada.   Similarly, people who have worked for at least one year in Canada, plus have worked for more than one year outside of Canada in a suitably skilled job are deemed more attractive under the Canadian immigration criteria.

Similarly, those persons who intend to immigrate to Canada as business people have a higher chance of success for immigrating if they demonstrate to an immigration officer that they have visited Canada, and have carried out research related to the intended business to be established or purchased; a proven track record in managing a business in the country of origin is also viewed favourably.

Recent political events in England have spurred interest of certain British citizens to immigrate to Canada as farmers.  Such a self-employed candidates may have to deal with a host of regulatory issues related to farming that are not present as a farmer in the United Kingdom.  Such potential Canadian farmers may be viewed favourably by the Canadian immigration system, if they demonstrate the funds and ability to operate and/or purchase a farm in Canada.

People who don’t possess the skills to economically integrate into Canada would not not find Canada to be the best country to immigrate to.  Such persons may have immigrated to Canada in their 40s or older, after working in their country of origin, and being recognized in their country as an expert in their field.  Such persons may find that their educational credentials are not recognized, nor is their work experience given much value in the Canadian labour market. Such persons may toil in a job that does not utilize the skills and education they have acquired, and such persons may find immigrating to Canada to be a grave mistake.  This sometimes necessitates the main breadwinner of the family to return to the country of origin to continue employment, so as to support the family that remains in Canada.

 

 

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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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Client Testimonials


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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