Monday, 30 December 2013

A Summary of Immigration Changes in 2013

Filipiniana News  -  December 2013
RHYME & REASON

The year being almost over, I am providing below a summary of the changes introduced by Citizenship and Immigration Canada  (CIC) this year, and which are especially relevant for Filipinos in Canada and their families.  

Special Measures for Victims of Typhoon Haiyan / Yolanda

The most recent of these changes are the special measures introduced for those affected by typhoon Haiyan/Yolanda in the Philippines.  These include the priority processing of applications of Filipinos who are significantly and personally affected by this natural disaster, as well as a “compassionate and flexible” assessment of applications to extend the stay of Filipinos who are in Canada as temporary residents.   While no specific timeline has been provided by CIC at this time, these special measures are expected to cease at some point.  So if you or your families wish to invoke priority processing, the request or application must be sent to CIC at the earliest opportunity and before this policy ends. 

Although these special measures are very much welcome and greatly appreciated, it appears that many Filipinos who availed of, or wish to avail of these measures are still facing serious issues in fulfilling CIC  requirements.  The problems include the lack of adequate communication and transportation facilities for their affected families in the Philippines and the added financial burden entailed in processing various documentary requirements.  Hopefully, the special measures will also take these practical difficulties into serious consideration in dealing with the applications so that the main objective of reuniting distressed families can be realized as soon as possible. 

New and Revised Permanent Residence Application Categories

In January 2013, the Federal Skilled Trades program took into effect which was meant for those with adequate experience and specialized skills in identified trades that are most in demand in the present Canadian job market.  The list of occupations which may qualify under this permanent residence category are jobs that fall under NOC skill level B or those requiring at least a postsecondary education and/or apprenticeship training.  Contrary to what people initially thought, this program would still not provide a route for permanent residence for those who came to Canada under the so-called “Pilot project for low-skilled occupations” since the latter perform jobs which  fall under the NOC C and D categories.    

Also in January 2013, the work requirement to qualify under the Canadian Experience Class (CEC) was reduced from two years to one year.  Hence, this category attracted an even greater number of applications from those who are already working in Canada in NOC O,  A or B occupations.  However, in November 2013, major changes to the CEC were further introduced such as imposing an overall quota of 12,000 and sub-quotas of 200 for NOC B occupations.  CIC also stopped accepting CEC applications from those in certain occupations where too many applications have been received, namely, cooks, food service supervisors, administrative officers and assistants, accounting technicians and bookkeepers and retail sales supervisors. 

In April 2013, the Start-up Visa program took effect which is another option for permanent residence for those with a promising business idea that is supported by a Canadian angel investor group, venture capital fund or business incubator program.  Judging by the nature of the designated investors and pronouncements made by CIC officials, the program appears to be geared towards the high-technology sector which is perceived to bring higher returns and create more jobs for the Canadian economy.

In May 2013, major changes to the Federal Skilled Worker class, including a modified points system and a reduced list of eligible occupations, took into effect.   The changes reflected Canada's emphasis on higher-skilled occupations, superior English or French language skills and younger immigrants.  There were also quotas imposed on applications to be accepted for the eligible occupations such that the more popular occupations (i.e. engineering managers, civil and mechanical engineers, financial and investment analysts, computer engineers and programmers, physiotherapists) were filled not very long after these changes took effect.

Temporary Residence Applications and Stricter Inadmissibility Provisions

For temporary residence applications, one of the major changes implemented this year occurred in July 2013 when Service Canada imposed a $275 processing fee per occupation for all labour market opinion (LMO) applications.  This fee must be paid for by the employer and not by the prospective employee.  Other changes introduced dealt with stricter English and French language requirements, as well as additional advertising and recruitment requirements  

In June 2013, the controversial bill entitled “Faster Removal of Foreign Criminals” entered into force after several months of discussions and debate.  Some of the harshest provisions of this new law include the removal of the rights of appeal for permanent residents who are convicted for a crime and sentenced to six months or more (at least two years previously), including conditional sentence served in the community.  Moreover, foreign nationals who are deemed to be inadmissible for the most serious grounds of security, human or international rights violations, or organized criminality no longer have access to humanitarian and compassionate consideration.

The above are changes which entered into force this year.  These do not include those which were also introduced this year but which are still subject to review, consultations and/or the legislative approval process.   In fact, there are several more changes which have already been introduced and are expected to take effect in January 2014 and even those expected to take effect in 2015 (such as the Expression of  Interest framework of admitting permanent residents now hotly debated in the House of Commons and elsewhere). 

In other words, immigration law remains to be a highly volatile, sometimes confusing and ever-changing area of law and policy where challenges, pitfalls and unending issues abound.   We will be happy to keep readers posted on these changes in the coming year.   So please stay tuned.

Merry Christmas and a Blessed New Year to all!

The author is a Filipino-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.   

Saturday, 30 November 2013

Urgent Call for Donations and Immigration Updates

Filipiniana News  -  November 2013
RHYME & REASON

As we all know by now, super typhoon Haiyan hit the central region of the Philippines on 8 November 2013.  Although the full extent of devastation is still unraveling by the day, it is estimated that up to 10,000 people have perished and millions of families lost their homes and were severely affected by this tragedy.  The various news footages of the aftermath showing the unbelievable damage caused by this natural calamity (although arguably worsened by man-made actions) are truly heartbreaking.   It does not require any expertise to conclude that it would take a very long time and a whole lot of financial resources to help the victims and their families recover and rebuild their lives. 

Thankfully, the international community has quickly stepped up in providing emergency relief to the worst hit areas.  The Canadian government for its part, has not only extended an initial support of up to $5 million but also pledged to match every dollar donated by Canadians to registered charities until 9 December 2013. 

If donations are made to UNICEF Canada, the impact of these donations may even be tripled as corporate sponsors also pledged to match every dollar donated to UNICEF. 

Our Canadian dollars will go a long way in the Philippines.  Even a seemingly modest $5 dollar donation can feed a family for up to a week or provide clean drinking water for up to a month. 

So please do not delay and send in your donations NOW!  

On 13 November 2013, Citizenship and Immigration Canada (CIC) announced the following special measures for those affected by typhoon Haiyan in the Philippines:  a)  Upon request, CIC will prioritize processing of applications made by Filipinos who are “significantly and personally” affected by this natural disaster;  b) Applications to extend the stay of Filipinos who are in Canada as temporary residents will be “assessed in a compassionate and flexible manner”; and c) Applications for travel documents by affected Canadians will be expedited by the Canadian embassy in Manila.   

CIC also set up a dedicated crisis line which may be reached through the CIC call centre 1-888-242-2100 or by emailing situation-philippines@cic.gc.ca.

Meanwhile, on the same day that typhoon Haiyan struck the Philippines, CIC made a surprise announcement regarding changes to the Canadian Experience Class (CEC).  That is, effective 9 November 2013, CIC will only accept up to 12,000 CEC applications a year and will impose a sub-cap of 200 applications per NOC B occupation (consisting mainly of administrative, technical and skilled trades occupations).     

And here’s the shocker:  due to alleged overrepresentation of applications in these occupations, CIC will stop accepting CEC applications for those whose work experience is in one of the following NOC B occupations: 
  • cooks (NOC 6322)
  • food service supervisors (NOC 6311)
  • administrative officers (NOC 1221)
  • administrative assistants (NOC 1241)
  • accounting technicians and bookkeepers (NOC 1311) and
  • retail sales supervisors (NOC 6211)

Sans notice or public consultation, CIC unilaterally decided that authorized work experience in these occupations will not anymore qualify for permanent residence under the CEC simply because there are already too many applications of this kind.    

All CEC applications which were received by CIC before 9 November 2013 will not be affected by these changes and would still be processed to completion. 

The same language thresholds of Canadian Language Benchmark (CLB) 7 for NOC O and A occupations (mainly managerial, supervisory and professional) and CLB 5 for NOC B occupations will remain.  However, CIC will screen the language qualifications at the outset and will return the entire application package, along with the processing fee, if the minimum threshold is not met. 

CIC calls these changes “improvements” and “client-friendly” but critics strongly disagree.  The absolute lack of due process, i.e. public consultation on the implications of these changes or any notice that these are even being considered, is totally disappointing for many.   This is  particularly disconcerting for those who may have already been preparing their CEC applications in one of the now ineligible occupations, but are suddenly barred from doing so.  If their current or prospective employers are unwilling or not qualified to provide a formal job offer which would require obtaining a labour market opinion, then they would not qualify for permanent residence under the Federal Skilled Worker or Skilled Trades classes either.  These changes may lead to enormous inconvenience, if not serious hardship, to many prospective immigrants who may have mapped out their lives and their family’s future based on the legitimate expectation that they will qualify for permanent residence under the CEC. 

If the consequent hardship will reach to the level of being characterized as “undue, undeserved or disproportionate,” they may possibly apply for permanent residence on humanitarian and compassionate (H&C) grounds.  However, an H&C application is very discretionary hence the outcome is highly unpredictable.   This is very much unlike a CEC application which does not leave much room for discretion and is based on clear, verifiable standards. 

In these precarious times, more uncertainty is the last thing people need.

This article is provided for information purposes only and not meant to be taken as legal advice. 

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

Wednesday, 30 October 2013

Family Separation in the Immigration Context

Filipiniana News  -  October 2013
RHYME & REASON

Amidst the public warnings and stricter government scrutiny of this class of immigration  applications, cases of spousal sponsorship fraud still seem to abound.  I have spoken with a number of Canadian sponsors who, after learning that their foreign spouses only married them for purposes of gaining immigration status in Canada, wanted to know how they can have their sponsored spouses deported.  At this point, the sponsored spouses have already been granted permanent residence and the sponsors cannot simply revoke the three-year undertaking to support that they submitted with the sponsorship application.  As much as they would want these alleged fraudsters deported immediately, they are disappointed to learn that the legal processes which need to be undertaken before the sponsored spouse can be deported from Canada can take a long time. 

Meanwhile, there are couples in genuine, committed and loving relationships who are forced to endure prolonged family separation due to the immigration officers’ overzealous attempts at disputing the genuineness of marital/common law/conjugal relationships.  For instance, in highly-intimidating immigration interviews, visa officers rarely consider the fact that “failure” in such interviews can often be attributed to language barriers, nervousness or even cultural differences or misunderstandings.  

To avoid these unfortunate situations, it is very important first and foremost, that the prospective sponsor fully understands the implications of a spousal sponsorship undertaking aside from being  certain of the sponsored spouse’s intentions.  Unfortunately, there is no foolproof way to determine the future of any relationship and that a short-term relationship does not necessarily mean that it was not genuinely entered into at the outset.  Hence, the sponsor must be fully aware of the potential consequences if the relationship turns out to be fraudulent and/or breaks down unexpectedly within the three-year period of the sponsorship undertaking. 

Once the sponsor fully understands the nature and implications of the undertaking, the sponsorship application must not only be thorough and comprehensive, but also presented in such a way as to avoid any doubt or confusion on the part of the reviewing officer.  CIC, on the other hand, will do well to conduct further training of visa officers to facilitate a better understanding of cultural differences and personality types that will avoid a one-size-fits-all standard for determining the genuineness of married, common-law or conjugal relationships.

Separation of Live-in Caregiver Applicants and their Families


Another type of family separation which has been sadly and pervasively affecting many prospective permanent residents involve live-in caregivers and their families.  Participants of the Live-in Caregiver Program (LCP) initially enter Canada on work permits and are not allowed to bring their families at this time.  It is only after having satisfied the requirements of the LCP  (two years of full time live-in caregiving work within four years of arrival) would they qualify to apply for permanent residence for themselves and their families, which could easily take several more years to be processed.

In this type of permanent residence application, the caregiver is applying concurrently with her family members and not “sponsoring” them.  As such, they are all required to pass the medical and security clearance requirements.  Although changes to the LCP regulations removed the requirement of a second medical examination for the principal applicant caregiver, the accompanying family members would still need to undergo the medical and security checks at the permanent residence application stage.   Even if the family members are declared to be “non-accompanying dependents,” they are still required to undergo medical and security checks.  If one family member is found to be inadmissible, this would render everyone, including the principal applicant caregiver, inadmissible to Canada. 

There are all sorts of complicated scenarios that may arise from this requirement.   First and most prevalent of all, a married caregiver who has been away from her family for many years while working as an overseas worker, often ends up with a broken home – i.e. a philandering spouse and/or alienated children who refuse to finish school or become addicted to vices.   When it is time to process the family’s permanent residence applications, these family members could either refuse to undergo the required medical examinations, provide the necessary police clearances or worse, fail them for various unfortunate reasons.   For caregivers who have become estranged from their husbands, they would also need to obtain a legal separation, annulment or divorce if they want them removed from their permanent residence applications.  As these further legal processes not only take time but also drain the live-in caregiver’s extremely limited financial resources, many find themselves trapped in a situation where their permanent residence applications are long delayed or worse, denied,  for the simple reason that they and their dependents are unable to meet the additional requirements within a prescribed period of time.  

The conflict of law issues involved (e.g. the differences in Philippine and Canadian and family laws such as the lack of divorce and prohibition against collusion in annulment cases in the Philippines) could result in further complications not only in the caregivers’ permanent residence applications but also in the legal status of their marriage and family lives.  While obtaining a divorce in Canada or entering into a separation agreement with spouses may be a quick solution for some in having their permanent residence applications finalized, it is also important to be fully aware of the implications of such remedies, which could haunt the spouses even long after the permanent residence application had been granted or denied.  

The above are provided for information purposes only and not meant to be taken as legal advice.  If you have related concerns, it is highly recommended that you consult with an immigration legal professional to discuss your particular circumstances. 

***
On a personal note, I would like to send happy birthday wishes to my dearest niece Francesca (October 14) and to her mom Cora (October 31).   Take care and God bless!

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


Monday, 30 September 2013

Parent/Grandparent Sponsorships and Super Visas

Filipiniana News – September 2013

Due to the frequent changes in Canada’s immigration laws and regulations, it is not surprising that many people get confused with the various legal changes and their implications.  One common area of confusion relates to the immigration applications of parents and grandparents of Canadian citizens or permanent residents.  With the creation of the super visa, prospective sponsors of parents and grandparents tend to think that this involves the same requirements and will automatically mean eventual permanent residence for their sponsored family member.

It must be noted that the super visa is a temporary resident visa which could be issued for up to a period of 10 years and may allow the visa holder to stay in Canada as a visitor for up to two years at a time.   This is in contrast to the regular temporary resident visas (TRV) for visitors which may be valid only up to the expiry date of one’s passport and would allow a visitor stay in Canada for only up to six months at a time.

Both the super visa and regular TRV holders are allowed to apply for an extension of their visitor record from within Canada which must be submitted prior to the expiry of the two-year (for super visa holders) or six-month (for regular TRV holders) validity of their visit.  If their authorized stay expires and there is still no decision on the visitor extension application, the visitor can stay legally in Canada on implied status.  Their valid authorized stay will end upon receipt of the decision on the extension application (if refused) or on the new expiry date of the visitor record (if the extension application is granted).  

However, the super visa is still just a temporary resident visa that will allow the parent or grandparent to reside in Canada as a visitor.  It does not authorize the super visa holder to work in Canada nor does it grant eligibility for public healthcare insurance coverage in any of Canada’s provinces.   In fact, one of the more costly requirements of the super visa is that of providing at least a one year private medical insurance coverage for the visiting parent or grandparent.  There is also a requirement for the child or grandchild in Canada to meet the minimum income threshold (Low-income cut-off or LICO) based on the actual number of dependents.  Hence the confusion that the super visa application is also a sponsorship application.  It is not.  

The term “sponsorship” strictly applies to applications for permanent residence in Canada which is accompanied by an undertaking from a Canadian citizen or permanent resident sponsor to be financially responsible for the basic needs of their sponsored family member.   In the case of sponsored parents and grandparents, the required period of sponsorship undertaking is 10 years.   However, this will be increased to 20 years when the parent/grandparent (PGP) sponsorship category is reopened in January 2014.

Earlier this year, CIC announced the resumption of the PGP sponsorship category on 2 January 2014 but with a number of significant changes such as: 
  • An increase of 30% to the minimum necessary income to become eligible to sponsor parents and grandparents.  Please note that even if one of the parents is not being sponsored, he/she will be included in the computation of the number of dependents for purposes of determining the minimum income requirement.
  • The minimum necessary income must be met for the three consecutive tax years prior to submitting the sponsorship application instead of just for the previous year as in the past.
  • Only documents issued by the Canada Revenue Agency will be accepted as proof of the sponsor’s income.  Thus, if one’s income is under-declared for income tax purposes, this could prejudice one’s right to sponsor parents and./or grandparents under the new regulations. 
  • As stated, the period of sponsorship undertaking will be extended from 10 years to 20 years to reduce the chance of the sponsored parent or grandparent becoming a burden on Canada’s social welfare system.
  • CIC will also implement a cap of 5,000 for new PGP sponsorship applications in 2014. 
  • The age of dependents will be reduced from 22 years old to 18 years old.  Dependency based on continuous studies after the age limit will be removed while dependency based on a mental or physical disability will remain.  This amendment will also apply to all other classes of permanent residence applications and not just to PGP sponsorship applications where there are dependent children involved.
These changes are very significant and could potentially disqualify many prospective sponsors of parents and grandparents.  The increased income requirement for the previous three years could prove quite onerous for many, especially those with several existing dependents.

For instance, a sponsor who is single and childless and wishes to sponsor both parents will need an annual minimum income of $46,354 for each of the last three years.  On the other hand, a married sponsor with three dependent children in Canada who wishes to sponsor parents will need to meet the minimum necessary income for 7 persons or $80,152 based on the 2013 low-income cut-off (LICO) figures plus 30%.  The LICO figures are changed annually and are expected to increase further in 2014.  

The recently publicized results of the National Household Survey indicate that the current average Canadian income is $38,700.  Thus, a Canadian earning the average income will be disqualified from sponsoring parents or grandparents under the new regulations.  This means that average-earning Canadians will be deprived of benefiting from the important immigration objective of family reunification. 

Although the super visa option remains a less onerous alternative (due to the slightly less stringent income requirements), the high cost of medical insurance is still a big hindrance for many.  Thus, the bigger issue seems to lie in the resulting discrimination based on age and financial status, among other serious problems arising from these changes. 

The above are for legal information purposes only and not intended to provide specific legal advice.  It is best that you consult with an immigration legal professional to discuss your particular circumstances

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

Friday, 30 August 2013

Back to Basics: Reminders for LCP Workers

Filipiniana News  -  August 2013
Rhyme and Reason

Despite a number of changes to the Live-in Caregiver Program (LCP) in recent 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.  This is partly due to the fact that many of these caregivers are either terribly misinformed or have no knowledge of even the most basic requirements of the Immigration and Refugee Protection Act (IRPA) and its regulations that are relevant to maintaining their legal status in Canada.

Hopefully, the following review of the most basic provisions of Canada’s immigration law and regulations as they relate to participants of the LCP will help avoid further instances of caregivers inadvertently losing their temporary resident status while in the program and/or awaiting the grant of their permanent resident status:
  • 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.
  • 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.
  • If the caregiver stops working for the employer named on the work permit, the caregiver will need to find another employer who will first need to apply for a labour market opinion (LMO) from Service Canada.  Once the LMO is granted, the employer should 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.
  • The issuance of the LMO by Service Canada does not authorize the caregiver to start working for the new employer.  The caregiver would still have to wait for the new employer-specific work permit before starting to work for the new employer.   
  • 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.  
  • 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. 
  • Implied status means that the caregiver can continue working under the terms and conditions of the previous work permit. 
  • Implied status ends upon receipt of the decision of CIC granting or refusing the work permit renewal application.
  • If the caregiver has left a previous employer but has not found a new employer prior to the expiry of the previous work permit, the caregiver can apply for a bridging extension which can be issued for a maximum of two months. 
  • 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.
  • 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.
  • 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.
  • 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.  
  • 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. 
  • 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.
  • 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.  
  • 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.
  • 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. 
  • The work permit is the authorization for the caregiver to work legally in Canada.  It does not allow re-entry to Canada.  Thus, if one wants to travel outside and return to Canada, the caregiver must first obtain a temporary resident visa (if coming from a non visa exempt country such as the Philippines). 
  • 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 will not likely be granted if the officer is not satisfied that there are sufficient H&C grounds to justify the exemption.
The above summary of basic immigration regulations as they apply to LCP participants, is being provided for legal information purposes only and is not meant for specific legal advice.  If you or someone you know, have further issues that may not be fully addressed by any of the above basic guidelines, it is strongly recommended that you consult a trusted immigration legal counsel as soon as possible.

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

Tuesday, 30 July 2013

Cabinet Shuffle and the Ongoing Saga of LCP Woes

Filipiniana column - JULY 2013
RHYME & REASON

In the morning of 15 July 2013, Prime Minister Stephen Harper announced a major cabinet shuffle in which Ajax-Pickering MP Chris Alexander was named the new Minister of Citizenship and Immigration (C&I) while former C&I Minister Jason Kenney is named Minister of the newly created Ministry of Employment and Social Development (formerly Human Resources and Skills Development Canada).  It is interesting to note that Minister Kenney was moved to a department that is still closely related to the functions of his former portfolio, particularly in matters relating to offers of employment for temporary foreign workers and prospective immigrants to Canada.  This could mean a continuing slew of legislative and policy reforms consistent with those that he started in his previous posting and which could significantly affect the socio-economic landscape in this country. 

It may be recalled that some four years ago, a series of investigative reports about the abuse and exploitation of live-in caregivers in the Toronto Star prompted a series of government consultations, legislative and ministerial reforms which were all supposedly meant to address these issues and promote fairness and justice for this extremely vulnerable sector of Canadian society.

These legislative and administrative reforms included measures that were meant to discourage and punish certain exploitative acts of unscrupulous agencies, recruiters and employers.   Measures were also introduced to reduce hardships of live-in caregivers who are participants of the Live-in Caregiver Program (LCP) through the amendment of certain requirements and faster processing of work permits, including open work permits, which provide greater freedom and flexibility for the caregivers to leave abusive employers and choose other types of work.    

While many LCP participants have benefited from legal and policy reforms implemented in the past few years, still many are suffering the hardships that arise from yet unresolved systemic flaws of the LCP.  These include prolonged family separation, inadvertent loss of status, being overworked and underpaid or worse, unjust refusals of permanent residence applications after many years of toiling under the most exploitative working conditions. 

First of all, the prolonged family separation starts when LCP participants are deprived of the opportunity to bring family members to Canada at the outset.  After completing the required two years of full time live-in caregiving work, the caregiver applicants with no overseas dependents wait a few more years to obtain the much-coveted permanent resident status.  For applicants with spouses and/or dependent children, the wait time could stretch to several years depending on visa office backlogs and various issues that arise while assessing the admissibility of dependent family members.  Strict scrutiny of even minor criminal records, medical issues, school records (for dependents based on their being in continuous full time studies since age 22), uncooperative family members who stubbornly refuse or negligently fail to comply with sometimes repetitive visa office requirements, often lead to lengthy processing times that could almost seem like eternity for those who have long been awaiting permanent residency and reunification with their beloved family members.  While enduring such onerous wait times, life goes on for everyone involved, which may lead to strained marriages, adulterous spouses, rebellious teenaged children who get embroiled with drugs and other illegal activities, serious illnesses and other unfortunate sidelights to an already complicated and tedious process for the principal caregiver applicant.  When one or more of these happen, the long wait times may lead to a heartbreaking refusal of the permanent residence application not just for the inadmissible family member, but for everyone else.  This is most unfair to the principal caregiver applicant who toiled many years and consequently established a productive life in Canada but is being refused permanent residency for reasons which are mostly beyond her control.   

Second, a widely prevalent yet still largely ignored reality is the slavelike treatment of LCP participants which is an inevitable consequence of the mandatory live-in requirement and the vulnerable immigration status sanctioned by this inherently flawed immigration program.  Canada’s immigration law provides that participants of the LCP perform caregiving services for children, the elderly or disabled.   It is not legally defined as a domestic worker program or worse, a license to conduct modern-day slavery.  However, despite this clear legal provision limiting the function of caregivers to taking care of children, the elderly or the disabled, a vast majority of employers require their live-in caregivers to perform substantial household chores such as cleaning, cooking, washing clothes and dishes, shoveling snow, washing vehicles, serving their guests during lavish house parties or even staffing their businesses and cleaning their relatives’ and friends’ houses, in addition to their caregiving duties.  The caregivers are often required to work long hours with no overtime pay.  They can also be deprived of private living quarters, are forced to eat food they do not like, or refused proper breaks or vacation and sick leaves.  The tales of excessive hardship and abuse of LCP workers still abound yet are seemingly being swept under the rug.   

A recent ruling of the BC Supreme Court convicting an employer of trafficking a domestic worker into Canada may have helped to highlight that this problem continues to exist despite recent efforts to protect this vulnerable class of workers.  Although the domestic helper involved in the BC trafficking case was a not a participant of the LCP (her employers brought her into Canada as a visitor), she was promised permanent residency after working for two years in Canada, which was clearly based on the well-known and much abused LCP condition.  Although the facts of this particular case did not occur within the specific context of the LCP, the very same exploitative conditions were perpetrated based on the promise of prospective permanent residence in Canada which made the LCP such an attractive option for many. 

Despite efforts in recent years to implement reforms to the LCP and protect its caregiver participants, much remains to be done in eradicating the problems spawned by this program.  The ongoing hardships of caregivers and similarly-situated temporary foreign workers are totally inconsistent with claims of a just and humane Canada. 

From the various consultations when he was the highly visible Minister of Citizenship and Immigration, the new Minister of Employment and Social Development must have already become quite familiar with these ongoing tales of woe.  Thus, we can only hope that this recent cabinet leadership change will also lead to a much better informed, effective and efficient coordination between these relevant departments that will truly change many lives for the better.

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

Thursday, 27 June 2013

Dealing with an Imperfect Immigration System

Filipiniana News –  JUNE  2013
RHYME & REASON

Citizenship and Immigration Canada recently posted a notice on its website which reads:

June 11, 2013 — The Professional Association of Foreign Service Officers (PAFSO) union is currently taking strike action.  PAFSO union members responsible for processing visa applications have been walking out of offices in Canada and overseas.

Posted processing times for both temporary and permanent resident visa applications do not take into account work stoppages.

Anyone applying for a visa should anticipate delays and submit their application as far in advance as possible.

Contingency plans are already in place to ensure all offices remain open and are providing at least a minimum level of service. Priority will be placed on urgent humanitarian applications.
CIC continues to closely monitor the situation.”

This notice serves to highlight once more the fact that Canada’s  immigration system is far from being perfect and will always be subject to human limitations and fallibility.   

For instance, processing delays are the most frequent complaint vis-à-vis immigration applications.  As many people know only too well, immigration applications can easily fall into a seeming blackhole for months and even years on end.  However, this should not lead to complacency and/or helplessness.  Instead, this reality should encourage us to come up with efficient and creative ways of dealing with such a system, imperfections and all.  

In my immigration law practice, I have often encountered situations where clients were prejudiced by errors committed not by them, but by the frontline immigration officers or clerks handling their files.  The errors could simply be typographical:  e.g. that their personal or contact information were wrongly entered or that the notices were sent to the wrong address.   They may also consist of unexplained processing delays in the issuance of decisions or of visas and landing documents long after a positive decision has been rendered.  Worse, the errors could also be substantive, i.e. arbitrary decisions or reasons for refusal especially in applications involving the exercise of discretion which makes it difficult to predict outcomes despite what the law, regulations or judicial precedents provide.

Typographical errors can often be dealt with most easily by correcting them at the earliest opportunity.   Pointing out these errors to the appropriate office should be simple enough if the applicant realizes the mistake earlier on.  A bigger problem could arise when the communication from CIC is never received because it was sent to a wrong address.  One way to avoid this problem is to regularly check with the CIC call center or to follow up directly with the office concerned if a decision is not received within the “normal” processing times that are published on the CIC website.  By doing so, the applicant will eventually learn if a communication has been sent and if so, provide notice to CIC that it was never received.

Procedural delays, on the other hand, are clearly part of a bigger problem within the government bureaucracy and is something that needs immediate reform.  However, further delays can be reduced if not avoided when one submits as “complete” an application package as possible and makes full disclosure of all relevant information to avoid the need for CIC to require further submissions. 

In the case of substantive errors (or procedural errors resulting to violations of natural justice), the remedies could include making a request for reconsideration, invoking a statutory right to appeal or submitting an application for leave and judicial review with the Federal Court.  These procedures have specific legal requisites and limitations and will not necessarily lead to desired outcomes.  At the very least, they give one a second kick at the can from the perspective of another adjudicator, judge or decision maker. 

That having been said, it cannot be overemphasized that a healthy dose of patience and perseverance are required when dealing with our immigration system.   We should therefore avoid contributing to the problem by failing to be thorough, honest and judicious in all submissions or representations made.  At the same time, we need to remain vigilant and persistent in advocating for positive change until our messages are fully heard and acted upon.

Even though we might sometimes find ourselves seemingly trapped and totally discouraged, taking proactive steps to address the issues is the only way forward.  When we always try our best to overcome struggles within an imperfect system, we can still remain perfectly confident and hopeful that things can only get better. 

For now, it is hoped that the current strike action by Canadian visa officers worldwide will help in resolving some of the deeply rooted problems within the immigration system, instead of making them worse.

This article is 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 tel. no. (416) 901-8497 or via email at deanna@santoslaw.ca.

 

Monday, 27 May 2013

Federal Skilled Worker Class and Reopening of Parental Sponsorships

Filipiniana News – MAY 2013
RHYME & REASON

When I wrote last month’s column, the list of qualifying occupations for the new Federal Skilled Worker (FSW) class had not been released.  Just recently, Citizenship and Immigration Canada (CIC) announced the following list of occupations which may qualify an applicant under the FSW class even without a validated job offer from a Canadian employer:
  • 0211   Engineering managers
  • 1112   Financial and investment analysts
  • 2113   Geoscientists and oceanographers
  • 2131   Civil engineers
  • 2132   Mechanical engineers
  • 2134   Chemical engineers
  • 2143   Mining engineers
  • 2145   Petroleum engineers
  • 2144   Geological engineers
  • 2146   Aerospace engineers
  • 2147   Computer engineers (except software engineers/designers)
  • 2154   Land surveyors
  • 2174   Computer programmers and interactive media developers
  • 2243   Industrial instrument technicians and mechanics
  • 2263   Inspectors in public and environmental health and occupational health and safety
  • 3141   Audiologists and speech-language pathologists
  • 3142   Physiotherapists
  • 3143   Occupational Therapists
  • 3211   Medical laboratory technologists
  • 3212   Medical laboratory technicians and pathologists' assistants
  • 3214   Respiratory therapists, clinical perfusionists and cardiopulmonary technologists
  • 3215   Medical Radiation Technologists
  • 3216   Medical Sonographers
  • 3217   Cardiology technologists and electrophysiological diagnostic technologists
The number before the occupation refers to the National Occupational Classification (NOC) code, Canada’s official guide for occupations which prescribes the possible job titles, duties and qualifications for every occupation.

The pass mark will remain at 67 points out of a maximum of 100 points and the revised  weight of the selection factors under the FSW class would be as follows:
·         The language factor will be given up to a maximum of 28 points (or 24 points for the first official language and 4 points for the second). 
·         For the age factor, a maximum of 12 points will be given for applicants who are between 18 and 35 years old. 
·         Under the education factor, a maximum of 25 points are provided but a mandatory assessment of foreign educational credentials by one of the accredited credential assessment organizations and regulatory bodies identified by CIC will be required before an application can be submitted.   
·         For work experience, a maximum of 15 points will be given for relevant experience of at least 6 years or more.
·         The arranged employment factor will still receive 10 points but it has to be confirmed by a valid labour market opinion (LMO).  The arranged employment opinions (AEO) that were issued by Service Canada for previous FSW class applicants had been scrapped.
·         The adaptability factor is still given the maximum of 10 points for the applicant and his/her spouse’s past study and work in Canada, language proficiency of the applicant’s spouse, arranged employment and presence of family in Canada.  

While the changes to the FSW class are now in effect, the following proposed changes have just been released and are expected to take effect in the beginning of next year.

Reopening of Sponsorships for Parents and Grandparents

On 10 May 2013, CIC announced the resumption of the parents and grandparents sponsorship category on 2 January 2014 but with a number of significant changes.  Among the proposed changes which are still subject to public consultations are:
·         An increase of 30% to the minimum necessary income to become eligible to sponsor parents and grandparents
·         The minimum necessary income must be met for the three consecutive tax years prior to submitting the sponsorship application instead of just for one year
·         Only documents issued by the Canada Revenue Agency will be accepted as proof of the sponsor’s income
·         The period of sponsorship undertaking will be extended from 10 years to 20 years
·         The age of dependents will be reduced from 22 years old to 18 years old.  Dependency based on continuous studies after the age limit will be removed.  Dependency based on a mental or physical disability will remain.

The Regulatory Impact Analysis Statement on these changes state that transitional provisions will allow the inclusion of dependents under the current definition if the permanent residence application was submitted prior to the entry into force of the proposed changes. 

On the whole, these proposed changes appear quite drastic and will surely affect a substantial number of potential applicants.  Hopefully, further public consultations will yield more benevolent reforms that will continue to promote, instead of prejudice, Canada’s important immigration objective of family reunification.

The above are for legal information 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.

 

Saturday, 27 April 2013

New Federal Skilled Worker Changes and Start-Up Visa Program

Filipiniana News – April 2013
RHYME & REASON

On 1 July 2012, Citizenship and Immigration Canada (CIC) temporarily stopped accepting applications for permanent residence under the Federal Skilled Worker category unless the applicant has a validated arranged employment offer from a Canadian employer,  is enrolled in good standing in a PhD program for the last two years or graduated from a PhD program within the last 12 months from a Canadian university.   

Many have been waiting for CIC to announce when the Federal Skilled Worker Program will be reopened and to see what the new program will look like.  Recent announcements from CIC have given us a general idea of the changes, which are expected to include the following:
·         Language points will be given the biggest weight among all the selection factors for up to a maximum of 28 points (or 24 points for the first official language and 4 points for the second).  Previously, the maximum points awarded for the first language was 16, plus up to 8 points for the second language, or a maximum of 24 points.  The reason for this change is that CIC is convinced that language skills in either English or French is a major factor that helps facilitate quicker integration into Canadian society.
·         For the age factor, a maximum of 12 points will be given for applicants who are between 18 and 35 years old.  Prior to this, the cut-off age to be entitled to a maximum of 10 points was 49 years old.  The rationale given for this new emphasis on younger immigrants is that they “are more likely to acquire valuable Canadian experience, are better positioned to adapt to changing labour market conditions, and who will spend a greater number of years contributing to Canada’s economy,” according to CIC. 
·         Under the education factor, the points awarded (maximum of 25 points) will not anymore be based solely on the degree/s obtained and the total number of years of education.  Under the new rules, there will be a mandatory assessment of foreign educational credentials by an assessment agency or regulatory body to be designated by CIC.  
·         The points for foreign work experience have been reduced to 15 points (from the former 21 points) with increased number of years required to receive the maximum points.  This is in recognition of the fact that unlike age and language skills, foreign work experience had proven to be a weaker indicator of success in the Canadian labour market. 
·         The arranged offer of employment (AEO) which was accepted under the previous system as a basis for awarding points under the arranged employment factor, will be replaced by the labour market opinion (LMO).  One of the main differences between an AEO and an LMO is that the latter requires the employer to advertise the job and try to find Canadians or permanent residents first.  Since the LMO can also be used by the foreign worker to apply for a work permit, this will allow the applicant to start working legally in Canada even before the grant of permanent resident status.
·         The adaptability factor is still given the maximum of 10 points but CIC states that there will be more opportunities to gain more points under this factor, including work experience, period of study in Canada and language proficiency of the applicant’s spouse. 

CIC also announced that new applications will be accepted starting 4 May 2013, based on the new eligibility criteria.  However, as of this writing, many questions remain as no exact details have been released, i.e. whether there will be a new occupations list, whether the pass mark will remain at 67 points (out of a maximum of 100 points), and which credential assessment organizations and regulatory bodies will be designated to conduct the required education credential assessment of the applicants.

Start-Up Visa Program  

For the entrepreneurial types, a new and ambitious pilot project which took effect on 1 April 2013 with much fanfare may be something worth looking into.  The Start-Up Visa Program is supposedly intended to attract innovative ideas from start-up entrepreneurs who are able to convince a Canadian venture capital fund or an angel investor group to invest a designated  minimum amount in the applicant’s business ($200,000 from a Canadian venture capital fund or $75,000 from a Canadian angel investor group).  Once the applicant is able to secure the required funding commitment, this can be used as basis for applying for a permanent resident visa, provided that the language, education and settlement fund requirements are also met. 

CIC states that this new category is meant “to enable immigrant entrepreneurs to launch innovative companies that will create jobs in Canada, and eventually, compete globally” by linking them up with private entities which can assist in “navigating the Canadian business environment.”   However, the guidelines require that prospective applicants will need to approach and apply for funding directly from any of the designated Canadian venture capital fund or angel investor groups. Only after the applicant’s business plan is approved and granted the minimum investment required can an application for a Start-Up immigrant visa be submitted to CIC.  

These recent changes, along with the Federal Skilled Trades Program that was introduced in January 2013, are all consistent with the present government’s goal to “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.   

Whether or not such goals will be met by these changes remain to be seen.  While a focus on jobs and the economy is admittedly important, it is hoped that this will not lead to the eclipsing of the other equally important immigration objectives such as family reunification and the promotion of Canada’s human rights and humanitarian obligations.    

The above are for legal information 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.

On a personal note, I would like to wish my dearest sister, Cecille Santos, a very happy birthday!

Wednesday, 27 March 2013

Appeals vs. Judicial Review Applications

Filipiniana News – March  2013
RHYME & REASON

Since most immigration applications are submitted without legal representation, it is often only when these applications are refused that the applicants will decide to seek the legal services of an immigration lawyer.  The first question asked of the lawyer is, can we appeal the negative decision? 

It must be noted that there are limited types of immigration decisions that can be appealed with the Immigration Appeal Division of the Immigration and Refugee Board (IRB).   Most immigration decisions however, can be elevated to the Federal Court via an application for leave and judicial review. 

What is the difference between these two legal remedies?  Isn’t the Federal Court application also a form of appeal?   In the sense that it gives a further chance to be heard by another decision maker, yes, it may be considered a form of “appeal”.  Under Canadian immigration law however, an appeal is distinct from a Federal Court judicial review application.  Each of these legal remedies has specific purposes, requirements and limitations.  

An immigration appeal is filed with the Immigration Appeal Division of the IRB (an administrative tribunal) while an application for leave and judicial review is filed with the judicial courts.  Since immigration laws are under Federal jurisdiction, this means the Federal Court of Canada.   

An appeal is a trial de novo, thus allowing the appellant to present as evidence not only documents already before an officer but also additional factual evidence not previously submitted.  The decision maker in an appeal (a tribunal board member) can substitute its decision over that of the originating decision-maker.

A Federal Court judge on the other hand, can only decide on judicial review whether or not the decision of the administrative tribunal was reasonable or consistent with legal and natural justice principles.  If judicial review is allowed (i.e. the court finds the administrative decision unreasonable), the judge will send back the matter for redetermination by another administrative decision-maker.  A Federal Court judge cannot itself render the administrative decision such as that of granting an immigration application. 

The closest that a judge can get to intervening with an immigration process is via the filing of a motion to stay a removal order which, if granted, prevents the enforcement of a removal order against the applicant pending the final decision on the underlying application for leave and judicial review.  In rare instances, some Federal Court judges have also granted stays of removal orders until a final decision is rendered on an existing immigration application.  In either case, the final decision on the immigration application still rests with the administrative officer or tribunal.  .  

The stay motion filed with the Federal Court involves specific procedures and strict deadlines.  Aside from the notice of application for leave and judicial review, there is the motion record to be submitted which must consist of a properly indexed, paged and bound compilation of facts (presented through affidavits), supporting documents, legal arguments and a book of authorities.  One can only imagine the amount of physical and mental energy (i.e. legal research and analysis) entailed by the preparation of these submissions within very limited time constraints.  A copy of the record needs to be served on the Department of Justice (DOJ) before copies are submitted to the Federal Court registry with proof of service to DOJ.  The matter must then be orally argued before a Federal Court judge on motions day (or any other day with leave of court).  Only after all these have been done will the judge decide whether or not to stay the removal order.  It is not unusual for a judicial stay to be granted at the very last minute, e.g. when the applicant is already at the airport or has even boarded the airplane!

The application for leave and judicial review on the other hand, is where the serious legal and/or factual issues are actually decided upon, i.e. the main application upon which the stay motion is based. Apart from the expected logical and succinct presentation of facts and legal arguments, the record must comply with strict technical rules involving the number of pages, margins, tabbing, binding, etc.  The application record is submitted within a set period and if granted leave, the matter is scheduled for hearing before another Federal Court judge.  While it is possible to find legal arguments in many cases, the case would still be very weak if the foundation itself is weak.  It is an important principle to note that in a judicial review application, additional evidence cannot be submitted which were not also presented to the administrative officer for consideration in the decision under review.   It is not an “appeal” after all, but a “review” of the administrative decision by the judicial branch.   Therefore, in these instances, winning at the Federal Court level will be a tough battle, unless there are clearly serious procedural and substantive administrative errors committed by the administrative decision-maker.  If the judicial review is allowed, the matter will be sent back to another administrative decision-maker for redetermination.

While non-lawyers are allowed to represent clients at the Immigration and Refugee Board, only lawyers can appear before the Federal Court.   However, at both levels, there are specific rules to be followed and evidentiary burdens to be met.  If the lawyer is called upon to assist only at the Federal Court level to seek leave to file judicial review and/or file a motion to stay the removal order, it will be a very challenging task to obtain a positive ruling if the legal and factual foundation are weak or had been weakened by errors committed earlier on.

Hopefully, the above has somehow aided towards a better understanding not only of immigration appeals vis-à-vis Federal Court judicial review applications and motions, but also on the role of immigration lawyers in these processes.

Please note that the above are for legal information 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

Wednesday, 27 February 2013

New Immigration Measures to Address Sponsorship Fraud

Filipiniana News – February 2013
RHYME & REASON

A recent series of articles in the Toronto Star dealing with experiences of victims of spousal sponsorship fraud prompted me to revive this topic that I have discussed a few times in this column.  Sadly, these stories and even some comments from readers reveal a continuing lack of knowledge and/or misunderstanding of the complex and ever-changing immigration laws, including those involving spousal sponsorships. 

There are two types of spousal sponsorship applications. The first is the outside Canada sponsorships that are initially submitted to the Citizenship and Immigration Canada (CIC) Case Processing Centre in Mississauga, Ontario and then forwarded to the visa office where the applicant spouse is a resident or citizen.  The second is the inland application under the Spouse or Common-Law Partner in Canada class that is submitted to the CIC Case Processing Centre in Vegreville, Alberta.  Depending on the sponsor and the applicant’s situation, there are pros and cons in choosing either option which are best canvassed with an experienced immigration advisor. 

Let me also clarify that contrary to common misconception, spouses of live-in caregivers are not “sponsored spouses” but are concurrent applicants if they are included as accompanying dependents in the LCP permanent residence applications. 

These newspaper accounts of sponsorship fraud actually describe a scheme that CIC has long been referring to as “marriages or relationships of convenience.”   Due to the increased incidence of these types of fraud, CIC has imposed stricter regulations for this class of immigration applications, i.e. family class applications for spouses, common-law partners and conjugal partners.   As discussed in a previous column, these changes are as follows: 

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 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 this single word 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  spousal sponsorship applications from 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 new CIC regulations provide that the permanent resident status of those who were 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.

However, 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 necessities 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 information are being provided for educational 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.