Tuesday, 30 December 2014

Caregiver Program Clarifications and Clawbacks?

Filipiniana News – December 2014
RHYME & REASON

Since the new Caregiver Program was announced on 31 October 2014  and the Ministerial Instructions  released shortly before the implementation date of 30 November 2014, many questions, varying interpretations and even misinformation have been going around and creating fear and confusion within the caregiver community.   Although based on the scant information and guildelines available on the CIC website and the Ministerial Instructions published in the Canada Gazette, I hope that the following will help clarify some of the issues. 

LCP participants will be processed under the old LCP rules

One of the most frequently-asked questions after the new Caregiver Program was announced is whether those who are already in Canada and working under live-in caregiver work permits but who have not yet completed the two-year requirement can still apply for permanent residence under the old Live-in Caregiver Program (LCP).   The short answer is yes.   

However,  when the Ministerial Instructions were published in the Canada Gazette, worries were triggered by a provision stating that "no new permanent resident application under the Live-in Caregiver Class will be accepted for processing".  What many people failed to note is the second clause of this provision:  "unless it is supported, at the time of application receipt by CIC, by evidence that the underlying work permit associated with the foreign national’s initial entry as a live-in caregiver under the Live-in Caregiver Program (LCP) was based on a Labour Market Impact Assessment (LMIA) that was requested from Service Canada on or before November 30, 2014."  

Since the work permits of existing LCP participants upon their initial entry to Canada were based on LMOs/LMIAs that were requested before the effectivity date of the new Caregiver Program, these caregivers continue to qualify for permanent residence under section 113 of the Immigration and Refugee Protection Regulations.  

Thus, a live-in caregiver who initially came to Canada under an LCP work permit but who wants to change employers for whatever reason, is free to do so, provided that the new employer obtains an LMIA under the new rules.  This is probably where part of the confusion lies - since the LMIA requirements have changed, it may become more difficult for a prospective employer to obtain a positive LMIA for a live-in caregiver.   If the caregiver succeeds in obtaining a new LMIA-based work permit after 30 November 2014,  he/she should still qualify to apply for permanent residence under the old LCP rules.

Ban on Humanitarian and Compassionate Requests

The following provision in the Ministerial Instructions somehow became another source of fear and confusion:  "Requests made on the basis of humanitarian and compassionate grounds from outside Canada that accompany any permanent resident application affected by Ministerial Instructions but not identified for processing under the Instructions will not be processed."

Due to the various issues inevitably faced by caregivers, many are relying on H&C consideration to be granted an exemption from certain grounds that could lead to a refusal of their application.  Hence the fear that if H&C  requests will not anymore be allowed, many will lose their chance at obtaining permanent residence.  However, a plain reading of this provision is that CIC will not grant H&C requests in favor of dependents of caregiver applicants (under the new Caregiver Program) who are residing outside of Canada.   It does not, on its face, bar H&C requests from caregiver applicants themselves and/or their dependents who are in Canada. 

Claw back of Previous "Improvements" to the LCP? 

It is also quite disturbing to note that with the recent changes, it appears that many of the previous LCP changes and improvements (which were largely achieved through sustained advocacy efforts) are being clawed back.  

I would be happy to be proven wrong, but so far, some examples of these apparent clawbacks are:
1.  The variations to the recruitment and advertising requirements - under the LCP, there is no need to show proof of recruitment and advertisement efforts if an employer is hiring a live-in caregiver who is already in Canada.   There does not appear to be any similar waiver for LMIA applications under the newly-created classification of "in home caregivers" which are subject to the usual recruitment and advertising requirements for all temporary foreign workers.
2.   The alternative option of proving two years of live-in caregiving work, i.e. 3900 hours within at least 22 months and can count up to 390 hours of overtime work.  The new Caregiver Program or the corresponding CIC checklists do not anymore allow such an alternative option of meeting the two-year work requirement. 
3.  The quick issuance of open work permits even before the grant of approval in principle of LCP applications which was granted in recognition of the hardships that caregivers suffer as a result of application processing delays.   Under the current Caregiver Program, there is only an expressed intent to expedite the processing of  permanent residence applications (i.e. within six months)  but there is no similar commitment to expedite the issuance of temporary work permits, whether LMIA-based or open work permits. 
4.  The removal of the second medical examination requirement when applying for permanent residence, or the Juana Tejada Law, named after the caregiver who was initially refused permanent residence on medical grounds after she was diagnosed with cancer.   Under the current CIC document checklists for the new Caregiver classes,  an "Upfront medical examination within the year prior to application" is required for the principal applicant and all dependents.   If so, the return of the second medical examination requirement could again lead to unjust refusals due to medical inadmissibility of caregivers who enter Canada as temporary foreign workers after passing the initial medical examination, but who will be diagnosed with cancer  or some other serious illness while working in Canada and before applying for permanent residence. 

On top of the above, the most obvious "claw back" is of course the removal of the right to apply for permanent residence after completing the two years of full time caregiving work due to the annual quotas and the added education and language requirements.  

Therefore, we must not only persist in bringing to the government's attention the many shortcomings of the recent changes, but we must also ensure that the positive changes to the old LCP will at the very least be preserved and not clawed back under the new caregiver program. 

Merry Christmas and a Blessed Holiday Season to all! 

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.   

Thursday, 27 November 2014

"Reformed Caregiver Program"

Filipiniana News – November 2014
RHYME & REASON

"Reformed Caregiver Program" 

On 31 October 2014, Citizenship and Immigraion Minister Chris Alexander officially announced the changes to the Live-in Caregiver Program (LCP) that will be launched on 30 November 2014.  A few days later, he guested at a Filipino radio program in Toronto called Pinoy Dreams to answer related questions and clarify the changes.

From these media releases, it appears that the changes to the LCP consist of the following:
1.  The live-in requirement will become optional.  Employers of live-in caregivers will need to pay higher wages and cannot anymore deduct the cost of room and board from the caregivers' wages. 
2.  There will be two possible pathways for permanent residence for caregivers: the Caring for Children Pathway and the Caring for People with High Medical Needs Pathway (elderly and disabled). 
3.  There are new language (at least CLB 5) and education requirements (equivalent to one-year Canadian postsecondary level) for obtaining permanent residence in addition to the 24 months of full time work within four years of arrival, in either of the two pathways.   
4.  There will be a quota of 2,750 principal applicants to be admitted each year for each pathway (for a yearly total of 5,500).
5.  The processing time for permanent residence applications under these caregiver pathways will be six months.  

At first glance, these changes sound very positive and will hopefully benefit not just caregivers, but also their employers and Canada as a whole.   Minister Alexander's responses to questions at his radio guesting also helped clarify many aspects of these changes.   It is also good to hear him validate what advocates have long been asserting amidst allegations that caregivers are abusing the LCP.   He did so by stating that, while he is aware that "there are some caregivers who abuse the program, there are many more employers who are abusing the caregivers."   Thus, he assured that the main objectives of the government's most recent reforms include: "faster processing, enhanced career opportunities for caregivers, less separation from families and more protection for caregivers." 

However, several more questions remain unanswered as the future of caregivers and their families remain quite uncertain.  As of this writing, CIC has only released a summary of the changes but not the specific operational guidelines.  Once these guidelines are released, I will be  happy to share them in future articles.

Optional Live-in Condition

In a properly monitored and balanced employment situation, the removal of the live-in requirement is a welcome change that can truly help reduce the vulnerability of the caregivers.  This will not only help regulate the number of hours that a caregiver will be required to work but will also make it easier to delineate regular from overtime hours and their corresponding wage rates.  It will hopefully create a healthier and more humane work environment instead of  perpetuating a system that had been likened to "modern day slavery".

However, it must be noted that a caregiver work permit initially requires an approved labour market impact assessment (LMIA) which can only be approved if an employer is able to prove that there is no other Canadian or permanent resident who is qualified and willing to perform the job.   In the past, the justification given for the live-in requirement is that there is allegedly "no shortage of live-out caregivers in Canada."     Thus, for foreign workers who are often desperate to grab any opportunity to work in Canada, it would not be surprising if many would still agree to perform live-in caregiving work if only to improve their chances of landing a job in Canada.    For their part, employers would likely become hesitant to shell out the $1,000 LMIA processing fee (in addition to the costs of recruitment, transportation, etc. as required by law) in a live-out caregiving arrangement if it will most likely be refused due to the perceived lack of labour market shortage.

Moreover, although the government has tried to increase protection for live-in caregivers by not allowing employers to deduct costs of room and board from the caregiver's wages, there is no clear guarantee that this will be strictly monitored and properly enforced.   In most cases, the employers get away with non-compliance with the terms of an employment contract simply because the caregiver would rather not complain and risk delays in obtaining permanent residence upon completion of the required two years of caregiving work.   Nor is there any mechanism in place to ensure that these regulations are followed and caregivers are not prejudiced by the employer's non-compliance with legal requirements or any attempts to report the same to the authorities.  

With these concerns, it is highly doubtful that a live-out option will become the norm anytime soon.  But having such an option is a good start.

Non-Retroacivity and New Quota for Caregivers Granted Permanent Residence

It provides relief for caregivers who came under the LCP to hear the CIC Minister's assurance that all who came under the LCP will be processed based on the old rules.   However, what causes great worry under the new program is the imposition of an annual quota of 2,750 for each pathway for a total of 5,500 a year, without a similar quota for incoming caregivers.   There is reasonable fear that this imbalance will lead to many people losing status and going underground thus creating even greater vulnerability for the workers and inevitable separation from their overseas family members.  

In response, Minister Alexander said at his radio interview that this 2,750 (per pathway) quota is just for 2015, for those who are already in the LCP but who may qualify under the "reformed" Caregiver Program. This, he said, is  in addition to their target of processing the backlog within the next two years (approximately 30,000 PR applications each year).   He added that it is up to the government to set new immigration targets/levels   for subsequent years depending on the government's priorities and other relevant factors.   

With these targets, it is hoped that not only will the government fulfill its goal of clearing of the current 60,000 or so backlog applications under the LCP,  but that the new quotas will eventually increase in proportion to the numbers of caregivers being admitted to Canada.   This is not only fair, but will also avoid an increasing number of people being led into the underground economy who will not only be subject to untrammeled abuse and exploitation, but which will also artificially downgrade the wages for Canadians and permanent residents. 

As in all legislative changes, their real test lies in the actual implementation.  Although we are grateful that some positive reforms have been introduced, we hope that they will be coupled with strict and proper enforcement to ensure that they are producing intended results.   If these reforms prove ineffective in addressing the perennial issues plaguing the caregiver program, then we hope that the government will continue to consider the various proposals of well-meaning advocates who have seen or experienced first hand the sufferings of caregivers.  

Future reforms must also properly consider and take steps to reduce the great power imbalance and economic disadvantage resulting from precarious immigration status.   It would be even more ideal if Canada will lead the rest of the world in putting an end to this type of human exploitation.  This can only be realized if all migrants, including caregivers, are admitted as permanent residents at the outset instead of continually being treated as "disposable" temporary workers. 

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.   

Thursday, 30 October 2014

Express Entry System and Caregivers

Filipiniana News – October 2014
RHYME & REASON

Express Entry System and Caregivers
  
There are barely two months left before the end of 2014 and the expected implementation date of the much-touted Express Entry system by Citizenship and Immigration Canada (CIC).   However, CIC  has yet to release the implementing details of this system that is scheduled to begin on 1 January 2015. 

Earlier this year, CIC Minister Chris Alexander announced that the previously termed "Expression of Interest" (EOI) system will be officially known as "Express Entry".  As had been previously introduced in the EOI system, the Express Entry is supposedly a proactive approach meant to better address Canada's labour market needs.

It has been clarified that this is not a separate immigration program but simply a framework and an entry door to the existing immigration programs (Federal Skilled Worker, Federal Skilled Trades, Canadian Experience and Provincial Nominee classes).   The Express Entry system is meant to create a pool of prospective immigration applicants from which Canadian employers can choose potential employees who will then be invited to apply for permanent residence in Canada under one of the existing categories.  CIC will then process their permanent residence applications on an expedited basis, within a period of six months or less.  Thus, Canadian employers are expected to work with the government in selecting the best candidates to match their needs and who will be deemed deserving of being granted permanent residence in Canada.

Meanwhile, in the past few months, closed-door consultations were conducted by CIC among a select group of participants where the proposed changes to the Live-in Caregiver Program (LCP) were discussed.  Most recently, those who attended these consultations have spoken with the media which led to various speculations, particularly on the proposal to incorporate caregivers into the Express Entry system.  

Understandably, this alleged government proposal is causing  a lot of confusion among caregivers and advocates.   First of all,  it is still unclear how caregivers will fit in the Express Entry framework.    While it is alleged that caregivers will be encouraged to apply under the Canadian Experience Class, it is not very clear under what terms.  Does this mean that the CEC will be amended to  allow caregivers and other "low-skilled" (NOC C and D)  or low-wage workers (earning below the median wage of $21/hr in Ontario) to qualify for permanent residence after one or two years of full time work in Canada?  

Overall, the lack of adequate information on the Express Entry system raises many questions not only about how this system will look like, but also how it would affect the scope and implementation of the current immigration programs.   Will the current eligible occupations lists under the Federal Skilled Worker and Federal Skilled Trades programs be revised or scrapped altogether?  If the eligible occupations lists will remain, how will the processing of applications without specific job offers be affected?  Don't the majority of the existing permanent residence applications under the economic streams already have valid job offers or provincial/territorial nominations?   Is the government moving towards eliminating the permanent residence applications without a valid job offer or provincial/territorial nomination?   

Some of the these immigration changes, though touted as "fair and flexible", also have the potential of treating immigration applicants less fairly and flexibly.  We can cite as clear examples from the recent past, CIC's return of pending applications under the Federal Skilled Worker class, as well as the closure of the Investor and Entrepreneur categories which also led to the return of  thousands of applications after being placed in the back burner for so long.   It is hoped that this time, bureaucratic convenience and economic objectives will not simply run roughshod over the basic principles of equal treatment and fair play.  

Another aspect of equal treatment and fair play deals with the introduction of reasonable paths for permanent residency not just for high-skilled occupations (classified as NOC O, A or B) but also for the many more thousands of workers under the occupations requiring lower levels of education (NOC C and D).  

Many temporary foreign workers who come to Canada to work under the NOC C and D occupations (primarily entry-level and manual jobs that most Canadians would rather avoid) are initially unaware that not only are they limited to a maximum of four years (even expected to be reduced in the near future) of authorized temporary work here, but also that there is no clear path for them to become permanent residents of Canada.   Many  of them learn about these limitations only after their renewal applications are refused and they are instructed by CIC to leave Canada.  

Now that caregivers are being threatened with a similar fate, even more so-called low-skilled workers and their families will be seriously prejudiced. 

For the handful who end up marrying or entering into common-law partnerships with Canadians and permanent residents, there is the option of applying for permanent residence as sponsored spouses.   In exceptional circumstances, there is also the possibility of applying for permanent residence on humanitarian and compassionate grounds if the applicant can convince an immigration officer that there will be undue, undeserved and disproportionate hardship if the permanent residence application is not granted. 

For the rest of the temporary foreign workers under lower-skilled occupations, the options are not very promising.  As a result, they become extremely vulnerable to abuse and exploitation from employers, recruiters and other unscrupulous individuals who will often take advantage of the workers' desperate need to remain in Canada.  If it is true that caregivers will be given a chance to qualify under the Express Entry system, will the same opportunity be granted to all other so-called low-skilled  foreign workers?   We hope that our policymakers and legislators will also take these issues into consideration in their efforts to craft a truly fair and flexible immigration system for Canada. 

As we have seen in the past several years, Canada's immigration landscape has become very volatile and complicated due to the many changes that have been made and which continue to be made.   Thus, if you are, or will be affected by these changes, it is best to exercise due diligence by consulting a trusted legal advisor to discuss your particular circumstances and obtain well-informed and competent legal assistance before it is too late.  

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.  

Tuesday, 30 September 2014

Respect, Dignity and Fairness for Caregivers

Filipiniana News – September 2014
RHYME & REASON

Respect, Dignity and Fairness for Caregivers

Since a vast majority of participants in Canada's Live-in Caregiver Program (LCP) are from the Philippines, it is inevitable that LCP reform is an issue that touches the members of the Filipino community very deeply.   Thus, it behooves us to try to educate ourselves on this very important  topic that affects the lives of many Filipinos who have made, or are planning to make Canada their home. 

As of this writing, the government has yet to announce the details of its proposed reforms to the LCP.  All we know is that it had invited some members of the community in closed-door consultations where the Minister lays down the proposed reforms and solicits comments.   Due to the informal nature of these consultations and the lack of official documentation of the proceedings, various rumours and speculations have arisen which tend to sow fear and division among our already disparate community. 

From the limited information available, the following proposed reforms have been allegedly put on the table by the CIC Minister: 

1.  The live-in requirement will become optional

My initial reaction is that, this sounds good, but optional for whom?  I would support  the idea of making the live-in requirement optional for caregivers and not just for the employers.  Giving the option only to employers will not address the vulnerability of caregivers arising from the live-in requirement vis-a-vis their precarious immigration status.   It also does not solve the problems arising from employer-specific work permits. 

Aside from making the live-in requirement optional for caregivers therefore, this occupation must be exempted from the LMIA requirement or the need to apply for a job offer confirmation (with all its concomitant requirement including the exorbitant $1,000 fee) from Service Canada.   Doing so will remove an unnecessary layer of bureaucracy to the employment process in an occupation where there is clearly a perennial labour shortage.  This will not only speed up the hiring process but also substantially reduce the cost for employers.  

2.  Caregivers would come as temporary workers and can work as caregivers in Canada for two years and be encouraged to apply for study permits afterwards

This is another allegedly proposed reform which has elicited strong reactions from the caregiver community but which is still unclear on details.   First of all, caregivers already have the option of applying for a study permit even if they are working under the current LCP, if their time and resources allow.   In  proposing this as a possible reform or a mandatory requirement for caregivers, it becomes unclear what will happen to caregivers  after their two-year work permits expire, if they do not wish to pursue full time studies or if their study permit applications will be refused by CIC.  Will caregivers be required to leave Canada after two years if they have not obtained or applied for PR status by then?  Will their PR application be expedited for the caregiver and their families to avoid prolonged family separation?   These unknowns can only lead to further insecurity over the caregivers' immigration status. 

It is also not realistic to expect someone working as a caregiver (live-in or live-out) to still be able to pursue full time studies and work for other employers once they are on study permits and allowed to apply for open work permits.  Most of the caregivers who come to Canada intend to work full time to earn income that they need to support their families.  Considering the nature of caregiving work, very few caregivers will have the time, energy and resources to pursue full time studies at the same time. 

The critical point is, requiring caregivers to enter Canada as temporary foreign workers will not address their ongoing vulnerability due to their precarious immigration status.   The only way to address the vulnerability of most caregivers is to grant them permanent residence upon arrival in Canada.

3.   Remove the government's obligation to grant caregivers permanent residence under the LCP and instead require them to apply for permanent residence under the Canadian Experience Class (CEC) and/or through the Express Entry

This alleged government proposal is perhaps the most controversial and least understood.   First of all, the government has yet to release the implementing details of the Express Entry system, which is set to be launched on 1 January 2015.   All that has been made known is that this is not a separate immigration program but simply a framework and an entry door to the existing immigration programs (Federal Skilled Worker, Federal Skilled Trades, Canadian Experience and Provincial Nominee classes).   The Express Entry will supposedly create a pool of prospective immigration applicants from which Canadian employers can choose potential employees who will then be invited to apply for permanent residence in Canada under one of the existing categories. 

Where do caregivers fit in this framework?  Again, it is alleged that caregivers will be encouraged to apply under the Canadian Experience Class.  But how?   Does this mean that the CEC will be amended to  allow caregivers and other "low-skilled" (NOC C and D)  or low-wage workers (earning below the median wage of $21/hr in Ontario) to qualify for PR after two years of full time work in Canada?  

Although I know it is not the majority view, I am inclined to agree with increasing the language and education requirement  as I believe that stronger language and education skills will help ease the transition from caregiving jobs to higher-paying career paths which will further their economic establishment in this country.  Although this may result in less applicants who will qualify, I would rather see less caregivers who are treated well and are able to assert their rights than more caregivers who are being exploited simply because their lower qualifications leave them with no other alternative.

To make this proposal work however, the grant of permanent residence must be made at the outset and not only after having toiled for Canadian employers, through the creation of a separate immigration program for caregivers.  Otherwise, the existing problems will remain and many more will eventually fall out of status and will be subject to further abuse and exploitation in the underground economy.   Since out-of-status workers cannot bring their dependent family members to Canada, prolonged family separation will only worsen.   

I continue to hope that the government's intentions in proposing these reforms are made in good faith and with a sincere desire to resolve the issues under the current LCP.  

I continue to hope that the government will eventually recognize the true value of caregiving work and will finally give caregivers what they truly deserve -  respect, dignity and fairness that can only be attained by the immediate grant of full membership in Canadian society, for themselves and their families. 

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.  

Thursday, 21 August 2014

Caregivers Must Be Granted Permanent Residence Upon Arrival

Filipiniana News – August 2014
RHYME & REASON

Caregivers Must Be Granted Permanent Residence Upon Arrival

In last month's column, I wrote about the recent major changes to the temporary foreign worker program that were announced by the government in June 2014, as well as the likelihood that the Live-in Caregiver Program (LCP) will be next on the chopping block.

This "likelihood" threatens to become a reality anytime soon.   In July 2014, the office of  Citizenship and Immigration Canada (CIC) Minister Chris Alexander invited a handful of people from the Filipino community in Toronto to a consultation meeting where he laid out the government's proposed changes to the LCP.   The proposed changes include making the live-in requirement optional and removing the government's obligation to grant permanent residency to live-in caregivers.   Instead, the government proposes to incorporate caregivers into the Canadian Experience Class.  However, various details remain  unclear as none of these proposals have been publicly communicated in writing. 

Sadly, it appears that these the so-called consultation meetings were only open to a limited number of invitees.  There were no official drafts of the proposals provided nor any public record of what was discussed except for informal minutes prepared by some of the attendees.   Hence, the information disseminated outside of these closed-door consultation meetings was based on the subjective understanding or best recollection of those who were privileged to attend.

According to the attendees, the CIC Minister said that, "We do not want these to be the government's reforms.  We want this to be your (the stakeholders') reforms."   If this is true, then it would have made better sense if the government openly invited proposals from key stakeholders, especially from the caregivers themselves, instead of framing the proposed changes on the government's terms.  

The issues that the government allegedly wishes to address in introducing the proposed reforms to the LCP are the 1. vulnerability of live-in caregivers 2.  growing backlog and lengthy processing time for permanent residence applications and 3.  prolonged family separation.   These issues have long been pointed out by critics and advocates as among the main flaws of the LCP.   The fact that this government  finally admitted the existence of these problems is a promising start.

However, we hope that the ongoing process of consultations will also reflect not only an acknowledgment of these serious issues, but also a sincere desire to resolve the same.   These consultation efforts must be extensive and meaningful, and not simply token consultations conducted shortly before announcing the changes that have actually been firmed up.  

Although the key stakeholders in the LCP include not only the caregivers but also the employers, we cannot deny the fact that the interests of caregivers and employers will never be completely aligned.   Due to the intersecting disadvantages arising from their gender (caregivers are mostly women), precarious immigration status (temporary workers), origin (mostly from the Philippines or other developing countries), the scales are tipped against the caregivers  vis-a-vis their employers.   It is not only the caregivers, but also their family's future that are at stake in any changes that will be introduced to this unique immigration program meant to address an undeniable labour market shortage in Canada. 

One thing that the employers could affirm is the great need for caregivers in Canada due to the lack of a universal daycare program for children, adequate and affordable care for the disabled and  the increasingly aging population of Canada.   Having affirmed this great need, the only effective way to address the three major issues identified will be to consider the program from the caregivers' perspective.   What factors lead to their vulnerability?  What forms of hardship result from the lengthy processing of their permanent residence and the prolonged family separation? 

Removing the live-in requirement will greatly help reduce the vulnerability of caregivers.   Granting them open or generic work permits might be even better.  However, as stories of hardship under the LCP have shown, the caregivers' long wait as temporary foreign workers and while their permanent residence applications are in process, only served to facilitate their ongoing vulnerability not only to work-related exploitation but also to painful and prolonged family separation. 

The only way therefore, to level the playing field and protect the human rights of caregivers while meeting the great demand for this occupation, is to grant them permanent residence upon arrival in Canada.   To ensure that they will abide by the purpose of their entry to Canada and integrate well in the Canadian system, certain conditions can be imposed such as slightly higher education and/or language skills and a caregiver employment contract with a qualified Canadian employer.  

However, compliance with the conditions should be enforceable in the realm of employment law or contract law, and not immigration law.   The eventual breakdown of a caregiver-employer relationship should not lead to the stripping of one's permanent residence, but must be dealt with under the appropriate legal forum (e.g. employment standards dispute or a civil case for breach of contract).  The carrot and stick approach under the current LCP has forced its caregiver participants to endure abuses and live in constant fear of removal if the immigration conditions are not satisfied, despite many years of diligent service to their Canadian employers and valuable contributions to the Canadian economy.  The injustices committed against caregivers are well-known,  have been tolerated for far too long and simply have to end. 

The allegation that the LCP is turning into a family reunification program does not only appear to be an  exaggeration, but also smacks of discrimination.   It implies that there are certain classes of people who may be allowed to hire caregivers but not the former caregivers themselves and/or their families.  If the prospective caregiver and the prospective employer meet the qualifications and the job offer is made in good faith, why should their kinship matter?   Doesn't it only make sense that more relatives would prefer to hire people they already know and completely trust to take care of their children, elderly or disabled family members?   And is the Canadian immigration objective of family reunification meant to be applied only to those coming under the family sponsorship class?  Isn't this objective also meant to serve as a guiding principle in any class of immigration applications?   

As in the recent CBSA investigation of so-called "runaway nannies" (caregivers who allegedly leave their employers immediately upon arrival in Canada) there are undeniably abusers in any program.  However, these isolated cases should not be blown out of proportion to justify laws that will result in grave prejudice to the law-abiding majority.  If there are truly such cases, then the solution should focus on fair and proper enforcement and not in painting all other caregivers with the same tainted brush.    

This is to reiterate therefore, the need to push for changes to the LCP  that will fully take into consideration the systemic issues which lie at the root of the problems within the program.  It is about time that the LCP is replaced by something far more equitable and humane for its participants and their families. This will only be realized if caregivers are granted permanent resident status upon arrival in Canada. 

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.   

Thursday, 31 July 2014

Major Changes to the Temporary Foreign Worker Program; the LCP is Next?

Filipiniana News – July 2014
RHYME & REASON

Major Changes to the Temporary Foreign Worker Program;  the LCP is Next?

On 20 June 2014, the Canadian government unveiled major changes to Canada's temporary foreign worker program (TFWP) which were essentially meant to limit access to the program and to encourage employers to prioritize hiring Canadians and permanent residents.

The TFWP was reorganized into two categories:  the International Mobility Program (IMP) and the TFWP.  The TFWP now refers to workers who require a job offer which was confirmed through a labour market impact assessment (LMIA).  The LMIA, formerly called the labour market opinion (LMO), is a more rigorous assessment of the job offer to ensure that Canadians and permanent residents are given a first opportunity at obtaining the available jobs before they are offered to foreign workers.

The IMP on the other hand, refers to those streams of foreign workers who do not require an LMIA before being issued a work permit.  These include work permits issued under Canada's free trade agreements or working holiday programs which offer reciprocal opportunities for Canadians wishing to work overseas. 

The new LMIA that replaced the old LMO system has the following new features:
·         the LMIA application processing fee has been increased from $275 to $1,000 per foreign worker.  Employers seeking to hire primary agriculture workers, including those under the Seasonal Agricultural Workers Program, are exempt from this fee. 
·         Wage levels will now replace the National Occupational Classification as the main criteria for classifying jobs.   Those for which wages are below the provincial or territorial median wage will be considered “low-wage” jobs, while those being paid at or above the provincial/territorial median will be considered “high-wage” jobs.   In Ontario, the current median wage is $21 per hour. 
·         Employers with 10 or more employees applying for a new LMIA for low-wage temporary foreign workers can only hire temporary foreign workers for up to 10 percent  of their workforce
·         Applications for the lowest-wage, lowest-skill, entry-level occupations in the food services, accommodation and retail trade sectors will be barred from the TFWP in areas of high unemployment (6 percent or higher)
·         LMIAs for low-wage temporary foreign workers will be reduced from the current two-year standard duration to one-year periods (except agricultural workers and live-in caregivers)
·         To reinforce the temporary nature of the TFWP, the cumulative period during which general low-wage temporary foreign workers will be allowed to remain in Canada will be reduced
·         Employers seeking to hire high-wage temporary foreign workers (with very limited exceptions) will be required to submit transition plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada.    

To improve the enforcement of the new rules, the government has vowed to:
·         increase the number and scope of inspections of workplaces for those participating in the TFWP
·         expand the TFWP tip line and create a complaints section
·         expand the blacklisting of employers who violate the TFWP or the terms of their previous LMIAs
·         increase fines of up to $100,000 for violations of the program. 

Similarly, participants under the IMP will be subject to the following changes:
·         employers of LMIA-exempt foreign nationals will be required to submit their job offers directly to CIC
·         employers will be asked to pay a $230 compliance fee per employer-specific work permit that is LMIA-exempt
·         a privilege fee of $100 will be required from every open work permit holder

Shortly after this announcement, the ESDC Minister Jason Kenney made not-so-subtle hints that the Live-in Caregiver Program (LCP) will be next in line for a possible major overhaul.  In his recent media interviews on this subject, Minister Kenney said that the LCP "has gone out of control" with insinuations that the program has become an alternative family reunification program.  The Canada Border Services Agency (CBSA) has likewise been issuing press releases about ongoing investigations of so-called "runaway nannies" who allegedly abandon their employers upon arrival.  

These media statements raise strong suspicions that the LCP will either be seriously reformed or even scrapped altogether.   If this is true, are those allegations as serious and widespread as they are made out to be?  If so, do they serve as fair and adequate basis to eliminate a program which has not only benefited its caregiver participants and their accompanying dependent families, but more importantly, the families of their employers whom these caregivers have dutifully served for all the years that the LCP has existed?

While it may be true that there are bad apples who may have abused the program, there is no reliable data to prove that they comprise a substantial enough number to lead to another major overhaul or even the scrapping of the program.  If the allegation that the LCP is becoming a family reunification program is true, this partly resulted from the bureaucratic inefficiencies in processing applications.  That is, the very long delays in issuing work visas  (can take up to a few years from the Manila visa office for instance), has discouraged many Canadian employers from hiring prospective caregivers from such countries.   Thus, many of the remaining prospective employers are the relatives who are willing to put up with the delay in exchange for ensuring that their children, elderly or disabled family members will be left in the care of people they completely trust, i.e. immediate or extended family members.  

Moreover, there is nothing in the law which prohibits the hiring of relatives under the LCP.   As long as the prospective caregiver and the prospective employer meet the qualifications and the job offer is made in good faith, their kinship should be an irrelevant factor. 

The issue of so-called runaway nannies is also another example of a few bad apples prejudicing the majority who abide by the rules.  If there are truly such cases, then the solution should focus more on fair and proper enforcement and not by simply assuming that the majority of the LCP participants are as unscrupulous as the few guilty ones. 

Thus, it is hoped that the anticipated reforms to the LCP will fully take into consideration the systemic issues which lie at the root of the problems within the program, rather than be another knee-jerk response to negative publicity.  If the program is scrapped, it should be replaced by something far more equitable and humane than the LCP in its current form.   

Live-in caregivers who have diligently served countless Canadian families and sacrificed so much in the process, deserve nothing less.  

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.   

Monday, 30 June 2014

Ongoing Challenges for Live-in Caregivers

Filipiniana News – June 2014
RHYME & REASON

Ongoing Challenges for Live-in Caregivers

(Note: The following are excerpts from a presentation given by the author at the Symposium on Intersections of Violence Against Women and Precarious Immigration Status held on 5 June 2014 at the University of Toronto.)

The Live-in Caregiver Program (LCP) is a hybrid immigration program within Canada's Immigration and Refugee Protection Act whereby a specific class of temporary foreign workers (live-in caregivers) is given the chance to apply for permanent resident status after fulfilling certain conditions. 

On its face, it may seem that live-in caregivers (LICs) are given a special privilege compared to other so-called "low skilled" temporary foreign workers (TFWs) who have no clear path to permanent residence.  However, it must be noted that the LCP is not a smooth sailing program as the conditions imposed on its caregiver participants render them extremely vulnerable to abuse and exploitation. 

The problematic conditions under the LCP include:
1.  The two-year full time, live-in caregiving work requirement - regardless of whatever label is given to this program, this requirement alone strongly encourages situations which are very much akin to indentured servitude or modern-day slavery.   In reality, LICs perform work that Canadians would rather avoid.  The work is extremely hard and the pay is extremely low, with very little monitoring, if at all, of employers' compliance with employment standards. 
2.  Employer-specific work permit - like the live-in requirement, the employer-specific work permit ties the caregiver to a single employer which further tilts the balance of power against the caregiver and in favor of the employer.   The requirement for a new LMO before being allowed to work for another employer (with its accompanying issues such as additional fees and processing delays), discourages LICs from leaving abusive employers or reporting them to the authorities.
3.  Processing delays for LMO applications, work permit changes/renewals, or the permanent residence (PR) application itself  not only discourage  the caregivers from leaving or reporting abusive employers, but also force them to endure prolonged and painful family separation.  
4.  The grant of PR status after completing 2 year LIC work within 4 years of arrival is not guaranteed.  Even after years of waiting, many live-in caregivers and their families may still end up being denied permanent residency due to criminal and/or medical issues, misrepresentation, unauthorized work, receipt of social assistance and other supposed contraventions of the immigration law and regulations. 

Since 2010, a few significant changes have been introduced to the LCP, which include:
1.  the removal of the second medical exam requirement for the LIC; 
2.  extension from 3 to 4 years within which to complete the 24-month full time live-in caregiving work requirement and  providing an alternative means to fulfill the required 24 months of full time live-in caregiving work, i.e. 3900 hours of work including up to 390 hours of overtime within a minimum of 22 months in the relevant 4-year period; and
3.  requirement for employers to pay recruitment, transportation costs and WSIB benefits and blacklisting of delinquent employers.  To date however, no LCP employer has been included in the blacklist.  This law has become tricky to enforce because most of the time, prospective caregivers are being asked to pay the recruitment and transportation fees by agents outside Canada hence beyond the reach of Canadian enforcement authorities or the courts.

Despite the fact that these changes have benefited many caregivers, there are still a whole lot of LCP participants who are encountering problems while being part of this program. 
For instance, a lot of LICs fall out of status either because of the long processing delays or eventual refusals of their work permit renewal or PR applications. 

The refusals may be due to the fact that:   the LIC  performed unauthorized work, committed misrepresentation;   failed to complete the 24 months of full time LIC work because of the long processing delays or serious illness;  was forced to accompany the employer hence forced to work outside Canada (however only work in Canada can count towards the 24-month requirement);  inadmissibility of family member (spouse and dependent children) e.g. dependent's illness will likely cause an excessive demand on Canadian health and/or social services; or even due to financial inadmissibility because the LIC is bringing in family members but with no substantial savings or well-paying job to prove ability to support family which leads to a strong possibility of relying on social welfare. 

Many of these reasons for  refusal could have been avoided if the LICs are granted permanent residence at the outset after they and their family members are screened as is normally done for most other categories of PR applications. 

The LCP is clearly discriminatory in that the two-year, employer-specific, full time live-in caregiving requirement not only encourages abuse and exploitation but also prevents those LICs with inadmissible family members from obtaining permanent residence.  In my view, this is tantamount to cruel and unfair treatment of these workers who undoubtedly contribute so much to the well-being of many middle class and wealthy Canadian families with children, elderly or disabled members.  

Despite the changes that have been introduced to this program, the LCP is still causing great hardship to many of its participants and their families.  Thus, there is a strong need for continuing advocacy efforts that will push for more meaningful reforms that will truly alleviate the sufferings of LCP participants and lead to a more just and humane treatment of these vulnerable workers.

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.   

Saturday, 31 May 2014

New Quotas and Eligible Occupations for Permanent Residence Applications

Filipiniana News – May 2014
RHYME & REASON

New Quotas and Eligible Occupations for Permanent Residence Applications 

Last month, I wrote about Citizenship and Immigration Canada's (CIC) much-touted Express Entry system.  In preparation for its implementation in January 2015, CIC started accepting applications on 1 May 2014 under the new quotas and a new list of eligible occupations for the the Federal Skilled Worker Program (FSWP), Federal Skilled Trades Program (FSTP) categories. 
It was announced that effective 1 May 2014, there is a new quota of 25,000 applications under the FSWP,  5,000 applications under the FSTP and 8,000 applications under the Canadian Experience Class (CEC) 

In addition to these overall quotas under the FSWP, there will be a limit of 1,000 applications to be accepted under each eligible occupation, 500 applications under the PhD stream but no limit for applications with valid arranged employment from a Canadian employer.

The list of eligible occupations under the FSWP has been increased from 24 to the following 50 occupations (with the NOC codes):
    1. Senior managers – financial, communications and other business services (0013)
    2. Senior managers - trade, broadcasting and other services, n.e.c. (0015)
    3. Financial managers (0111)
    4. Human resources managers (0112)
    5. Purchasing managers (0113)
    6. Insurance, real estate and financial brokerage managers (0121)
    7. Managers in health care (0311)
    8. Construction managers (0711)
    9. Home building and renovation managers (0712)
    10. Managers in natural resources production and fishing (0811)
    11. Manufacturing managers (0911)
    12. Financial auditors and accountants (1111)
    13. Financial and investment analysts (1112)
    14. Securities agents, investment dealers and brokers (1113)
    15. Other financial officers (1114)
    16. Professional occupations in advertising, marketing and public relations (1123)
    17. Supervisors, finance and insurance office workers (1212)
    18. Property administrators (1224)
    19. Geoscientists and oceanographers (2113)
    20. Civil engineers (2131)
    21. Mechanical engineers (2132)
    22. Electrical and electronics engineers (2133)
    23. Petroleum engineers (2145)
    24. Information systems analysts and consultants (2171)
    25. Database analysts and data administrators (2172)
    26. Software engineers and designers (2173)
    27. Computer programmers and interactive media developers (2174)
    28. Mechanical engineering technologists and technicians (2232)
    29. Construction estimators (2234)
    30. Electrical and electronics engineering technologists and technicians (2241)
    31. Industrial instrument technicians and mechanics (2243)
    32. Inspectors in public and environmental health and occupational health and safety (2263)
    33. Computer network technicians (2281)
    34. Nursing co-ordinators and supervisors (3011)
    35. Registered nurses and registered psychiatric nurses (3012)
    36. Specialist physicians (3111)
    37. General practitioners and family physicians (3112)
    38. Dietitians and nutritionists (3132)
    39. Audiologists and speech-language pathologists (3141)
    40. Physiotherapists (3142)
    41. Occupational therapists (3143)
    42. Respiratory therapists, clinical perfusionists and cardiopulmonary technologists (3214)
    43. Medical radiation technologists (3215)
    44. Medical sonographers (3216)
    45. Licensed practical nurses (3233)
    46. Paramedical occupations (3234)
    47. University professors and lecturers (4011)
    48. Psychologists (4151)
    49. Early childhood educators and assistants (4214)
    50. Translators, terminologists and interpreters (5125)
Under the FSTP, all 90 skilled trades occupations classified under NOC B will be eligible to apply but with a limit of 100 applications per eligible occupation:  
    • Major Group 72:  Industrial, electrical and construction trades
    • Major Group 73: Maintenance and equipment operation trades
    • Major Group 82: Supervisors and technical occupations in national resources, agriculture and related production
    • Major Group 92: Processing, manufacturing and utilities supervisors and central control operators
    • Minor Group 632: chefs and cooks
    • Minor Group 633: butchers and bakers.                                                                                        
For CEC applications, there are no sub-caps for NOC O and A occupations while there is a limit of 200 applications for each of the NOC B occupations.  The following six occupations will continue to be ineligible under the CEC class:  administrative officers (NOC code 1221), administrative assistants (1241), accounting technicians/bookkeepers (1311), cooks (6322), food service supervisors (6311), and retail sales supervisors (6211).

According to CIC, these will be the last batch of applications under the FSWP, FSTP and CEC categories that will be accepted prior to the implementation of the Express Entry system.  It is unclear what this exactly means for applications that will be submitted on 1 January 2015 and onwards.  For instance, will applications under the eligible occupations where quotas are yet unfilled, continue to be accepted until 30 April 2015?  Will the PhD stream also be eliminated?  Will the points system and current eligibility factors still be relevant?  Will the CEC class and other programs be scrapped?  As usual, many aspects remain eerily uncertain in this ever changing Canadian immigration landscape.    

The author is a Filipino-Canadian immigration lawyer and may be reached at deanna@santoslaw.ca or tel.  no. 416-901-8497.