LM Immigration Blog

What's a Skilled Worker to Do?

2011-08-14T15:20:00.000-04:00

It used to be that if you had a post-secondary degree, skilled work experience, and a reasonable knowledge of English or French, that you could qualify to immigrate to Canada. In the past few years, however, the Federal government has dramatically shrunk the skilled-worker category. Einstein himself wouldn't qualify for permanent residence today.

So what's a skilled-worker to do? Well, here are some avenues to consider:

1. If you have the necessary work experience to fit into the 29 occupations that are still accepted for the skilled worker class, you could qualify if you apply fast. There's a quota of only 500 applications for each occupation this year and many of these are filling up rapidly.

2. Try to obtain a permanent high-skilled job offer in Canada. Even if you can't get a work permit for this job right away, if the business would offer you the job once you become a permanent resident, you may still qualify for arranged employment which would allow you to qualify.

3. If you have owned your own business and have over $300k in net worth, you may be able to qualify for one of the entrepreneur programs in some of the provinces in Canada under the PNP programs. If you have a net worth of $1.6 Million or more, you could qualify under the Investor program.

4. If you don't have that amount of net worth but you work in the arts or are a champion athlete, you could qualify under the self-employed category for artists and athletes.

5. If you are willing to work in a low-skilled job and have a job offer, you may qualify for permanent residence in certain provinces in certain sectors.

6. If none of the above applies to you or if you would like to come to Canada immediately, you should consider going back to school in Canada. Students who complete 1-2 year programs in Canada will in most cases have a clear path to obtaining permanent residence under a number of economic categories.

Canada no longer welcomes skilled workers with open doors but there are still windows of opportunity open to those who know where to find them. Just make sure you have a good blueprint before you begin.

The Cost-Benefit Analysis

2010-09-07T16:39:00.000-04:00

On August 18, the federal government issued a new law banning foreign workers who have worked in Canada for 4 years from receiving another work permit for 4 years. This law was issued without a vote in Parliament because it was a change to the regulations.

The government has justified this law on the basis of a simplistic "Cost-benefit analysis". See http://canadagazette.gc.ca/rp-pr/p2/2010/2010-08-18/pdf/g2-14417.pdf. In essence, here's what the government is saying: Temporary Foreign Workers bring in money because of their labour and the taxes that they pay. However, we don't want them to feel like they should be able to stay because we call them "temporary workers". So now, they really are going to be "temporary workers" because we're going to make sure they can't stay (especially the "low-skilled workers") by banning them from working in Canada after they've worked for 4 years.

This reflects an underlying ideological elitism that is disturbing to the core.

Whether or not we want workers to stay here permanently or temporarily should depend on:
1. Whether or not the workers want to remain in Canada on a permanent basis and become a member of our communities and our country;
2. Whether or not their current or potential employers need them to work for the long term; and
3. Whether or not their presence will add to the socio-economic fabric of Canada.

None of these factors justify limiting the time that workers can remain in Canada to work. It is not beneficial to the workers, the employers, or Canada to ban them from Canada after 4 years. The only reason for the government to do so would be to try to stop "low-skilled" workers from making Canada their home. Some cost-benefit analysis!

Wake Up Ontario!

2010-07-04T10:09:00.001-04:00

If all goes according to the Conservative government's plan, the decision of who to immigrate to Canada in the economic categories will be shifted in large to the provinces. The Provincial Nominee Programs (PNPs), in which the provinces selects the candidates who they would like to immigrate to Canada, will take over as the largest category of economic immigrants to Canada in the next ten years, overtaking the Federal skilled worker program which is being shrunk to a mere fraction of what it once was under the Liberal government.

In 2009, the total number of immigrants who came under the PNP category was around 30,000 (see http://www.cic.gc.ca/english/resources/statistics/facts2009/permanent/01.asp). Ontario selected less than 3% of these individuals. While other provinces annual quotas for persons who are nominated under their PNP number several thousand to unlimited in Alberta's case, Ontario's PNP has remained a mere 1000. And get this, Ontario has never even come close to meeting its quota!

Why is Ontario getting such a low percentage of persons who are coming under the PNP? Because Ontario's criteria is for the most part only available to graduate students and very large to huge businesses and corporations. Compare the following:

- In the Employer sponsored class, most provinces only require that the business be real and offer real jobs to workers to qualify for their PNP. Ontario requires that the business generate a profit of a million dollars and have a miniumum of 5 employees in the GTA or half a million and have 3 employees outside of the GTA.

- Many other provinces allow employers to nominate lower-skilled workers who are particularly needed in the province such as farm workers, food-processing workers, tourism and hospitality workers, and long-haul truckers. They also allow residents of the province to nominate extended family members. Ontario makes no such allowances.

- In the Entrepreneur programs, other provinces attract businessmen and women by allowing them and their families to immigrate if they invest anywhere from around $150,000 to $400,000 in a business in the province. Ontario used to require businesspersons to invest 10 million dollars. Now they've reduced this number to a still whopping number of 3 million. Needless to say, finding an astute business person who wants to apply under this category is like finding a cop who doesn't like doughnuts.

The policy makers who decide on the Ontario PNP always say that Ontario attracts 40% of the immigrant population and therefore we can afford to be selective. This is faulty reasoning. 40% of immigrants do not come to Ontario, they come to Toronto. In an age where manufacturing industry in Ontario is dying and small town Ontario's population is withering away, we desperately need injections of business development and population growth into Ontario. We need businessment to invest in businesses and create jobs in Ontario. We need workers to work in jobs which can't be filled by Ontarians to sustain businesses of all sizes and pay taxes.

As the PNP rises in the next few years as the main category for economic immigration, that number will likely decrease. Ontario will be in competition with other provinces who have far more attractive programs for business persons. They will be in competition with other provinces that recognize that small businesses need workers too and allow them to nominate key employees in their business to immigrate. They will be in competition with other provinces that recognize that just because a job is not deemed to be "high-skilled" that there might still be a demand for labour in the province. They will be in competition with other provinces that recognize that persons who have families be much more likely to be economically prosperous and settle into the community where their families are.

Wake up Ontario! Stop being so arrogant to think that we're not in competition for labour. Our province is only as good as our people make it. Let us make sure that we get our share of the best, the brightest, and the hardworking for our future.

The New Spousal Sponsorship Regulations: What changing “and” to “or” can do to your relationship.

2010-05-13T16:56:00.002-04:00

The Minister of Citizenship and Immigration has announced that new regulations will come into place which will change the definition of what the government defines as a “bad faith” marriage or adoption. Currently the law states:

“… A foreign national shall not be considered a spouse, a common-law partner, conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.” (s.4 of Immigration Refugee Protection Regulations).

The Minister wants to change the “and” where bolded above to “or”. This will mean that even if the relationship between a couple or between a parent and an adopted child is genuine, the officer could refuse a sponsorship application if he/she feels that the sponsor married or adopted the child in order to obtain immigration status.

Take for example Jack and Jill Nimble. Jack and Jill are in love with each other and have a genuine relationship with each other. Jill does not have status in Canada so they decide to get married this year instead of a couple of years down the road so that Jack can sponsor her and they can be together sooner. According to the new law, their sponsorship could be refused because they got married to obtain immigration status even though the couple have a genuine marriage and relationship.

Take for example Mrs. Hubbard and her nephew Peter. Peter’s parents have died in an earthquake and Mrs. Hubbard adopted her nephew so that he can live together with her in Canada and be in her family. The adoption can now be refused because it was entered to obtain immigration status even though Mrs. Hubbard loves Peter and has a genuine parent-child relationship with him.

These new changes create disturbing restrictions on family reunification. People get married for all sorts of reasons – pregnancy, family pressure, to start a family. Why shouldn’t we allow people who get married so that they can stay together a chance to be together?

In addition, the officers who already have tremendous power to refuse applications, now will have even more power to refuse applications due to what they think was the purpose of your marriage or adoption. It’s hard enough to show that you have a genuine relationship. It would be almost impossible in many cases to obtain proof of one’s motivations.

One of our greatest Prime Ministers, Pierre Trudeau, once said “The state has no business in the bedrooms of the nation”. This new legislation attempts to do just that – regulate why people choose to get married or adopt. No state should be allowed to do this to its citizens.

How the Balanced Refugee Reform Act is not so balanced: Chapter 1 – Elimination of the Pre-Removal Risk Assessment

2010-05-13T11:58:00.003-04:00

On March 30, the Minister of Immigration announced plans to enact the Balanced Refugee Reform Act, Bill C-11. This bill has passed second reading and is currently being examined by the Parliamentary Standing Committee. In my opinion, this Bill would prioritise removal of failed refugee claimants over ensuring a free and fair legal process. Given the massive impact that this bill is likely to have on our system I will be focusing a series of blog entries on different aspects of the legislation and how they will change our current system.

The issue that I will be examining in this entry is Section 15 of the bill which prohibits any individual from making a Pre-Removal Risk assessment Application (PRRA) if less than 12 months have passed since their refugee claim was rejected. The purpose of the PRRA application is to ensure that the Government does not remove an individual to a country where they will face torture or a risk to their life. The bill in its current form would remove this safeguard and facilitate faster removal of individuals whose refugee claims have been deemed unsuccessful.

The Minister of Citizenship and Immigrations maintains that a one year ban on the PRRA is unnecessary because a timely risk assessment is conducted in the context of the refugee claim. There are a number of problems with this position.

PRRA applications often include evidence that was not presented to the refugee Board to support a claim. Given that the bill also proposes to shorten the timeline of the hearing to sixty days, it is likely that applicants will not be able to collect the evidence in time. As such, it will be even more critical that a PRRA be conducted otherwise removals will occur before this crucial information can be reviewed.

The PRRA is also important because it serves as a safety net for the most vulnerable claimants. Often it is used to raise new risk grounds that the applicant could not raise at the hearing. For example, female claimants that live in situations of domestic abuse come to Canada with their abusive spouses who make claims on behalf of the entire family. Once in Canada these women separate from their abuser and seek their own legal advice because they fear returning with their spouse. Because these women have already made a refugee claim, the PRRA is the only application where she can tell her story.

A third consideration is that circumstances in a refugees country of origin can change significantly over a short period of time. Situations such as the collapse of a peace accord, a major terrorist attack or a political coup can drastically alter the risk for individuals being returned, even in a matter of days. The Federal Court has clearly stated that a timely risk assessment be conducted that considers the relevant circumstances that are present at the time of removal.

The current PRRA is purposefully designed to consider evidence that was not, or could not, have been considered by the Refugee Board. Any ban on PRRA would put refugees at greater risk of being deported to torture or death. This is too high a price to pay for the sake of expedient removals.

What Immigration Lawyers Do

2010-02-22T14:28:00.001-05:00

As an immigration lawyer I often find myself having to explain what I do. My mother even once asked me, don’t you just help other people fill out forms? Well, this post is about what immigration lawyers should do and oh, I’d like to dedicate this post to my mother.

What Immigration Lawyers are Supposed to Do

1. Planning

It has often been said that the Immigration and Refugee Act and Regulations are the most complex pieces of legislation next to the Tax Act. To determine what these written laws mean, the Federal Court decides thousands of cases each year as lawyers argue different interpretations of the law. On top of this, Citizenship and Immigration Canada (CIC) has hundreds of written policy manuals and bulletins issued to its officers as to how to apply the law. There are also numerous internal policies that are not publicized and unwritten cultures in each visa post that govern how the officers are supposed to make decisions.

A good lawyer should help you navigate through the multitude of legislation, court cases, policies, and unwritten cultures to make a plan to reach your goals. Your lawyer can help you determine the categories that you qualify for permanent or temporary residence or how you might go about qualifying for a particular category. Your lawyer should also advise you on how and where to apply in order to maximize your time and ability to obtain a positive determination.

When you try to go through the immigration jungle, it becomes immeasurably easier and safer if you have a map with you.

2. Preparation

Ah the inevitable forms! 90% of the time when I ask my clients to complete an immigration form I will have to amend the forms to correct mistakes, explain what the situation actually is, and cut out details that are extraneous. All of these errors can lead to unnecessary delay and possible refusals if they were submitted uncorrected.

In addition to the forms, most applicants will have to obtain documents that are particular to their own unique situation that may not be listed on the document checklists issued by CIC. The burden of knowing what documents to submit lies with the applicant. In the past visa officers have often been willing to give the applicants a second chance and will send them a letter to request for more documents. However, in June of 2009 CIC has issued a formal policy which states that officers no longer have an obligation to do so. Most applications which do not have the necessary documents will be refused without further notice.

Finally, think of applying for an immigration status as going to court. Under Canadian immigration law, the officer who is making the decision is a tribunal (a miniature court). Instead of arguing your case orally, however, everything is usually submitted by writing. You can go before the officer with a lawyer representing you who will argue your case in the lawyer’s legal submissions or you can go by yourself without saying anything on your behalf. If you wouldn’t represent yourself in court, you should think twice about representing yourself in an immigration application.

3. Monitoring

People make mistakes and officers are certainly human. Immigration officers leave some applications to the bottom, they make unreasonable decisions, and sometimes even lose applications. A good lawyer will be able to contact persons at the offices, make complaints to supervisors, and argue with unreasonable decisions. These crucial actions remain unavailable to most lay persons who can experience unfair hardships as a result of the office’s mistakes.

4. Rectifying Mistakes

Finally, if you have made a mistake in the past or have hired a bad consultant or lawyer, you will need a good lawyer to try to help you rectify your situation. Good lawyers can help you reapply, appeal your case, or suggest alternative routes.

However, beware that the immigration system is extremely unforgiving. Once you have a black mark against you in your file, your case usually becomes exponentially more difficult. Hindsight is 20/20 and speaking on behalf of the many clients who have come to us after they made mistakes by themselves, it is worth it to do it right the first time.

A Visa versus Visitor Status

2010-01-30T18:09:00.000-05:00

I am often perturbed by the number of people who are confused about what a visa is and the trouble individuals get into when they mistakenly think that a visa will let them remain in Canada for a certain amount of time. Let me make this clear: a visa does not give you status in Canada and will not allow you to remain in Canada until the date of its expiry.

Here is what a visa is: A visa is a document (which is laminated onto the passport) that nationals of some countries will need to enter Canada. Not all people need a visa to enter Canada. If you are a national of a country which nees a visa to enter Canada, this visa will state on it your purpose for entering Canada, whether it is a single-entry or multiple-entry visa, and how long it will be valid for. A single-entry visa will allow you to enter Canada once. A multiple-entry visa will allow you to enter and re-enter Canada multiple times for as long as the visa is valid.

Upon entering Canada, most individuals will be allowed to stay for an initial period of 6 months. However, this period could vary depending on the stamp on your passport or the visitor record that is sometimes issued.

People who do not need visas to enter Canada are sometimes advised by some lawyers and consultants to drive to the border and re-enter Canada to get another 6 months status. However, this practice can cause you to be prevented from entering Canada again and should be used only in certain cases. Officers at the border often become wary of people who continually renew their status by leaving and re-entering Canada and have prevented persons from re-entering Canada and even issued removal orders in some cases.

Whether or not you needed a visa to enter Canada, once you are in Canada, you can apply to extend your status within Canada. In many cases, this might be your best option. As long as you apply to extend your status before your current status expires, you will have continued "implied status" until a decision is reached on your extension application. An experienced lawyer can help you determine whether and how you would be able to obtain a positive decision on your extension application.

Here's a little known fact: If you hold a valid work permit, study permit, or visitor record, you can travel to the United States, St. Pierre or Miquelon and return to Canada even if you have an expired visa. If you decide to travel to other countries, however, you will need a visa to return to Canada (if you are a national of a country that requires a visa to enter Canada).

Maintaining one's legal status in Canada is one of the most important actions a newcomer must take when coming to Canada. If you lose your status you could be disqualified from many permanent residency programs and almost all work permit and study permit programs that give you temporary status. Hence your ability to regain status in Canada will likely be severly compromised. Furthermore, if you are caught without status in Canada you could be detained and ordered to be removed from Canada. Proper planning and legal representation in the early stages can help you avoid these pitfalls if you have any plans to remain in Canada. Remember, keep your options open and hold onto your status tight!

How to build a nation

2010-01-17T17:03:00.003-05:00

In Canada we stand on shoulders of giants. We have not fought great wars on our soil, nor have we conquered and formed an empire. Our giants were gentle extraordinary folks who through hard work, determination, and resourcefulness built one of the most progressive, peaceful, and prosperous countries in the world in less than 150 years. Our giants were immigrants and descendants of immigrants.

In recent years, however, Canada's immigration policies under the Conservative government have made a crucial shift from nation building to alarming bandage solutions. With a fertility rate of 1.54 (the replacement rate of a population is generally accepted to be 2.1 children/woman), Canada is and will be highly dependant on migration of outside workers to support its greying population. We have historically resolved our labour and population growth shortcomings in the past by attracting young, hardworking immigrants and families to come and settle into our country. From farm workers to factory workers, restaurant workers to maids, immigrants came, raised their families, and settled this country. Today, most of these workers would be kicked out after being enticed to work in Canada under harsh conditions for a limited number of years.

The Canadian government has tried to classify all of the occupations it could think of as either high-skilled or low-skilled. Which occupations are high-skilled and which occupations are low-skilled? Well, here are some examples: If you are a factory worker, you are low-skilled. If you are a manage a factory worker, you are high-skilled. If you are a bricklayer you are high-skilled. If you are a personal support worker taking care of patients in an old-age home, you are low-skilled. Clear as mud?

In Canada high-skilled workers who have job offers have several avenues to permanent residency and can bring over their families while they hold work permits. Their spouses can obtain open-work to allow them to work anywhere in Canada, their children can attend public school for free, and their families can receive free government healthcare. Low-skilled workers, on the other hand, are not encouraged to bring their families to Canada and most importantly, with a few exceptions, would not qualify for permanent residence status. Soon these workers will be required to return to their country after working here for 4 years and be banned from coming back to Canada for 6 years.

I was at a luncheon for the Canadian Bar Association when the question was asked of a HRSDC representative - why low-skilled workers were required to return to their countries after being in Canada for 2 years under a former program. The response was something to the effect of "We don't want these people to feel like they can stay in Canada and integrate into the community". This answer brought shivers down my spine when I heard it and it infuriates me every time I think about it. Why are we discriminating on the basis of a person's occupation? We need factory workers just as much as their managers. Who says we don't want "these people" to stay in our country and integrate into our community? Why can't "these people" who are needed by their employers, who work in jobs that most Canadians won't or can't do, be allowed to immigrate?

In 2008, the number of temporary foreign workers outnumbered new permanent residents 3:2. The trend is expected to continue even further. We are moving towards an European-like system where there are two classes of people living in one country. This is not a way to build a nation. This is not Canadian.

Year in Review - 2009

2009-12-30T21:42:00.001-05:00

Dear Readers,

It is almost 2010 and on almost the eve of the new year, I would like to reflect on some of the most significant events/changes that has happened to immigration law in 2009:

5.) In July of this year, Minister Kenney imposed visa requirements for temporary visitors from Mexico and the Czech Republic. The Minister publicly stated that these requirements were needed to stem the large numbers of refugees claimants who "may not be genuine" from these countries.

In my view, it is one thing for a Minister to impose visas on countries with high numbers of refugee claimants - Canada has imposed visas on almost all of the other high refugee-producing countries. It is quite another matter, however, for the Minister to state that refugee claimants from these countries are not genuine. Human rights abuses in these countries have been well-documented. In the last year, the Immigration Refugee Board has accepted 95% of the Roma claimants from the Czech republic as genuine refugees. Most of these claimants were fleeing Neo-Nazi beatings and attacks. For the Minister to broadly paint these claimants as non-genuine refugees presents serious issues of bias and disingenuity.

Bottom line: call a spade a spade - if you want to prevent refugees from coming to Canada by imposing visas, say so. Don't try to justify your actions by making the refugees the bad guys.

4.) In June of this year, CIC made significant changes to the Federal Skilled Worker procedures - see http://www.cic.gc.ca/english/resources/manuals/bulletins/2009/ob120.asp. One of the most important changes has been that officers are no longer required to ask applicants to submit further required documents. In the past, if they found that the documentation submitted by the applicant was insufficient, officers would give the applicants a second chance to submit further documents that they would need to pass. There are no more second chances. Any application with insufficient documentation will likely be rejected.

This will present serious issues for applicants who apply without proper counsel. Although the visa office has a document checklist, each individual's circumstances are unique and the documents on the checklist may be insufficient to satisfy the officer of the individual's qualifications. When one missing document can mean the difference between acceptance and refusal, submitting applications without the proper expertise will be akin to playing Russian roulette.

3.) In June of this year, MP Olivia Chow exposed shocking statistics about the refusal rates of spousal sponsorship applications for visa posts such as Hong Kong and Accra - almost half of the applications submitted to these visa posts are refused. See http://www.thestar.com/Unassigned/article/658649.

The separation from one's partner is one of the hardest burdens to bear. If one's application is refused, the entire appeal process can stretch on for a couple of years. In total, one could be separated from one's partner for 4-5 years throughout the entire process.

The problem, some may say, is that there are a lot of people who arrange fake marriages. Yes, this may be true - however, the officers must be trained to give proper interviews at the visa posts to determine whether or not the relationships are genuine or not. Simply speaking for a few minutes on the phone with an individual is not enough. Genuine applicants who apply on their own may be startled and not know what to say while applicants with fake marriages are usually prepped by the middle man to answer basic questions the way officers expect. Officers must be trained to smoke them out and not just blindly swipe away at any application that may seem suspicious. Doing so and causing genuine couples to be separated for years is harsh and indeed cruel.

2.) In April, a new citizenship law was passed that limits citizenship to be passed on by birth. According to the new law, children born outside of Canada to Canadians who acquired their citizenship through their parents (not by being born in Canada or through naturalization) will no longer be citizens.

Children who are adopted by Canadians outside of the country can also acquire citizenshp directly. However, for those considering international adoption, be wary of this process. If your child enters Canada as a permanent resident and then applies for citizenship through the naturalization process, your child will have the same rights to pass on their citizenship as if they were born in Canada. If you choose to have your child acquire citizenship without going through the permanent resident process, your child will not be able to pass on their citizenship to their children. The difference in the paperwork that is filed can mean a difference in the citizenship rights of your grandchildren.

1.) In October, Minister Kenney proposed regulation changes to "strengthen the protection of temporary foreign workers". One of the most controversial parts of the regulatory changes is a 6 year ban on workers from obtaining another work permit once they have worked in Canada for 4 years.

In my view, there is no explanation possible for imposing a 6-year ban other than to prevent the workers from being able to stay in Canada on a permanent basis. We are moving towards a system of two-tiered residents that is inconsistent with our heritage as an immigration country. If these regulations pass, then we are moving towards a system where we use foreign workers to work in jobs that Canadians are reluctant to do, to be paid wages and work in conditions that we would not accept, and then to ship them back to their countries because we are saying that they are not people we would want to stay in our country and be a part of our communities. This is not the Canada that I want. I do not believe that this is a country that most Canadians want.

Dear readers, join us in the new year as we examine and discuss these and other issues. Immigration law and policy shapes the future direction of our country and we invite you to join us as we examine the issues involved in the debate.

Happy New Year Everyone!