Second Class Citizens? Not in Canada!

Former Prime Minister Stephen Harper’s Bill C-24 to amend the Citizenship Act received Royal Assent and became law on 19 June 2014. These amendments were widely criticized as having created a two-tiered citizenship system. Particularly controversial were subsections 10(2) and 10(3) of the Citizenship Act which allowed for citizenship to be revoked from dual citizens convicted of treason or terrorism offences, depending on the sentence received, or who were part of an armed force of a country or organized group engaged in conflict with Canada. Moreover, in an interview with Andrew Lawton on 30 September 2015, when asked if he might strip dual citizens who have been convicted of other crimes, such as murder, rape, or crimes against children, of their Canadian citizenship, Harper replied “well, you know, obviously we can look at options in the future.”

Current Prime Minister Justin Trudeau heavily denounced the Harper Government’s two-tiered citizenship system throughout his 2015 election campaign and famously stated that “a Canadian is a Canadian is a Canadian”. Recently, and three years after the passing of Bill C-24, the Trudeau Government’s Bill C-6 to repeal many of the Harper Government’s amendments received Royal Assent and became law on 19 June 2017.

The following chart explains the new amendments to the Citizenship Act and indicates when they are expected to come into force:

CHANGES EFFECTIVE IMMEDIATELY (AS OF 19 JUNE 2017)

Previous Citizenship Act

Citizenship Act with Bill C-6 Amendments

Citizenship could be revoked from dual citizens convicted of treason and terrorism offences, depending on the sentence received, or who were a part of an armed force of a country or organized group engaged in conflict with Canada. This provision has been repealed. Dual citizens who are convicted of these crimes will face the Canadian Criminal Justice System like all other Canadians who break the law.
Applicants were required to intend to continue to live in Canada once granted citizenship. This provision has been repealed.
The Minister had the discretion to waive certain requirements under subsection 5(1) of the Citizenship Act so a minor could obtain citizenship without a Canadian parent. The minimum age requirement for citizenship has been removed. Minors can now apply for citizenship without a Canadian parent.
No provision existed to prevent individuals serving a sentence in the community from being granted citizenship, taking the Oath of Citizenship or counting this time towards meeting the physical presence requirements for citizenship. Individuals serving a conditional sentence will not be granted citizenship, take the Oath of Citizenship, or be able to count this time towards meeting the physical presence requirements for citizenship.
The Minister has the discretion to grant citizenship to a person to alleviate cases of special and unusual hardship, or to reward services of an exceptional value to Canada. This provision continues, and statelessness has been added as a stand-alone ground that can be considered for a discretionary grant of citizenship.
Although the Department has reasonable measures to accommodate the needs of citizenship applicants, no explicit provision existed to accommodate persons with disabilities. There is now a requirement to take into consideration reasonable measures to accommodate the needs of a citizenship applicant who is a disabled person.

 

CHANGES EXPECTED TO TAKE EFFECT IN FALL 2017

Previous Citizenship Act

Citizenship Act with Bill C-6 Amendments

Applicants had to be physically present in Canada for four out of six years before applying for citizenship. Applicants must be physically present in Canada for three out of five years before applying for citizenship.
Applicants had to file Canadian income taxes, if required to do so under the Income Tax Act, for four out of six years. Applicants must file Canadian income taxes, if required to do so under the Income Tax Act, for three out of five years.
Applicants had to be physically present in Canada for 183 days in four out of the six years preceding their application. This provision has been repealed.
Time spent in Canada prior to becoming a permanent resident did not count towards the physical presence requirement for citizenship. Applicants may count each day they were physically present in Canada as a temporary resident or protected person before becoming a permanent resident as a half-day toward meeting the physical presence requirement for citizenship, up to a maximum credit of 365 days.
Applicants between 14 and 64 years of age had to meet the language and knowledge requirements for citizenship. Applicants between 18 and 54 years of age must meet the language and knowledge requirements for citizenship.

 

CHANGES EXPECTED TO TAKE EFFECT IN EARLY 2018

Previous Citizenship Act

Citizenship Act with Bill C-6 Amendments

The Minister was the decision-maker for most cases of citizenship revocation on the grounds of false representation, fraud, or knowingly concealing material circumstances. The Federal Court was the decision-maker for citizenship revocation cases involving false representation, fraud, or knowingly concealing material circumstances related to security, human or international right violations, and organized crime. The Federal Court is the decision-maker in all revocation cases, unless the individual requests that the Minister make the decision.
There was no clear authority for Citizenship Officers to seize fraudulent or suspected fraudulent documents provided under the Citizenship Act. Clear authority for Citizenship Officers to seize fraudulent or suspected fraudulent documents is provided under the Citizenship Act.

Important Reminder!

Section 22(6) of Harper’s Citizenship Act remains unchanged by Bill C-6. This means that permanent residents are still required to maintain the conditions for citizenship under section 5(1) until taking the Oath of Citizenship. Essentially, applicants must, after submitting their application for citizenship and until taking the Oath:

  1. maintain their permanent resident status,
  2. not be charged or convicted with any criminal offences, and
  3. not have any removal orders issued against them.

Since this is now a statutory duty, Canadian officials are more diligent in ensuring that such requirements are met prior to allowing any applicant to take the Oath of Citizenship. Therefore, in order to ensure eventual citizenship status, it is imperative that applicants not take any chances and continue to fulfill the requirements of citizenship up until they take the Oath.

This will also mean that eligibility for citizenship determined by the physical presence rule of three out of the five years prior to the filing of the application (i.e. 60% of the time spent in Canada) is relaxed after the citizenship application is actually filed: and presence in Canada to comply with the residency obligation of only two out of five years (i.e. 40% of the time spent in Canada) is resumed.

What does this mean for permanent residents?

The Bill C-6 amendments to the Citizenship Act not only mean that permanent residents will have an easier, shorter and less onerous pathway to Canadian citizenship, but they also reflect the fundamental Canadian values of tolerance, openness and acceptance. Canada is a multicultural country that is built on diversity and inclusion, and, as stated by Prime Minister Trudeau in his 26 November 2015 speech in London, UK, “Canada has learned how to be strong not in spite of our differences, but because of them.”

Feel free to contact us and we will be happy to help you navigate the pathway to Canadian citizenship.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Myriam Wills is a Summer Law Student at Perley-Robertson, Hill & McDougall. She can be reached at mwills@perlaw.ca or 613.238.2022.

Posted in Citizenship, Immigration to Canada

Trump’s Travel Ban: America’s Loss, Canada’s Enduring Opportunity

Canada and the United States are friends, partners and allies; in trade, in security, and in international affairs. What happens south of the border impacts Canada heavily, for better or for worse. It is no wonder, then, that when Canadians woke up Saturday morning to news of Trump’s Executive Order restricting travel from seven Muslim-majority countries, they wondered “what does this mean for Canada?”

In the immediate term, our concerns as immigration lawyers were for our clients holding passports from these nations. Does the ban affect dual citizens? Green card holders? Should we advise recent arrivals to Canada not to travel to the United States? These questions continue to occupy many of us, especially as chaos still reigns in airports across the world, Canada included. As the news has begun to sink in, however, the questions have inevitably turned to what comes next: how will the U.S. administration’s policies affect Canada in the long-term.

America’s loss could be Canada’s gain. Equally, those who initially intended to move to the U.S. may look forward to a bright future ahead of them in Canada.

The U.S. administration’s travel ban affects over 130 million people from some of the world’s most vulnerable countries. Until January 27, 2017, the United States was the next frontier for many doctors, scientists, tech workers, engineers, and entrepreneurs who saw their futures not in the failing states and war-torn countries affected by the ban, but rather in North America. Like many before them, they were inspired by the symbol of Lady Liberty in New York Harbor and the poem etched at her base: “I lift my lamp beside the golden door!” While America’s lamp now burns dimmer, Canada’s still burns bright and, as the Canadian Prime Minister tweeted on Saturday, we are proud to declare that “Diversity is our Strength”.

Diversity will be even more important to Canada in the future. Canada’s demographics, like those of most Western countries, are shifting. As Canadians get older, a heavier and heavier burden is being placed on a gradually shrinking population of working-aged people to fund the health care and other needs of our aging parents and grandparents. As the population pyramid swells at the top, Canada must supplement the younger segment of the population in order to prevent that pyramid, and by extension, our economy, from toppling over. A robust and positive immigration program is part of the solution.

While we must proceed carefully, Canada should take this restrictive U.S. Executive Order as the spark of an enduring opportunity to attract the best and brightest to our country, to help Canada build a dynamic and sustainable 21st century economy. Our local experience in Ottawa is that business leaders, large and small, identify finding talent to fill jobs as their greatest challenge. There are many ways to bridge this talent gap but one of the best is to attract skilled workers from abroad. Canada’s economy is driven by those from abroad who work tirelessly to power the engines that propel our country forward. Among these are immigrants and refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Individuals from these countries have contributed to every sector of our economy. Those who come to Canada seeking to build new lives devote themselves, in return, to making our country stronger.

The Canadian Prime Minister’s tweet must be backed up by action aimed at making the most of our opportunity and living up to our obligations as a member of the international community. Immigration Minister Hussen’s prompt announcement that Canada will grant Temporary Resident Permits to those stranded in Canada with U.S. visas who are currently barred from entering that country is a good start but more must be done. Canada should look favourably upon those currently in other countries who have already been vetted and approved by U.S. authorities and consider welcoming them as foreign workers and ultimately permanent residents. We support the letter signed by over 2,000 tech leaders calling for an “immediate and targeted visa” for those people from the seven countries affected by the ban, which could allow them to temporarily work in Canada. This chance to add to our human capital with skilled individuals seeking a new home should not be squandered.

Apart from the economic opportunity that a new wave of talented immigrants could mean for Canada, we cannot forget our obligation, grounded in international law, to accept refugees and provide safe haven for those fleeing war, terror and persecution. The Canadian Bar Association, Amnesty International, the Canadian Association of Refugee Lawyers and law professors from across the country, among others, have all called on the Government of Canada to reassess its Safe Third Country Agreement with the United States. As long as refugees are barred from the United States, Canada should consider whether we can do more to alleviate the suffering of refugees the world over. This should start with considering the claims of asylum-seekers who have already been approved to be re-settled in the United States but who are now barred from entry due to the Executive Order.

Canada has an opportunity to become the global leader in immigrant attraction and refugee resettlement. We can use this opportunity to attract the skills we need to power our economy and support our population into the future. While the new U.S. President bans millions through the politics of fear, Canada must show those potential immigrants and refugees that our best days, as well as theirs, are still ahead of us and that we can get there together.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Adam Sadinsky is a Student-at-Law at Perley-Robertson, Hill & McDougall. He can be reached at asadinsky@perlaw.ca or 613.238.2022.

Posted in Citizenship, Immigration to Canada, Refugee Claims

Know Your Obligations When Employing a Foreign Worker

Foreign workers are valuable additions to a workplace, but failure to comply with the Regulations can lead to heavy consequences. In this article, we will provide you with tips on how best to comply with the requirements, and also alert you to the potential consequences of failure to do so. 

Attaining a positive Labour Market Impact Assessment (LMIA) is not an easy task these days.  And the work does not end when that LMIA is issued. In fact, complying with requirements imposed by the Immigration and Refugee Protection Regulations[1] is an ongoing obligation for employers which must be followed vigilantly. 

A Canadian employer who employs foreign workers through the Temporary Foreign Worker Program must comply with four (4) requirements according to the Regulations[2]:

  1. The employer must be actively engaged in the business in respect of which the offer of employment was made (unless the offer was made for employment as a live-in caregiver);

  2. The employer must comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works;

  3. The employer must provide the foreign national with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same as—but not less favourable than—those set out in that offer; and

  4. The employer must make reasonable efforts to provide a workplace that is free of abuse.

The requirements are fairly simply, albeit vague. It boils down to providing foreign workers with good working conditions and making sure that the job they are actually doing is “substantially the same as” the one they were offered. The government has not provided much guidance as to the meaning of “substantially the same as”. 

There are three potential ways that Employment and Skills Development Canada (ESDC) can review your compliance:

  1. Random inspections;

  2. Employer Compliance Reviews, which occur as part of the LMIA application assessment process to verify past compliance; and

  3. Reviews under Ministerial Instruction, in which public policy considerations may justify the revocation of an active LMIA or a refusal to process an application.

It should be noted that LMIAs may be suspended during any of the three types of reviews.

Employers may be selected for inspection if:  there is reason for an ESDC officer or the Minister to suspect that the employer is not complying or has not complied with these conditions; the employer has, in fact, not complied; or even simply as part of a random verification of compliance.  Now a past compliance review means  reviewing only the past two years.  In 2020, this will change to six years, i.e. in year 2020 compliance review dating back to 2014 can be assessed. 

If the review finds that an employer has not complied with the requirements, there are a number of potential penalties that can be applied. The following consequences are applied to employers found to be non-compliant prior to December 2015:

  1. A two-year ban from using the TFWP;

  2. Publication of their name, address and period of ineligibility on a public website;

  3. Issuance of a negative LMIA for any pending applications; and/or

  4. Revocation of previously issued LMIAs.

Since 2015, the consequences for non-compliance with employer requirements have become more significant. Non-compliance after December 1, 2015 carries the following possible consequences:

  1. Warnings;

  2. Administrative Monetary Penalties ranging from $5,000 to $100,000 per violation, up to a maximum of $1 million per year, per employer.

  3. A ban of one, two, five or ten years, or permanent bans for the most serious violations;

  4. Publication of the employer’s name, address and details of the violation(s) and/or consequence(s) on a public website; and/or

  5. Revocation of previously-issued LMIAs.

All of these consequences are based on a demerit point system, which takes the following factors into account:

  1. Type of violation;

  2. Size of the employer’s business;

  3. Employer’s history of non-compliance;

  4. Severity of non-compliance; and

  5. Whether the employer voluntarily disclosed information about potential non-compliance before an inspection was initiated.

The last point is significant as non-compliant employers are given the option to voluntarily disclose non-compliance so long as the disclosure is made prior to any compliance or enforcement action being taken. While it may be tempting to hope that the Departments of ESDC and Immigration, Refugee, and Citizenship Canada (IRCC) will not notice non-compliance, voluntary disclosure could be the difference between a temporary and a permanent ban or tens of thousands of dollars.

Foreign workers can add a lot of value to a workplace but the privilege of employing them comes with obligations. While the consequences of failing to comply with LMIA requirements are serious, the requirements are relatively easy to follow. As long as employers are careful to ensure that they are compliant, and honest and open once they realize they may have fallen below that standard, the most significant penalties can be avoided and the employer will receive the full benefit of employing a foreign worker.

Warren Creates is the Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Adam Sadinsky is a Student-at-Law at Perley-Robertson, Hill & McDougall. He can be reached at asadinsky@perlaw.ca or 613.238.2022.


[1]Immigration and Refugee Protection Regulations (SOR/2002-227).

[2]Ibid at s. 209.2(1)(a).

Posted in Immigration to Canada, Temporary Foreign Worker Program

U.S. Immigration to Canada: Strength and Opportunity through Diversity

 

“Deep in our history of struggle for freedom, Canada was the north star. The freedom road links us together.”

When U.S. President Barack Obama invoked the words of Dr. Martin Luther King Jr. when addressing the Canadian House of Commons in June 2016, few could have imagined that the election of Donald Trump would once again turn American eyes to the North. On election night, as state after state turned Republican red, the website of the Canadian Department of Citizenship, Immigration and Refugees crashed. Moving to Canada could be an option for many Americans (and others) who no longer see their own values reflected in their country’s leadership and growing divisiveness.

President Obama summed up the shared values between Canada and the United States later on in his speech to our Parliament.  Those values include “pluralism and tolerance, rule of law, openness, global engagement, and commerce, and co-operation, coupled with equal opportunity and an investment in our people at home.”

In Canada, these values are alive and well. Prime Minister Trudeau acknowledged this in his introduction of President Obama, saying “[t]he North American idea that diversity is strength is our greatest gift to the world. No matter where you are from, nor the faith you profess, nor the colour of your skin, nor whom you love, you belong here. This is home.” Canada alone now seems to be the guiding light for these values.

To those Americans (and of course others) who want to live in a country that values diversity and progress, we welcome you. As the President-Elect plans to close America’s doors (and build a wall), Canada is in the process of implementing a robust plan to increase our population and build a stronger country by actively recruiting the skill and experience of those from abroad. We value not just demographic diversity but diversity of values and beliefs. Canada’s future depends on the contributions of newcomers.

In the words of Canadian Prime Minister Justin Trudeau: “Canada is a country strong not in spite of our differences but because of them.” Canada has been a leader in welcoming Syrian refugees, the latest in a long line of communities who have sought new and better lives on our shores. Canadians are proud of our Charter of Rights and Freedoms, which emphasizes equality for all and has led Canada to be a leader in legalizing same-sex marriage.

The United States is Canada’s sixth largest source of immigrants. Throughout our history, many have moved north to do business, reunite with family, and to find love. The North American Free Trade Agreement, which united the diverse populations and economies of the United States, Canada and Mexico, has led not only to the free flow of goods between our countries but also of people. Thanks to NAFTA and our bilateral relationship, American citizens do not need visas to visit Canada and can apply for work permits. While Canada cannot accommodate every potential immigrant, American applicants for permanent resident status will find themselves nearer to the front of the line and with shorter wait times than those from elsewhere.

For 45 years our team at Perley-Robertson Hill & McDougall have represented American professionals, families, small business owners and entrepreneurs to navigate the process of becoming Canadian. Warren Creates is a certified specialist in Citizenship and Immigration Law (Immigration and Refugee Protection) and has successfully helped thousands of businesses and individuals create new beginnings in Canada.

In his 2015 victory speech, Prime Minister Justin Trudeau explained that “[w]e know in our bones that Canada was built by people from all corners of the world who worship every faith, who belong to every culture, who speak every language. We believe in our hearts that this country’s unique diversity is a blessing.”  We, like you, are a nation of immigrants. Our country is stronger because of the diversity of skills and experience of those who came here to build better lives and a better country. Give us a call or write us so we can help you navigate the path of coming to Canada.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Adam Sadinsky is a Student-at-Law at Perley-Robertson, Hill & McDougall. He can be reached at asadinsky@perlaw.ca or 613.238.2022.

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Posted in Immigration to Canada

Canada’s New Express Entry System: What We Know So Far

The” Express Entry Mid-Year Report”, issued in July 2015, offers valuable insight into the state of the new Express Entry system for economic immigration to Canada. This article outlines the system’s track record so far, and explores what it means for Canada’s evolving immigration landscape.

In July 2015, Citizenship and Immigration Canada (CIC) released its Express Entry Mid-Year Report. The Report covers the first six months of Canada’s revamped system for screening and processing economic class permanent residence applications, known as the “Express Entry” system. The data presented in the report was taken from 6 July 2015. Since the system data changes day to day, the report offers only a snapshot in time. Still, that snapshot provides some telling insight into how Express Entry is faring so far.

Who are the candidates?

The only way to guarantee selection from the Express Entry candidate pool is with a permanent job offer based on a positive Labour Market Impact Assessment (LMIA) or provincial nomination. Obtaining the ‘golden ticket’ of an LMIA-based job offer is difficult, since it requires the Canadian employer to go through the lengthy and expensive process of proving that there is no qualified Canadian available to fill the position for which a foreign worker is being sought. Without this type of job offer, it is impossible for a candidate to obtain more than 600 points under Express Entry’s Comprehensive Ranking System.

Given that obtaining an LMIA-based job offer is so difficult, it is not surprising that most applicants to the Express Entry candidate pool so far have had less than 600 points. The vast majority of candidates waiting in the pool as of July 2015 were assigned point totals in the range of 250-499 by the Comprehensive Ranking System. So far, no candidates with less than 450 points have been selected out of the Express Entry pool.

Over 85% of Express Entry candidates invited to apply for permanent residence have been resident in Canada on temporary status. This is also unsurprising, given that it would be difficult to achieve a points total of 450 or above without experience living and working in Canada.

The top five countries of citizenship for invited candidates are India (20.8%), the Philippines (19.4%), the United Kingdom (7.4%), Ireland (5.3%) and China (4.1%).

An ‘Invitation to Apply’ is not enough

In the first six months of Express Entry, CIC issued just over 12,000 ‘Invitations to Apply’ for permanent residence to candidates in the Express Entry pool. Of those candidates fortunate enough to be issued this invitation, 7,528 had submitted their applications for permanent residence by July 2015. Of these submitted applications, 655 had been approved by CIC and 5,835 were still in process in July 2015.

These numbers imply that 1,038 applications have been rejected so far—more than the number approved. While the report does not detail statistics on the reasons for refusals, we can speculate based on what we have seen and heard in our practice. It seems that many refusals have been based on failure to provide certain documents such as police clearances. In many cases, candidates were not aware that these documents were required due to lack of clarity within the online application system.

In our practice, we have seen applications rejected based on CIC’s errors, oversights and misinterpretations. Unfortunately, once the decision to refuse is made, it can be very difficult to reverse—even in cases where the applicant has done everything right. CIC has unfortunately not developed a standardized review process that a candidate can utilize when a mistaken rejection is suspected.

Technical Difficulties with the CIC Portal

Express Entry was introduced with the promise of being a simple and streamlined system that would remove the need for complicated mail-in application procedures. While this may one day prove true, the first nine months have been fraught with frustration for system users. The online system frequently malfunctions. Design flaws result in lack of prompt for certain required documents and conversely, confusing prompts for documents that are not required. CIC has acknowledged the system’s technical flaws. However, until these issues are addressed, candidates and representatives are stuck working within a system that leaves much to be desired.

Bridging the Gap

Before Express Entry, “bridging work permits” proved to be a saving grace for those seeking to remain in Canada pending the finalization of their permanent resident status. This program allowed for extension of an existing work permit so long as a permanent residence application was pending. However, a bridging work permit is only available upon confirmation that an economic permanent residence application has received a ‘positive eligibility assessment’ and been accepted into processing. This means that those candidates waiting in the pool who have not yet received an invitation to apply are not eligible for the bridging work permit. If a candidate’s temporary status in Canada expires before an Invitation to Apply is issued, they may have no other option but to leave Canada and hope for an invitation to be issued while abroad.

As well, even those who do receive Invitations to Apply are facing the prospect of being uprooted from their lives in Canada. CIC has not been issuing ‘positive eligibility assessment’ letters so far.  Express Entry has therefore led to a lack of options for applicants and their employers who prefer that the applicant’s employment in Canada continue without interruption until permanent residence is achieved.

Foreign Students Left Behind

Upon introduction of Express Entry, there was much concern that foreign students in Canada would be disadvantaged by the new system. Previously, students could apply for permanent residence after completing a qualifying Canadian program of study plus work for only one year in a skilled position on a post-graduate work permit. Since a post-graduate work permit is not an LMIA-based work permit, it offers no guarantee of an Invitation to Apply under the new system. Given that most foreign students lack significant work experience, their chances of being approved for an LMIA-based work permit are minimal.

Statistics are not yet available on how foreign students are faring under the new system. But CIC has provided little assurance to foreign students who came to Canada in hopes of achieving permanent residence, and are now concerned that they will never receive the coveted Invitation to Apply.

The Bottom Line

Many of the technical and administrative glitches within the Express Entry system will hopefully be resolved with time. More structural concerns about particular candidates, like foreign students, being shut out under the new application system have yet to be addressed by CIC. It is clear that more time must pass before the initial kinks are worked out and the full impacts of the new system are realized. For the time being, potential economic immigrants to Canada must be prepared to muddle through an often frustrating and uncertain system still in its infancy.

We would be happy to speak to you about Express Entry, and about immigration to Canada more generally. Please contact us to set up a consultation appointment.

- Warren L. Creates and Jacqueline J. Bonisteel

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Posted in Immigration to Canada

Working in Canada: What is Work, and when is a Work Permit needed?

In the Canadian immigration context, ‘work’ is broadly defined. Even volunteers, those providing services in a private residence, and student interns may require a work permit, and may run into trouble if they do not have one. This article helps to explain when a work permit is needed and why.

Beware the dreaded report from the Canada Border Services Agency (CBSA):  working without a work permit!  It is often a fatal allegation, and hard to disprove. Deportation can often result.

The test is balance of probabilities, and grounds to believe.  The threshold is rather low.  All the Canadian government needs is “reasonable grounds to believe” that a foreign national has done any work at all, even in the form of help, without having a valid work permit.

The Regulations to the Immigration and Refugee Protection Act (IRPA) contain the general definition of “work” requiring a work permit:  any “activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market”.

Like most of our Canadian laws, it is not the legal definition that tells the story, but instead the interpretation of it by government policy-makers, immigration officials, and courts.

The news here is rather unfortunate.  Whereas business owners, managers, visitors to Canada and other foreign nationals in Canada hope for a permissive or relaxed interpretation, the opposite is generally true.  The definition in the Regulations has been interpreted as broadly as can be imagined.

Businesses and employers often feel that they can skirt the law by treating the worker as unpaid or as a “volunteer”, and remunerate (i.e. pay) the worker “conditionally” only once they have received authorization to work, or once their Canadian permanent resident status is obtained.  But arrangements that include banked hours and retroactive pay for services previously rendered are unlawful.

The definition of “work” can also include unpaid employment undertaken for the purpose of obtaining work experience, such as an internship or practicum normally done by a student.  Compensation arrangements such as accommodation and meals instead of payment in money have also been considered and found to require a work permit.

Tasks as nominal as unpacking boxes, carrying vegetables to a kitchen in a restaurant, cooking or food preparation in the restaurant kitchen, answering the phone of the business and taking messages, taking orders from customers, and childcare have all been determined to be significant enough to constitute work requiring a work permit. If the task—no matter how insignificant in the eyes of the worker or of the business—might have reasonably deprived someone else of employment, then a work permit is required.  Another way to look at it is like this:  if the employer benefitted in any way at all from the task(s) or services performed by the foreign national, then it is fair to assume that a work permit is required.

Courts have also grappled with the situation involving an individual, often a visiting relative, performing tasks in a private residence.  There is some good news here:  not all tasks performed by a visitor for a relative are considered work requiring a work permit, even when the Canadian resident would normally need to hire a paid employee to have the tasks completed.  Consider, for example, babysitting, cleaning, or garden work. These tasks would not normally require a work permit when done in a private residence by a visiting family member.

Courts have determined that it is the intent of the legislation to protect employment opportunities, no matter how minor, for all citizens and permanent residents of Canada. Arguably, this rationale also applies for those who have already been authorized for temporary work permits.

The Department has even tried to define what is NOT work:  any activity that does not really “take away” from opportunities for Canadians or permanent residents to gain employment or experience in the workplace.

The lesson is this:  it is all in the eye of the beholder.  Foreign nationals and Canadian organizations do not want to be involved in any litigation where the issue is work without authorization.  Such hearings are stressful, costly, and usually unsuccessful, because of the broad interpretation.  If a work permit exemption is being relied upon, it is best to disclose and seek it ahead of time, to have the regulator review the circumstances and approve it.

We would be happy to speak to you about your specific questions surrounding authorization to work in Canada. Please contact us to set up a consultation appointment.

- Warren L. Creates and Jacqueline J. Bonisteel

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Posted in Uncategorized

Express Entry: Top 5 Tips

On January 1st of this year, the Canadian federal government launched a revamped ‘Express Entry’ system for economic immigration to Canada. This article outlines the basics of Express Entry and provides our Top Five Tips for potential applicants.

Until the new Express Entry system was unveiled on 1 January 2015, potential economic immigrants to Canada followed a straightforward application process with a predictable outcome. So long as an applicant met the qualifying criteria, included the right documents, and applied before the yearly application quota was met, the application would eventually be approved. This system applied for the Canadian Experience Class (CEC), the Federal Skilled Worker Program (FSWP), the Federal Skilled Trades Program (FSTP), and the Provincial Nominee Program (PNP). Though the wait was often very long, each applicant was ensured an eventual decision on their application.

The new process is more akin to an online dating site: each prospective economic immigrant fills out an online profile. Upon completing the profile, the electronic database will assign a points total based on a ‘Comprehensive Ranking System’. Points are awarded for factors such as Canadian work experience, education, and language skills. A profile will remain in the system for up to 12 months.

The Canadian government then periodically picks out the top-ranked profiles from the system and invites them to pay the processing fee and submit a formal application for permanent residence. Eventually, Canadian employers will also be able to access the Express Entry database in search of foreign talent.

To be sure, the new Express Entry system has positive aspects. Once a potential immigrant with a current online profile receives the invitation to apply, the Canadian government has undertaken to process the application within six months—a significant improvement from processing times under the old system. As well, all former occupation-specific quota caps and moratoriums have been eliminated. One of the key intentions of the Express Entry system is to make the Canadian immigration system more responsive to up-to-the-minute labour market needs, which is a worthy goal.

However, the downsides are numerous. An applicant who uploads a profile will never be completely certain of the outcome. A worker or student’s temporary status in Canada may expire before they are ever selected. Some applicants will never be selected. The transparency concerns are numerous for a system that can change without notice at any time. At this stage, many computer system glitches remain unresolved.

So what is a potential applicant to do?  Here are our Top Five Tips.

(1)  Eligible? Apply Now.

In order to submit your name into the pool, you need to meet basic qualification criteria. The first step is to determine whether your language skills, education, and work experience are sufficient to allow you to apply under one of the economic immigrant categories listed above. It is advisable to create your profile as soon as you are eligible, particularly in these early days when the number of applicants in the system is more limited.

(2)  ‘LMIA’ All the Way

A job offer in Canada is a significant positive factor. Some Canadian job offers are made following a positive Labour Market Impact Assessment (LMIA), while others are not. If you can obtain an LMIA-based job offer, your chances of selection from the pool go up significantly. If this is a potential option in your case, it is very likely worth exploring.

(3)  Ensure You Have the Right Documents

Anything you state on your Express Entry profile will eventually need to be backed up with documentation once you are invited to apply. It is essential to have the correct documentation in place before submitting your profile. If you state something that turns out to be false, you risk being found inadmissible for misrepresentation—an offence with very serious consequences. Exercise caution in completing the profile.

(4)  Update Your Profile

Once your profile is built, you will know your points total. Since the government publishes the lowest points scores accepted on each draw, you will have a sense of how you measure up, and your likelihood of selection. If your points total is in the low range, there may be steps you can take to increase the total, such as re-taking a language test, or obtaining an LMIA-based job offer. Your profile can always be updated, so these steps may be worth pursuing.

(5)  Work with an Experienced Immigration Lawyer

Canadian immigration law professionals have been following the Express Entry developments closely. We can help ensure that your profile is as strong as possible, and can recommend ways to make it stronger. The assistance of a skilled representative can help avoid processing delays, avoid other pitfalls, and increase your prospects for successful immigration to Canada.

We would be happy to speak to you about economic immigration to Canada. Please contact us to set up a consultation appointment.

- Warren L. Creates and Jacqueline J. Bonisteel

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Spousal Sponsorships and Appeals: What You Need to Know

A Canadian citizen or permanent resident is entitled to sponsor their spouse, common-law partner or conjugal partner for Canadian permanent residence.  The concept may be simple, but the process can be fraught with complications and delays. This article describes some important considerations, and discusses the options if your application is refused.

Should you submit an “Inside Canada” or “Outside Canada” Application?

For spouses or common-law couples ready to pursue Canadian spousal sponsorship, the process can be daunting. One of the first decisions to be made is whether to pursue the “inside Canada” or the “outside Canada” spousal sponsorship process. If the applicant being sponsored resides outside Canada and will continue to do so until the sponsorship is finalized, the “outside Canada” process must be chosen. Sponsored spouses who travel back and forth to Canada often will also likely select the “outside Canada” process.

Spouses who wish to stay in Canada throughout the process may benefit from filing an “inside Canada” application. A major advantage is that this process allows the sponsored person to obtain a Canadian work permit upon “first-stage approval”. In some cases, an “inside Canada” application may also serve to prevent deportation for an applicant who is in Canada without status. However, applicants who submit an “inside Canada” application do not have a right of appeal if the application is refused.

These are just some considerations. An experienced immigration lawyer can help you to determine which process is best for you.

The Application Process

While the application process is technically divided into two stages, the sponsor and applicant will fill out all their paperwork at the same time and include it within the same application package. All documents on Citizenship and Immigration Canada’s checklist must be provided from the outset, and all forms must be properly completely. If documents are missing or mistakes are made, the application will be returned without being processed.

(1)   Stage 1 Processing

The first stage involves an evaluation of whether the Canadian citizen or permanent resident spouse meets all the eligibility criteria to act as sponsor. Citizenship and Immigration Canada’s  Mississauga processing center conducts this first evaluation. The sponsor must :

  • Be a Canadian citizen or permanent resident;
  • Be 18 years of age or older;
  • Be resident  in Canada or prove intent to return to Canada upon finalization of the sponsorship process;
  • Not be bankrupt or in receipt of social assistance;
  • Not be ineligible for reason of previous sponsorship default or a serious criminal conviction.

Unlike other types of family sponsorship, a person sponsoring their spouse or partner does not need to meet a minimum income threshold. However, the sponsor must undertake to provide for the sponsored partner’s basic needs and ensure that they do not use social assistance for a period of three (3) years, and ten (10) years for any dependent children.

(2)   Stage 2 Processing

Upon first-stage approval, the application is transferred to a different processing centre or visa office for Stage 2 processing. This second stage involves an evaluation of whether the spousal relationship is genuine, and whether there are any inadmissibility issues that would bar the applicant from becoming a Canadian permanent resident (e.g. medical or criminal inadmissibility).

The current government has made it a priority to combat “marriages of convenience” that are entered into primarily for immigration purposes. The officers who evaluate spousal sponsorship applications are on the lookout for signs that a relationship is fraudulent. Where the officer has concerns, the applicant will be called in for an interview. If the applicant cannot successfully address the concerns of the visa office, the spousal sponsorship application will be refused.

Sponsors and applicants must understand of the consequences of relationship breakdown during or after the sponsorship process. The permanent resident status of sponsored spouses is conditional on maintenance of the relationship for two (2) years. If the couple does not reside together for two (2) full years, the sponsored person will lose their permanent residence. There are exceptions in cases of domestic violence or children in common.

In the case of relationship breakdown, the sponsored person may not sponsor a new spouse or partner for a five (5) year period.

Overcoming Refusals

What are the options when a spousal sponsorship application is refused? It is always possible to withdraw the application and re-apply. This course may be recommended where new information or new developments since the time of the initial application strengthen the application significantly.

The other option, for applications that were submitted from outside Canada, is to appeal the refusal to the Immigration Appeal Division of Canada’s Immigration and Refugee Board. Sponsors have the right to go before an independent Immigration and Refugee Board decision-maker to argue why the refusal decision should be overturned. The sponsor may present updated evidence to show the genuineness of the relationship.

If your appeal before the Immigration and Refugee Board is unsuccessful, it may be possible to seek judicial review before Canada’s Federal Court.

The appeal process is long and arduous. It is currently taking up to two years to receive a date to appear before a decision-maker. This prolonged period of separation and uncertainty can be incredibly difficult for couples.

How an Experienced Immigration Lawyer Can Help

The spousal sponsorship process can be long, complicated and stressful. Our team of experienced immigration professionals will assist you every step of the way. We will help you to avoid the significant delays that can be caused by omitted documents or improperly -filled forms. We will also help to make your application as persuasive as possible.  In other words, we can help to maximize the chances of success. This has the potential to save you significant time, money, strain and separation in the long-run.

If your application is refused, our team can help you determine whether it is worthwhile to pursue an appeal. If you do choose to file a spousal sponsorship appeal, we will help you navigate the process, put together strong supporting evidence, prepare you to testify, and advocate for your rights before the Immigration and Refugee Board and/or the Federal Court.

We would be happy to speak to you about your spousal sponsorship matter. Please contact us to set up a consultation appointment.

- Warren L. Creates and Jacqueline J. Bonisteel

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Key Changes to Canada’s Citizenship Act

In June 2014, just before breaking for the summer, Canada’s parliament passed major amendments to the federal Citizenship Act. While many of the changes have not yet come into force, potential citizenship applicants should be paying close attention.

Residency Requirement

Previously, to apply for citizenship, a Canadian permanent resident needed to meet a “three years out of four” residency requirement. Also, time physically spent in Canada prior to becoming a permanent resident could be applied as a credit towards the citizenship residency requirement.[i]

Significantly, “residency” was not necessarily defined as “physical presence” prior to these new amendments. As detailed in our earlier article on this subject, the pre-existing legislation gave citizenship judges discretion to grant citizenship in deserving cases based on “establishment in Canada” as opposed to “physical presence” alone.

The new legislation eliminates this discretionary authority to equate “residency” with “establishment in Canada”. Citizenship will now only be granted if the residency requirement is met by way of physical presence. The residency requirement is also being made much more onerous:

  • Citizenship applicants must be physically present in Canada for four years out of six years (1,460 days) prior to the date of application;
  • At least 183 days per calendar year must be spent on Canadian soil each year. This requirement must be met for four of the six calendar years preceding the date of application;
  • At least four Canadian tax returns must have been filed during the relevant  period; and
  • Time spent in Canada prior to permanent residence will no longer be counted towards the residency requirement.

These changes to residency requirements are expected to come into force in spring 2015. Until then, the pre-existing provisions continue to apply. As such, a person with three years of residency in Canada, based either on physical presence or “establishment in Canada”, can still apply for citizenship for the time being.

If the residency requirement and other existing eligibility requirements (e.g. language ability) are met, potential Canadian citizenship applicants are well-advised to apply without delay.

Intent to Reside

A new “intent to reside in Canada” provision is being introduced with the new legislation. It is still somewhat unclear how this will be applied in practice. However, we can anticipate that it may be necessary to provide stronger evidence of ties to Canada and lack of ties to other countries.  As well, if an applicant declares an intent to reside in Canada and then resides elsewhere upon obtaining citizenship, allegations of misrepresentation could arise.

The “intent to reside” requirement is not yet in force, and the Canadian government has not announced when the change will be implemented.  Again, potential citizenship applicants who meet existing eligibility criteria are advised to apply as soon as possible. Applicants who apply now may avoid this additional requirement.

Language Requirements

Previously, adults aged 18-54 needed to meet the language requirements for citizenship. The new legislation expands the language requirement:  applicants aged 14-64 must prove language ability.

As well, the pre-existing legislation allowed for the knowledge test for citizenship to be taken with the assistance of an interpreter. This option is now being eliminated. The test must be completed in English or French without assistance.

The more onerous language requirements are not yet in force, and the Canadian government has not confirmed when implementation will occur.  Any potential Canadian citizenship applicants concerned about meeting the expanded language requirements should consider applying now if existing eligibility requirements are met.

 

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist potential applicants with evaluating eligibility for Canadian citizenship, preparing comprehensive application packages, addressing any potential complications, and advising on the changing rules and requirements. Having accurate information and proper legal advice is key in this challenging environment. Please contact us to set up a consultation appointment.

- Warren L. Creates and Jacqueline J. Bonisteel

 


[i] For time in Canada prior to permanent residence, one day in Canada counts as one half day of residency.

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Foreign Cooks, Chefs and Restaurant Workers in Canada

We specialize in assisting foreign cooks, chefs and restaurant workers obtain temporary or permanent status in Canada. With the recent changes to Canada’s Temporary Foreign Worker Program and the Canadian Experience Class, it has become more challenging for cooks, chefs and restaurant workers to achieve optimal status. We can help.

Our team has particular expertise in working with foreign cooks, chefs and restaurant workers, as well as the establishments that employ them. We have assisted hundreds of restaurants and restaurant employees with applications for work permits, labour market opinions (LMOs), and permanent residency in Canada.

In July 2013, the Toronto Star reported that Canada issued more work permits to foreign cooks than any other occupation. Cooks and chefs with specialized experience and expertise are always in high demand across the country.

However, the fact that the highest number of work permits were awarded to food service workers was controversial to some Canadians. Some argued that there is no shortage of Canadians to fill these jobs, so there is no need to bring in temporary foreign workers at all. More generally, Canada’s temporary foreign worker program has been under severe scrutiny in recent months.

In response to this criticism and controversy, the Canadian government has instituted measures making it more difficult for cooks and restaurant workers to obtain status in Canada. The requirements for an employer to obtain a Labour Market Opinion, the first step towards a work permit, have been made significantly more onerous. For instance, employers now need to advertise each position for at least four (4) weeks and pay a $275 processing fee per application. Employers also face strict compliance measures. Only the most motivated employers will be willing to undergo the necessary steps.

As well, due to recent changes to the eligibility criteria, permanent residence under the Canadian Experience Class (CEC) is no longer available to cooks or food supervisors. Chefs, butchers, bakers and other “National Occupation Classification B” occupations remain eligible for the CEC, but the number of accepted applications is presently capped at 200 per category per year.

In this new environment, preparing strong applications is essential. Success is certainly possible for the right foreign worker applying in the right category. Now more than ever, it is important to submit properly filled forms and good supporting documentation.

 The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both restaurants and foreign workers with assessing work permit requirements, preparing comprehensive application packages, and addressing any potential complications.

- Warren L. Creates and Jacqueline J. Bonisteel

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