Saturday, 22 December 2012

Ghost Consultants and Skilled Worker Changes

Filipiniana News – December 2012
RHYME & REASON

Despite the entry into force of a laudable legislation termed, “Cracking Down on Crooked Consultants” (Bill C-35) in June 2011, it appears that ghosts consultants are still operating in these parts with relative impunity.     

For those not familiar with the term, “ghost consultants” usually refer to people who accept fees or other consideration for providing immigration advice or services but whose identities are not on any of the documentation submitted to the government mainly because they are not duly-licensed lawyers, paralegals or immigration consultants.    

Bill C-35 (officially called, An Act to Amend the Immigration and Refugee Protection Act), makes it an “offence for anyone other than an authorized representative to conduct business, for a fee or other consideration, at any stage of an application or proceeding.”
Ghost consultants therefore, are clearly punishable under this law and if found guilty, could face punishments ranging “from $50,000 to $100,000 and/or imprisonment for up to two years upon conviction by indictment; and from $10,000 to $20,000 and/or imprisonment for up to six months on summary conviction.” 
If there is such a law prohibiting the activity and imposing substantial penalties, how are ghost consultants able to continue in business and get away with it?   From what I have gathered, some ghost consultants are very shrewd about avoiding any paper trail by only accepting cash payments or refusing to issue any receipts, for instance.  For some reason, they are also good at convincing their clients to tell the authorities that they do not have a legal representative and are doing the immigration application on their own, even if this is clearly not true. 

As a result, the ghost consulting business goes on, and appears to be even flourishing, leaving behind a trail of empty pockets and shattered immigration dreams.

We can all try to contribute our share in stopping this criminal activity and preventing others from being similarly victimized by following a few simple guidelines:  a) if you have directly dealt with ghost consultants and have some evidence of this illegal activity, report the matter to the authorities as soon as possible;  b) never consent to any advice which induces you to commit fraud or misrepresentation in any immigration submission or application;  c)  before retaining the services of a legal representative or consultant, check with the relevant regulatory body to confirm whether the person concerned is a member in good standing; and d) always require invoices or receipts for payments made and services rendered.

Hopefully, these simple guidelines will help reduce if not eradicate this illegal activity which preys on people’s desperation to gain the much-coveted immigration status in Canada.

***
Meanwhile, Citizenship and Immigration Canada (CIC) continues on its path towards introducing further reforms to the immigration system.  Aside from unveiling a brand-new interactive website this month, CIC revealed more details regarding the previously announced changes to two permanent residence application categories, both of which will take effect on 2 January 2013.   

These changes involve the new Skilled Trades Stream under the Federal Skilled Worker category and the revised Canadian Experience Class. 

“The new Skilled Trades Stream will help address serious labour shortages in some regions of the country, and support economic growth,” CIC Minister Jason  Kenney said. “For too long, Canada’s immigration system has not been open to these in-demand skilled workers. These changes are long overdue and will help us move to a fast and flexible immigration system that works for Canada’s economy,” he added.   

According to the new CIC guidelines, to qualify for permanent residence in Canada under the Skilled Trades Stream, the applicants will need to:
  1. have an offer of employment in Canada or a certificate of qualification from a province or territory to ensure that applicants are “job ready” upon arrival;
  2. meet a basic language requirement;
  3. have a minimum of two years of work experience as a skilled tradesperson, to ensure that the applicant has recent and relevant practice as a qualified journeyman; and
  4. have the skills and experience that match those set out in the National Occupational Classification (NOC B) system, showing that they have performed the essential duties of the occupation.
CIC also announced that that it will “accept up to a maximum of 3,000 applications in the first year of the Federal Skilled Trades Program.”
The Canadian Experience Class on the other hand, has been amended to reduce the work experience requirement to 12 months (from the previous 24 months) for temporary foreign workers in Canada and will allow international students up to 36 months (from 24 months prreviously) within which to complete the required one year of work experience after completing a two-year full time study program at a Canadian educational institution. 
Hopefully, these significant changes to Canada’s immigration programs will benefit many prospective immigrants who may not have qualified under the old rules. 

Merry Christmas and a Blessed New Year to all! 
  
The author is a Canadian immigration lawyer and may be reached at deanna@santoslaw.ca.  This article is meant for legal information purposes only and not intended to provide specific legal advice.  It is strongly recommended that you consult with a legal professional to discuss your particular circumstances


Tuesday, 27 November 2012

Stricter Rules for Spousal Sponsorships

Filipiniana News – November 2012
RHYME & REASON
  
When people find out that I am an immigration lawyer in Canada, one of the most frequently asked questions is this:  “what is the easiest and fastest way to immigrate to Canada?”  

The proper response to this type of question is that there is no short and simple answer as it would greatly depend on the specific qualifications and circumstances of the prospective immigrant.    However, a number of prospective immigrants (or their families) have told me that they were advised that the fastest and easiest way to immigrate to Canada is to be sponsored by a Canadian citizen or permanent resident spouse.   They were told that they can try to look for (or even pay) a Canadian citizen or permanent resident to marry them, submit an application for spousal sponsorship and voila, one can obtain permanent resident status in a few or several months.  Some are also told that they can obtain a quick divorce from the Canadian citizen or permanent resident spouse shortly afterwards then move on with their lives. 

If this scheme worked for some in the past without getting caught, it will be much more difficult, if not impossible, to get away with such fraudulent exercise under the present stricter spousal sponsorship regulations. 

The scheme that these clients are describing is what Citizenship and Immigration Canada (CIC) refers to as “marriages or relationships of convenience.”   Since cases of marriage fraud have proliferated for many years, CIC has decided to impose stricter regulations for this class of immigration applications, i.e. family class applications for spouses, common-law partners and conjugal partners. 

Conjunctive to Disjunctive Test for Bad Faith Marriage

In September 2010, CIC amended section 4 of the Immigration and Refugee Protection Regulations (IRPR) as a way of further discouraging so-called marriages of convenience.  Prior to September 2010, the test was whether or not the relationship is “genuine” and was “entered into primarily” for the purpose of acquiring an immigration benefit (conjunctive test).  Under the new regulation 4 of the IRPR, the test has become whether the relationship is “genuine” or was “entered into primarily” to gain an immigration benefit (disjunctive test). 

What a huge difference a single word change could make.  That is, by changing the word “and” to “or”, spousal sponsorship applications have undergone much stricter scrutiny not only at the visa offices but also at the Immigration Appeal Division (IAD).  In the past, it is often enough that the visa officer or IAD board member finds that the relationship is genuine to be convinced that it was also not entered into primarily for immigration purposes. 

With the wording change, even a genuine relationship may now result in a refused sponsorship application if there is a finding that the parties entered into such relationship primarily to gain an immigration benefit.  As a result, many sponsorship applications based on genuine relationships may end up being refused if the person being sponsored has a problematic immigration history and the sponsorship application happens to be the only option available for the sponsored spouse to become a permanent resident and avoid separation from the sponsoring spouse. 

For more reasonable and sympathetic visa officers and IAD board members however, there is still room to argue that in the case of genuine relationships, gaining an immigration benefit is never the primary purpose for submitting a sponsorship application.  It is hoped therefore, that reasonable  decision-makers will prevail so that this regulatory change will not lead to more unjust refusals of the spousal sponsorship applications of genuine spouses and partners. 

Five-Year Bar

In March 2012, the proposed amendment to regulation 130(2) of the IRPR entered into force.  This change prevents anyone “who became a permanent resident as a spouse, common-law or conjugal partner from sponsoring a subsequent spouse, common-law or conjugal partner for a period of five years following the date they became a permanent resident.”

Like the previous change, the purpose behind this regulatory amendment is to discourage  sponsored spouses and partners from entering into a relationship of convenience to circumvent Canada’s immigration laws, separating from their sponsor then applying to sponsor a new spouse or partner shortly afterwards.  

Conditional Permanent Residence for Sponsored Spouses

Most recently, or in late October 2012, the CIC Minister announced yet another major change to Canada’s immigration regulations meant to discourage marriage fraud.  

The new regulations provide that the permanent resident status of those who obtained such status  after being sponsored by their spouses, common-law or conjugal partners, will be conditional on their having lived in a legitimate relationship with their sponsoring spouses, common-law or conjugal partners for a period of at least two years after becoming a landed immigrant.   This will apply to spouses or partners in a relationship of two years or less and who have no children in common with their sponsor at the time they submit their sponsorship application.

Thankfully, there are exceptions to this conditional permanent resident status requirement.  The exceptions include sponsored spouses or partners who are able to provide evidence of abuse or neglect.  “Abuse” could be either of the following:  “(i) physical abuse, including assault and forcible confinement; (ii) sexual abuse, including sexual contact without consent; (iii) psychological abuse, including threats and intimidation, and(iv) financial abuse, including fraud and extortion.”  “Neglect” on the other hand, consists of “the failure to provide the necessaries of life, such as food, clothing, medical care or shelter, and any other omission that results in a risk of serious harm.”
 
(Please note that the above are meant for legal information purposes only and not intended to provide specific legal advice.  It is strongly advised that you consult with a legal professional to discuss your particular circumstances.)

The author is a Canadian immigration lawyer and may be reached at deanna@santoslaw.ca. 

Saturday, 27 October 2012

Citizenship and LCP Updates

Filipiniana News – October 2012
RHYME & REASON

In case you missed the previous month’s announcements from Citizenship and Immigration Canada (CIC), discussed below are some highlights of further developments relating to Canadian  citizenship matters.    
For Live-in Caregiver Program (LCP) participants, also discussed below is a relevant update regarding the cancelled hotline for live-in caregivers that was created in 2009 by the Ontario Ministry of Labour to help protect and promote caregivers’ employment rights.     
New Language Requirement for Citizenship Applicants
Effective 1 November 2012, CIC will be having stricter requirements for proving the applicants’ knowledge of either the English or French language.   
Before this change took effect, the only way that CIC assessed a citizenship applicant’s knowledge of English or French is through casual interaction with CIC staff and by assuming the applicant’s  language ability through the results of the citizenship knowledge test.  
Consistent with one of the main reasons behind recent proposed changes to immigration applications under the Federal Skilled Worker category (discussed in this column last month), CIC officials believe that strong language ability in one of Canada’s two official languages is a major factor for successful integration and establishment in Canadian society.  
In this regard, Minister for Citizenship, Immigration and Multiculturalism Jason Kenney was quoted as follows:  “Extensive research has consistently shown that the ability to communicate effectively in either French or English is a key factor in the success of new citizens in Canada. .. We believe it is important that new citizens to be able to participate fully in our economy and our society.”

Therefore, CIC will now require all citizenship applicants between the ages of 18 and 54 years old to provide evidence of their language ability (equivalent to the Canadian Language Benchmark / Niveau de comp├ętence linguistique canadien 4 in speaking and listening) in either of the following ways:
·                     the results of a CIC-approved third-party test; or
·                     the completion of secondary or post-secondary education in English or French; or
·                     achieving the appropriate language level in certain government-funded language training programs.

As in the previous regulations,  citizenship applicants who are below 18 years old and older than 54 years old remain exempt from the language ability requirement.
  
Cracking Down on Citizenship and Residence Fraud

Last month, CIC announced that it is seriously investigating almost 11,000 cases of possible residence fraud committed by applicants for citizenship and permanent resident status extensions. 

Minister Kenney has been quoted as saying that: “We are applying the full strength of Canadian law to those who have obtained citizenship fraudulently… Canadian citizenship is not for sale. We are taking action to strip citizenship and permanent residence status from people who don’t play by the rules and who lie or cheat to become a Canadian citizen.”

In close coordination with the Canada Border Services Agency (CBSA), the Royal Canadian Mounted Police (RCMP), and Canadian offices abroad, CIC has initiated the process of revoking the Canadian citizenship of up to 3,100 citizens who obtained their citizenship by committing fraud.

On the other hand, almost 5,000 permanent residents who are suspected of having obtained or maintained their status in Canada  by committing fraud have been flagged for closer scrutiny should they attempt to re-enter Canada or apply for Canadian citizenship.  The fraud often involves the use of unscrupulous immigration representatives in providing fake evidence of their residence or establishment in Canada to comply with the residence requirements for maintaining permanent resident status or obtaining Canadian citizenship. 

The CIC website reported that criminal investigations conducted by RCMP and CBSA have found that “a family of five may pay upwards of $25,000 over four or more years to create the illusion of Canadian residence.” 

CIC has also flagged the files of another 2,500 individuals with other related concerns and whose future applications will be the subject of closer scrutiny and are counted among the 11,000 citizenship and residency fraud investigations.  

Substitute for Cancelled LCP Hotline

For those who have been wondering about the LCP hotline, a CIC official has confirmed with the province of Ontario that the dedicated hotline for live-in caregivers had been disconnected on 8 February 2011.  Vulnerable workers (including live-in caregivers) are instead encouraged to contact the Ontario Employment Standards Information Centre at 1-800-531-5551.  This call centre is deemed more effective as it has dedicated agents who could assist callers in 23 languages and dialects.      

(Please note that the above are for legal information purposes only and not intended to provide specific legal advice.  It is strongly advised that you consult with a legal professional to discuss your particular circumstances.)

The author is a Canadian immigration lawyer and may be reached at deanna@santoslaw.ca.  

Thursday, 27 September 2012

Proposed Changes to the Federal Skilled Worker Program

Filipiniana News – September 2012
RHYME & REASON

Citizenship and Immigration Canada (CIC) announced that as of 1 July 2012, it has temporarily stopped accepting applications under the Federal Skilled Worker Program (FSWP) category while awaiting changes to the program that are expected to take effect in early 2013.  In the interim, only those with qualifying job offers, as well as PhD students and graduates, are able to apply under the FSWP. 

On 17 August 2012, CIC released the details of the proposed regulatory changes to the FSWP which are based on the skills and qualifications that are perceived as “most likely to lead to success for skilled immigrants.”  The major changes relate to the factors of language, age, work experience and arranged employment as well as spousal language ability and Canadian experience.  The pass mark remains 67 points. 

Minimum Threshold and Increase in Points for Language

The proposed changes recognize language as the most important factor “in ensuring successful socio-economic integration.”  Therefore, it is proposed that the CIC Minister will set a minimum language threshold for FSW applicants.  The points for language will also increase to a maximum of 24 points for all abilities (i.e. reading, speaking, listening and writing) in the first language and a maximum of 4 points for the second language.  The proposed maximum total of 24 points for the first language is substantially higher than the maximum (16 points) under the current regulations.  The maximum points awarded for the second language on the other hand, has been reduced from 8 points to 4 points under the proposed changes. 

Favoring Younger Immigrants and Reduced Points for Work Experience

Under the proposed changes, the points for age will be increased to a maximum of 12 points for those between the ages of 18 to 35, with points diminishing after age 35 and becoming  0 upon reaching 47 years old.  However, being 47 or over does not disqualify a person from submitting an application for permanent residence under the FSWP.   At present, a maximum of 10 points are awarded to applicants who are between 21 and 49 years old. 

CIC proposes reducing the total number of points for work experience to 15 from the previous 21 points,  with maximum points being given for at least 6 years work experience (instead of the present 4 years). 

Credential Assessment and Revised Points for Education

The proposed changes require that an applicant’s credentials be evaluated by an accredited agency in Canada to ensure that the foreign credentials meet Canadian requirements, including those applying under regulated occupations.  If the applicant’s credentials do not meet the requirements for practicing that occupation in Canada, the applicant will not qualify to apply for permanent residence under the FSWP for that particular occupation.   

Arranged Employment through a Valid LMO;  No More AEOs

As a way to minimize fraud and non-genuine job offers, CIC is proposing that a valid employment offer be represented by a positive labour market opinion (LMO) and/or an indeterminate job offer (if LMO-exempt) instead of an arranged employment opinion (AEO).   This is also meant to streamline the process by avoiding the need for employers to apply for two types of opinion if the applicant also wishes to stay in Canada as a temporary foreign worker while a FSW permanent residence application is in process.

Adaptability Factors and Settlement Funds

Under the adaptability factor, one year work experience in Canada will be given the full 10 points while a valid arranged employment will be given 5 points.   The applicant and or the spouse’ previous study in Canada will be given 5 points while a spouse’ previous work experience in Canada and language ability will be granted 5 points.  

Those with arranged employment are currently exempt from providing proof of settlement funds (“show money”) whether or not they are working or have worked in Canada.  Under the proposed changes, only those who are working or have worked under a valid work authorization in Canada will be exempt from the required proof of settlement funds. 

Foreign Skilled Trades Class

The proposed changes also introduce a new category of permanent resident applicants, called the Foreign Skilled Trades Class (FSTC).   This class will include those with credentials in the following areas:  industrial, electrical and construction trades; maintenance and equipment operation trades; supervisors and technical occupations in natural resources, agriculture and related production; processing, manufacturing and utilities supervisors and central control operators;  chefs and cooks, bakers and butchers.

Applicants under the FSTC will be required to meet:  a) a qualifying job offer (or two) from a Canadian employer for at least one year or a Certificate of Qualification from a provincial or territorial Apprenticeship Authority;  b) official language test results that meet the threshold set by the Minister; c) 24 months of work experience in the same skilled trade in the last five years;  and d) possession of NOC-specified employment requirements except for the Canadian certification and licensing requirements. 

Canadian Experience Class

The Canadian work experience requirement would be reduced to one year (from the previous  2 years) in the past 3 years.  The CEC remains open only to applicants with NOC 0, A or B, i.e. managerial, supervisory, professional and skilled trades work experience. 

(Please note that the above are for legal information purposes only and not intended to provide specific legal advice.  It is strongly advised that you consult with a legal professional to discuss your particular circumstances.)

The author is a Canadian immigration lawyer and may be reached at deanna@santoslaw.ca.   

Monday, 27 August 2012

Faster Removal of Permanent Residents?

Filipiniana News – August 2012
RHYME & REASON
  
A recent controversial bill introduced in Parliament is called the “Faster Removal of Foreign Criminals Act”.   If one were to rely solely on the bill’s title, it seems that only non-Canadians and permanent residents will be affected by the proposed changes.  However, a closer review of the bill’s contents will reveal that even permanent residents are included in the definition of “foreign criminals”.   If anything, this bill reminds us that “permanent residence” in Canada is not so permanent after all. 

Canada’s immigration laws underwent a major overhaul when the Immigration and Refugee Protection Act (IRPA) was enacted in June 2002.  Nearly ten years hence, several misconceptions still abound regarding the requirements and guidelines for maintaining one’s permanent resident status.   

When permanent resident (PR) cards were created, many thought that as long as they possess valid PR cards, their status as permanent residents will be safe.  This is not necessarily true.  Conversely, the lack of a valid PR card will not necessarily negate one’s permanent resident status.   As a general rule, permanent residents are required to meet the residency obligation of 730 days within the last five-year period to maintain their PR status.

Under IRPA, the residency obligation may be satisfied in any of the following ways:
1.      physical presence in Canada;
2.      if outside Canada accompanying a Canadian citizen spouse or common-law partner or is a child accompanying a parent
3.      if outside Canada and employed full-time by a Canadian  business or in the public service of Canada or a province
4.      if an accompanying spouse, common-law partner or child of a permanent resident who is employed full-time by a Canadian business or is in the public service of Canada or a province.

Although the residency requirement has become less stringent than the former six-months-for-every-year rule, there are other areas where physical presence may still be important for permanent residents.   One of these areas is that of maintaining provincial health insurance coverage in Ontario which requires physical presence in Canada for at least 153 days (approximately five months) every year.

Still, there are some recurring situations where permanent residents learn too late that their “permanent resident” status in Canada is not so “permanent” after all.

For instance, those whose PR cards have expired, who do not satisfy the residency requirement and are outside of Canada, will have to apply for a travel document from the nearest Canadian embassy or visa office to be able to return to Canada.   For those who have failed to comply with the residency obligation, this raises a problem as not only will the request for a travel document be denied, but that the permanent resident status will be revoked.  This revocation of PR status can be appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board.   Aside from questions of law and possible denial of natural justice, the IAD also has jurisdiction to consider humanitarian and compassionate grounds in light of all the circumstances of the case.  However, the chances of succeeding on appeal will depend on the evidence presented and the presiding board member’s weighing of all factors involved.   

Another matter that could spell doom for one’s permanent resident status is that of misrepresentation.  If it is found out that there was any misrepresentation of a material fact made in one’s application for permanent resident status, this can be used as a ground to initiate inadmissibility proceedings and may eventually lead to removal from Canada.  Some common examples of misrepresentation involve falsified marital status or undisclosed criminal records. 

Unfortunately, even seemingly “minor” criminal offences may mean the end of one’s permanent resident status in Canada.  At present, IRPA’s definition of “serious criminality” which could render a permanent resident inadmissible to Canada includes conviction for crimes which carry a penalty of  “at least ten years OR for which a term of imprisonment of at least six months was imposed”.  Thus, even the most mindless criminal acts may lead to criminal inadmissibility if the crimes involved happen to be punishable by at least 10 years although the actual sentence imposed is much lighter.     

 If the “Faster Removal of Foreign Criminals Act “ is passed in its current form, permanent residents who are convicted of crimes in Canada for which “a term of imprisonment of at least six months” (currently “two years” under IRPA) is imposed, will lose their right to appeal their removal order with the IAD.  It is also proposed that those who are convicted or committed an act outside Canada which is punishable by a maximum sentence of at least 10 years in Canada, will also lose their right of appeal with the IAD. 

The above situations are meant to illustrate that permanent residence in Canada is not as permanent as some might think.  Clearly, the Canadian government may take steps to revoke one’s permanent residency whenever certain conditions are not met or based on relevant legal or public policy considerations. 

(Please note that the above information are for legal information purposes only and not intended to provide specific legal advice.  If you have related concerns, it is strongly advised that you consult with a legal professional to discuss your particular situation.)

The author is a Canadian immigration lawyer and may be reached at deanna@santoslaw.ca.   

Friday, 27 July 2012

Temporary Residents and the Deportation Process

Filipiniana News  -  July 2012
Rhyme and Reason

Amidst the ongoing changes to Canada’s immigration laws and regulations in the past few years, many individuals have been adversely affected to the point of losing their status due to misinformation or even carelessness. 

Those who may have lost their status are understandably fearful of getting deported anytime soon and thrown on the next flight back to their home country.  However, misconceptions about the removal process abound such that fears are raised even among  temporary residents although they may actually still have valid status in Canada.  For instance, there are those here as visitors, workers or students whose initial permits have expired but whose extension applications are still pending, who fear that they may just be picked up by the authorities and detained since they could not show any proof of legal status.   Such fears are misplaced if the temporary resident has submitted an application to renew their temporary resident status before the expiry of their current status in Canada and a decision on the application is not yet received.   Provided all legal requisites are met, the temporary resident who has a pending renewal application will have the benefit of “implied status” under the Immigration and Refugee Protection Act (IRPA) and its regulations.   The implied status ends on the day that a decision is received on the renewal application, granting or refusing the extension requested.   It is only when the renewal application is refused, will the applicant technically lose temporary legal status in Canada and may be well-advised to leave the country as soon as possible so as not to prejudice any future applications to return to Canada.

There is also the option of applying for a restoration of status within 90 days of having lost temporary resident status if there are reasonable legal bases for requesting the restoration (e.g. justifiable reason for inability to request an extension prior to expiry of previous status, compelling reason to extend visit, a positive labour market opinion based on an existing job offer or continuing studies, etc.).   If the 90 days have passed, the option of seeking a restoration will not anymore be available but there may still be other options, depending on the circumstances.  

A person who has lost legal temporary status in Canada need not simply live in perpetual fear of being “picked up” by enforcement officers and thrown on the next plane out of Canada.  If there are compelling reasons or factors involved, it will be best to consult a trustworthy immigration advisor to discuss possible options to legalize one’s status. 

For instance, if there are genuine risks to one’s life if returned to one’s home country, there are applications that can be made to seek protection from any such harm.  These remedies however, should never be abused by agreeing to unscrupulous advice such as concocting stories to support one’s application for permanent resident status in Canada.   These unethical actions are not only morally and legally wrong, but also prejudice the many other genuine stories of people trying to escape various forms of persecution in their home countries.  If a genuine refugee is refused simply because the adjudicator has heard too many similar concocted stories, then a travesty of justice has been perpetrated against those truly deserving of Canada’s protection.

There are also cases where other compelling humanitarian and compassionate considerations exist (other than risk to one’s life) which could be raised in support of one’s application to remain in Canada.  These include factors such as strong establishment in Canada, best interests of children affected and other types of undue, undeserved and disproportionate hardship that would result from a refusal.

It used to be that a marriage or common-law relationship with a Canadian or permanent resident can almost guarantee a stay of removal and eventual grant of permanent residence to a foreign spouse who may have already lost status.  However,  the proliferation of bad faith marriages or so-called marriages of convenience have put even genuine relationships at a great disadvantage by also being refused in some cases.  Recently, the IRPA regulation defining “bad faith marriages” was amended to include non-genuine relationships or those which were primarily entered into for immigration purposes.  The old regulation was less strict in that the marriage would have to be both non-genuine and entered into primarily for immigration purposes to be considered a bad faith marriage.  Now, even if the marriage is genuine, but if it was perceived by an immigration officer to have been entered into primarily for immigration purposes, the sponsorship application can be refused and the removal against the out-of-status spouse may proceed. 

Once a removal order is issued against a temporary resident, there are administrative and judicial remedies that can be taken to stay the removal process.  However, these procedures and their effectiveness would depend on the specific circumstances in each case, as well as the favorable (or unfavorable) perspectives of the decision-makers. 

Thus, the removal process does not simply mean that once a person loses status in Canada, he or she is immediately arrested by the authorities, detained and thrown on the next flight to the home country.  There are various criteria, legal processes and principles involved which could result in varying treatments and outcomes.     

It must be noted as well, that even permanent residents may become the subject of removal orders.  However, that is already beyond the scope of this article. 

As always, the above are meant for legal information purposes only.  To obtain legal advice about your specific legal situation, it is best to consult a trusted immigration counsel.

The author is an immigration lawyer in Canada and may be reached at deanna@santoslaw.ca

Wednesday, 27 June 2012

How to Avoid Losing Temporary Resident Status

Filipiniana News  -  June 2012
Rhyme and Reason

By Maria Deanna P. Santos
  
Despite the changes to the Live-in Caregiver Program (LCP) in the last few years that were meant to improve the situation of its participants, there are still  many caregivers who  fail to complete the program or end up losing their temporary resident status.  Upon further inquiry, it turned out that many of these caregivers were either terribly misinformed or had no knowledge of even the most basic requirements of the Immigration and Refugee Protection Act (IRPA) and its regulations in maintaining their temporary resident status in Canada.

Thus, I hope that the following review of the most basic requirements of  IRPA as they relate to participants of the LCP will help avoid further instances of caregivers inadvertently losing their temporary resident status.  
 
1.   The initial LCP work permit issued by an immigration officer to a caregiver upon arriving at the airport is an employer-specific work permit.  This means that the caregiver is only authorized to work for the specific employer named on the work permit.
2.  If, for any reason, the caregiver cannot anymore work for the employer named on the work permit, the caregiver cannot work for another employer right away and using the previous employer-specific work permit as basis.  This is a clear violation of IRPA and can render the caregiver inadmissible to Canada.
3.  If the caregiver leaves the employer named on the work permit, the caregiver will need to find another employer who will then apply for a labour market opinion (LMO) from Service Canada.  Once the LMO is granted, the employer will need to provide the prospective caregiver with a copy of the LMO so that the caregiver can apply for a new employer-specific work permit from CIC.
4.  The issuance of the LMO by Service Canada does not authorize the caregiver to start working for the new employer.  The caregiver will still have to wait for the new employer-specific work permit before starting to work for the named employer.   
5.   Whether or not the caregiver is changing employers, he or she must apply for a renewal of the work permit prior to the expiry date of the previous one to ensure that he or she will maintain their temporary resident status in Canada.  
6.   If the processing of the work permit renewal application is delayed and the previous work permit expires before a new one is issued, the caregiver will have implied status. 
7.   Implied status means that the caregiver can continue working under the terms and conditions of the previous work permit. 
8.   Implied status ends upon receipt of the decision of CIC granting or refusing the work permit renewal application.
9.  If the caregiver has left a previous employer but has not found a new employer prior to the expiry of his or previous work permit, the caregiver can apply for a bridging extension which can be issued for a maximum of two months. 
10.  When the LMO for the new employer is issued after the expiry of the previous work permit but before 90 days have passed, the caregiver will need to apply for a restoration of temporary resident status in addition to the work permit renewal application.  The restoration fee is $200 and the work permit renewal processing fee is $150 for a total CIC processing fee of $350.
11.  If the restoration and work permit renewal applications are submitted beyond 90 days from the expiry of the previous work permit, the application will be refused.
12.   For those who have completed the 24 months of full time live-in caregiving work within 4 years of arriving in Canada, the caregiver must submit an application for an open work permit along with the LCP permanent residence application.
13.  If the previous work permit expires before the open work permit is granted, the caregiver will have implied status as long as the LCP permanent residence and open work permit applications were submitted prior to the expiry of the previous work permit.  
14.  Implied status in this case allows the caregiver to continue working for the last employer named in the previous work permit.  It does not authorize the caregiver to work for any other employer. 
15.  It is only when the open work permit is issued will the caregiver be able to legally work in any occupation for any employer in Canada.
16.  It must be noted however, that the open work permit also has an expiry date.  If the LCP permanent residence application has not been granted by the time that the open work permit is about to expire, the caregiver will have to apply for a renewal of the open work permit prior to the expiry date of the last one.   Implied status will also apply if the last open work permit expires before a new one is issued as long as the renewal application was submitted prior to the expiry of the previous work permit.  
17.  It is thus very important to note the expiry date on the work permit as this will determine when the renewal or restoration application should be submitted.
18.   If the open work permit application is not included in the LCP permanent residence application and the previous LCP work permit has expired, the LCP permanent residence application will be refused because the requirement of maintaining temporary resident status has not been met. 
19.   The work permit only allows the caregiver to work legally in Canada.  If one wants to travel outside and return to Canada, the caregiver must first obtain a temporary resident visa (if coming from a visa requiring country). 
20.   Although immigration officers have some discretion to grant an exemption from inadmissibility or any violation of IRPA on humanitarian and compassionate (H&C) grounds, this may not be granted if the officer is not satisfied that there are sufficient H&C grounds to justify the exemption.

The above are just some of the most basic immigration regulations and guidelines which must be clearly understood by all LCP participants to avoid losing their temporary resident status while awaiting the decision on their permanent residence applications.   These are meant to provide legal information only and not specific legal advice.  If you or someone you know, have a case-specific issue that is not addressed by any of the above guidelines, it is strongly recommended that you consult a trusted immigration legal advisor as soon as possible.

The author is a Canadian  immigration lawyer and may be reached at deanna@santoslaw.ca.

Sunday, 27 May 2012

Dealing with Legal Advocates Effectively

Filipiniana News  -  May 2012
Rhyme and Reason

Please pardon the seemingly self-serving topic, but I thought that it may be worth further discussion in the interest of assisting those who may be in urgent need of a legal advocate but are very hesitant to approach one.  

For many of us, there would come a point in our lives when we, or a family member, will require the services of a lawyer, paralegal or legal consultant (collectively referred to as  “legal advocates”).   Justifiably or not, many are apprehensive about working with legal advocates. This article is meant to provide some guidance towards reducing if not eliminating such apprehensions. 

As in most everything else, achieving a good and satisfying relationship with a legal advocate involves a two-way process.   If you are thinking of consulting with or retaining a legal advocate’s services, here are a few tips that could hopefully make the experience a positive one. 

First of all, your choice of a legal advocate should not be driven solely by financial considerations.  That is, do not choose a legal advocate only because he or she charges the lowest fees.  Conversely, the fact that a legal advocate charges the highest rate does not necessarily translate into the best legal services.  As clients, we need to understand that legal advocates’ fees are based on a host of considerations.  These include, the legal advocate’s specialization, the complexity of legal issues involved and estimated amount of time it will take to do the work, the volume of cases or transactions already being handled, the location and cost of overhead expenses, the potential risks and amount of work involved, the client’s means and ability to pay, etc..  Depending on your particular situation, one way to determine whether the cost is reasonable is to verify the scope or range of services covered, the approximate cost of disbursements and the flexibility of payment terms. 

Although the cost is of course a significant factor to consider, one also needs to weigh other equally important factors such as communication lines, for instance.  Are you comfortable with the fact that you can only speak with the legal assistant or receptionist and would only see the lawyer (if at all) when signing or commissioning documents?   Does the legal advocate return calls within a reasonable time?  Are you able to convey all relevant details to the legal advocate handling your case, in a language with which you are fairly comfortable?

Another important factor is compatibility with your personal values.  Does the legal advice  involve ethical or moral issues that you feel uncomfortable about or disagree with?  You must always remember that a legal advocate can only provide legal advice but cannot force you to do anything against your will.  If the legal advice involves declaring untruths or intentionally misrepresenting facts, then you should be very wary.  The same is true for all other types of advice that legal advocates provide.  It is your life and legal situation that is at stake.  If you feel that the advice is against your moral values or beliefs, then this is one clear sign that the legal advocate is not the right one for you. 

It is also important to ensure that the legal advocate is a member in good standing with the relevant regulatory body.  This means, for example, membership with the Law Society of Upper Canada (LSUC) for a lawyer or paralegal in Ontario or with the Immigration Consultants of Canada Regulatory Council (ICCRC) for immigration consultants.   These regulatory bodies have mechanisms in place to allow wronged clients to file complaints against the legal advocate.  While the systems in place are not perfect, they are meant to protect the public against unscrupulous or unethical practices and unprofessional delivery of services. 

To ensure that your matter is attended to promptly, you have to provide all the required documentation and ensure that you have disclosed all pertinent information.  If you are unsure which information is relevant to your legal matter, never hesitate to ask.   It is always better to provide all relevant information earlier rather than disclose them at a much later stage when it could potentially involve more time and money to adjust the legal strategy or remedy being pursued.  If you choose to obtain the services of a lawyer, the principle of lawyer-client privilege is an added assurance that client information is treated with utmost confidentiality.

Most importantly, treat your legal advocate and their office staff as well as opposing parties  with honesty, civility and respect.  Although you are a client and are paying for the legal services provided, this does not give you the license to make unreasonable demands or to use their legal services to unjustifiably make life difficult for others.  The law is not meant to be an instrument for revenge or as a shield for wrongdoing.   Negative stereotypes about the law and lawyers may say otherwise.  It is about time that this bad reputation is changed.

However, it is not only up to the legal advocates themselves to effect this change.   We must also do our part in ensuring that unethical practices or any other type of wrongdoing is discouraged if not totally thwarted.   After all, upholding truth, equity and justice is  everyone’s responsibility.

The author is an immigration lawyer in the GTA  and may be reached at deanna@santoslaw.ca.


Friday, 27 April 2012

Immigration Reforms and Universal Values

Filipiniana News –  April  2012
RHYME & REASON

It appears that Citizenship and Immigration Minister Jason Kenney is truly living up to his reputation as an “energizer bunny” in that he just keeps on going with seemingly nonstop major changes to Canada’s immigration laws and regulations. 

After all the recent changes that I summarized in last month’s article, the CIC Minister recently announced yet another major change.  Simultaneous with the government’s annual budget announcement, Minister Kenney announced the plan to return the applications and refund the processing fees paid by most skilled worker applicants submitted before 27 February 2008.  This is allegedly meant to eliminate the backlog and is estimated to affect about 300,000 applicants worldwide, while facilitating the implementation of a “fast and flexible” and “just in time” immigration.  CIC states that the affected applicants are welcome to reapply under the new rules, but no doubt many of them will not anymore qualify or will be too burnt to even trust that CIC is still capable of treating their applications in a fair and expeditious manner. 

Understandably, this recent news came as a shock to many, especially for those applicants affected and their families.  Many of them have patiently waited in the queue for at least four years (and likely much more) in the hope that their permanent residence applications will eventually be given positive consideration. Most of these applicants (or their immigration lawyers and consultants) were unlikely to have expected something like this to happen - for many, it is almost like playing a game where the rules were suddenly changed midway, catching the players totally unaware and leaving them upset, confused and even angry. .  

Many are questioning the implications of this development on the basic principles of fairness and on preserving the integrity of the immigration system.  Whether CIC will backtrack and heed the critics, is yet to be seen.  The CIC Minister has time and again announced that he is determined to reform the country’s immigration system and introduce a new one that will be responsive to the economic needs of Canada.  Sadly, I think that this is partly where the problem lies – in putting too much emphasis on the economic dimension, often at the expense of all other relevant and equally important dimensions. 

These neglected dimensions include the preservation of fundamental Canadian values of moral responsibility, family unity, human rights, among others.   Although these values are not directly and clearly measured in economic terms, they should be given equal weight in any decision-making process involving matters as vital as immigration law and policy.

One cannot argue with the need to match immigrant skills with jobs that will utilize and maximize those skills.  However, the proposed measure of allowing the  “pre-screening” of  applicants’ qualifications by the prospective employers and “choosing the best and the brightest” who can immediately contribute to the Canadian economy  sounds like an oversimplification or a “quick fix” to a problem that took several years to develop.    

The CIC Minister is often quoted as saying “it’s just common sense,” referring to his economic-based solutions to the current systemic problems surrounding Canada’s immigration programs.  

Although the economic issues are admittedly important in ensuring the well-being of immigrants and their families, they should not be the sole basis of any reform initiative.  The human dimension of immigration tends to get overlooked when the ultimate objective is measured solely in quantitative standards. 

Some examples of this human dimension include the immigration objectives of family reunification, of providing refuge to those fleeing persecution in their home countries, and upholding international standards of human rights, peace and development. 

If Canada’s immigration objectives are single-mindedly geared towards recruiting the “best and the brightest” from other nations, how different is that from the colonial and neo-colonial extraction of the natural resources of poor and less-developed countries?   As a responsible member of the international community, and even as a self-proclaimed leader in upholding internationally accepted values, Canada should think twice about perpetuating exploitative practices that will only further the already grossly unequal distribution of wealth among nations and their peoples.

It also behooves Canada to treat everyone fairly, including those who seek to enter and live permanently in this country.  Instead of imposing drastic measures such as returning their applications after patiently abiding by the rules, Canada should instead consider alternative but fair measures. .

For one, revamping the rules may well be an important part of the solution, but this should be complemented with continuing efforts to provide the necessary supports that are needed by the immigrants to become fully integrated in their new home. Even the “best and the brightest” will undoubtedly  benefit from these support mechanisms to help familiarize themselves with their new environment and which will eventually allow them to thrive.  Settlement programs should therefore be strengthened and revitalized as they are an important and crucial component to achieving a balanced, healthy, meaningful and successful immigration program.  

Hopefully, our energetic and well-meaning CIC Minister will continue to heed reasonable and equally well-meaning voices in the ongoing quest for solutions to the longstanding problems in Canada’s immigration system.  Understandably, diametrically opposed political ideologies can affect views as to where immigration reforms should be headed.  However, these should not be allowed to serve as a deterrent towards achieving the universal goals of justice, fairness and humane treatment for all, whether in immigration or in other areas of public policy.      

The author is an immigration lawyer in the GTA  and may be reached at deanna@santoslaw.ca. 

Tuesday, 27 March 2012

Recent Changes to Canada’s Immigration Programs

Filipiniana News – March  2012
RHYME & REASON

Just this month, Citizenship and Immigration Canada (CIC) has issued a number of press releases introducing more significant changes to the Immigration and Refugee Protection Act and its implementing regulations.

Changes to Address Spousal Sponsorship Fraud

As a way of addressing the growing problem of spousal sponsorship fraud and marriages of convenience, CIC has imposed a five-year bar for sponsored spouses and common-law partners from submitting spousal sponsorship applications in favor of subsequent spouses or partners.  The five-year period is counted from the day that the sponsored person became a permanent resident.  Thus, even if the marriage or common-law relationship has broken down in less than five years from obtaining permanent residence and the sponsored person has entered into a genuine marriage, common-law or conjugal partnership with another, the former cannot sponsor the new spouse or partner until after the five-year period has elapsed.  This change took effect on 2 March 2012. 

A few days later, CIC published another proposed significant change to the program – the grant of conditional permanent residence to sponsored spouses and partners.  The conditional permanent residence will be for a period of two years from the time that the sponsored person obtains permanent residence in Canada.

However, the conditional permanent residence will not apply to all sponsored spouses and partners but only to those who have been married or in common-law relationships with their sponsors for less than two years and who have no common children at the time that the spousal sponsorship application was submitted. 

Again, this change is meant to discourage marriages or relationships of convenience that are entered into simply for purposes of obtaining permanent resident status in Canada.   This change was not without its critics however, as it was seen as potentially causing serious prejudice to sponsored persons who are affected by various forms of domestic abuse.  To address this concern, the proposed change has granted an exemption for the following situations: a) death of the sponsoring spouse or partner; and b) situations where there is evidence of abuse or neglect of the sponsored persons and their dependents suffered in the hands of the sponsoring spouse or partner. 

Changes Towards a “Fast and Flexible Immigration System”

The CIC Minister had also announced upcoming major changes to permanent residence applications under the federal skilled worker category.   Aside from putting further emphasis on admitting those with skills that are in “high demand” in Canada’s labour market, CIC plans to give Canadian employers a more active role in determining which applicants deserve to be admitted as permanent residents under this category.  

There are also indications that the current points system will likely be given a major overhaul in that language ability will not only be given greater weight but that different competency levels will be required depending on the type of the applicant’s occupation. 

The CIC Minister has expressed a keen interest in attracting more investors and entrepreneurs who will be the “next Steve Jobs” or “the next Bill Gates” and who will help boost the Canadian economy by generating more jobs particularly “in the areas like technology, energy and environmental innovations.” 

All of these changes are meant to fulfil the goal of creating a “fast and flexible immigration system” while trying to reduce the tremendous backlogs at visa offices worldwide.

Changes to the Refugee Protection Program

The present government has also recently tabled Bill C-31 or “Protecting Canada’s Immigration System Act” which is actually a revival of a previous bill meant to overhaul Canada’s refugee protection system. 

In a nutshell, Bill C-31 seeks to fast track refugee applications from designated countries of origin which will be determined solely by the CIC Minister.  There will also be very strict and speedy timelines within which refugee claims will be heard and there will be restrictions on the right to appeal for those coming from designated countries.  

In an attempt to discourage human smuggling, the Bill also proposes to detain refugee claimants for at least a year,  restrict refugees and protected persons from applying for permanent residence on humanitarian and compassionate grounds and grant them conditional permanent resident status in Canada for a period of five years.  

Although the intention of discouraging false refugee claims is laudable, the overall effect of the Bill in its present form is unfortunately perceived as an attack on real refugees.   Advocates are therefore seeking reforms that will not cause serious prejudice to genuine refugees and persons seeking protection from various forms of persecution in their homeland, nor violate Canada’s avowed commitment to human rights as embodied in the Charter of Rights and other relevant legislation.  

The present CIC Minister’s serious and diligent efforts to implement changes meant to address the problems in Canada’s immigration system are greatly appreciated.  However, it is hoped that these changes will not only be based on economic considerations but will continue to reflect fairness, respect and compassion, in accordance with Canada’s proud humanitarian tradition. 

The author is an immigration lawyer in the GTA  and may be reached at deanna@santoslaw.ca. 

Monday, 27 February 2012

LCP and “Nanny Poaching”

Filipiniana News – February 2012
RHYME & REASON

A few days ago, the Toronto Star published an article about the allegedly increasing incidence of “nanny poaching”.  That is, due to the alleged shortage of live-in caregivers, prospective employers resort to “stealing” other people’s caregivers by enticing them with higher salaries and more attractive benefits.

It is a well known fact that in the business world, headhunters and recruiters do it all the time: enticing excellent but employed candidates with better salaries and other benefits to move to other employers.  This practice is so widespread that it will hardly prove to be newsworthy. 

Now when this is happening to live-in caregivers, why is it suddenly considered newsworthy and a matter of great ‘concern’?  Are live-in caregivers less deserving of competitive wages and benefits than other workers?  Are they considered mere objects ‘owned’ by their employers that they do not have a right to choose who to work for and under what conditions?

The premise behind the so-called ‘problem’ illustrates a fundamental flaw behind the Live-in Caregiver Program (LCP).  As this news article illustrates, the LCP perpetrates a modern-day form of slavery or involuntary servitude.  Aside from extracting highly-educated people from poorer nations to serve families in a richer nation as Canada, they are required to work as full time live-in caregivers for at least two years before being deemed to qualify for permanent residence for themselves and their family members (spouses and dependent children). 

The requirement to “live-in” with the employer and to obtain an employer-specific work permit instead of being given the option to work as a “live-out” or for any other employer without need to go through administrative hoops, only exacerbates the power imbalance that exists between the caregiver and the employer.  I find it deeply disturbing therefore, to hear allegations that caregivers now have more power over their employers simply because changes were made to the LCP which were meant to protect the vulnerable caregivers from widespread abuse and exploitation in the first place.

Although I do not necessarily agree with all the reforms introduced by the present government to Canada’s immigration system, the changes to the LCP, are at least steps in the right direction.  The objective of putting measures in place to prevent recruiters from exploiting the caregivers’ desperation to work and migrate to Canada, and employers from committing egregious violations of the caregivers’ basic rights, can only be commended and encouraged. 

Although I am one for achieving a healthy balance towards protecting everyone’s rights, including employers and legitimate caregiver agencies, the latter should also keep in mind the systemic barriers and disadvantages that live-in caregivers have historically suffered and which sadly persist to this day.  Unlike employers and employment agencies, the caregivers rarely have the economic, social and political influence that could significantly make things easier to advance one’s interests.   It is only recently that caregivers’ issues have caught the public attention after many years of persistent calls and lobbying by tireless community advocates. 

For those who were not able to read the article written by Toronto Star reporter Nicholas Keung, some excerpts follow:
“The shortage of live-in caregivers has been exacerbated since mid-December when the federal government issued 14,000 open work permits to nannies who met the employment hours to apply for permanent residency.
“The open work permits allow nannies to work outside of an employer’s home and in the field they choose, and many have since given their two-weeks notice and left their jobs.
“The flood of open work permits has evaporated the local nanny market right across Canada. Nanny poaching is becoming rampant. When nannies arrive from overseas, they are more likely to leave because they know they have five families waiting,” said Manuela Gruber Hersch of the Association of Caregiver and Nanny Agencies Canada.
“It is now a nanny’s market. It will become worse before it will get better.”
“Live-out caregivers are not an option, not only because their pay, in the range of $14 and $18 an hour, is much higher than the minimum wage of $10.56 for their live-in counterparts, their hours are also less flexible, especially when care is needed overnight.
“The industry group’s Gruber Hersch said the shortage has driven up wages and families who live in sprawling suburban neighbourhoods and have multiple children are left behind as nannies can afford to pick better working conditions.” 

The above statements not only reveal current unacceptable practices but also a clear bias towards maintaining the unjust status quo for the benefit of the economically privileged.   For instance, it reveals that “flexible”, “overnight care” are still being paid minimum wage (if at all) when the law clearly requires much more in terms of overtime pay.  

Second, being a caregiver in “sprawling suburban neighborhoods” with “multiple children” would clearly entail a lot more work than being a caregiver for a single child in a more modest home.  However, the law does not at all require a corresponding increase in wages for caregivers of multiple children and for those who are also made to perform various chores in a palatial home.

Third, why is being able to “afford to pick better working conditions” such a bad thing?  Wouldn’t any worker want the same freedom or opportunity?   Wouldn’t we want the same for ourselves?

A longstanding caregiver advocate, Pura Velasco, was quoted in the same article as saying: “If employers want to keep their nannies, they must treat them well.” 

That would be ideal.  Unfortunately, even such a simple task can be a tall order within the framework of a deeply flawed program such as the LCP.

The author is an immigration lawyer in the GTA  and may be reached at deanna@santoslaw.ca.