Sunday, 31 March 2019

Interim Pathway for Caregivers


Filipiniana News –  March 2019
By Maria Deanna P. Santos

There was a lot of rejoicing in the caregiver community on 23 February 2019 when the Immigration Minister Ahmed Hussen launched at a news conference, some major changes to the existing caregiver programs. 

The first major change is about the new caregiver permanent residence pilot programs that will replace the current pilot caregiver pathways when these expire on 29 November 2019.  According to IRCC, the new caregiver pilot programs will have the following features: 
a) the caregivers will be assessed for permanent residence before they come to Canada; 
b) the caregivers will be issued occupation-specific (instead of employer-specific) work permits that will allow them to change employers without need to obtain new work permits; 
c) the caregivers’ spouses will be granted open work permits and their dependent children will be issued study permits; 
d) upon completion of two years of work experience, the caregiver (and their dependent family members) “will have access to a direct pathway” for permanent residence in Canada.  

No further details have been provided for these new caregiver pilot programs other than that they will be announced soon and before the November 2019 expiry of the current pilot programs.

Meanwhile, the second major change introduced is the Interim Pathway for Caregivers (IPC) that will be open to new applications for a three-month period only -  from 4 March 2019 to 4 June 2019.   This program is meant to provide a permanent residence option for those who, “in good faith, have come to Canada and are providing care to Canadians, without a clear pathway to permanent residence,” according to IRCC. 

More specifically, the IPC will authorize the grant of permanent residence to caregivers who will be able to meet the following criteria:
a) completion of at least one year of full time authorized work as a caregiver (for children or for people with high medical needs or a combination of these jobs) since 30 November 2014;
b) completion of education that is equivalent to a Canadian high school diploma (foreign credentials must be accompanied by a valid education credential assessment);
c)  completion of an official English language test with a minimum score equivalent to CLB 5;
d)  at the time of PR application, hold a valid work permit, on implied status or eligible for restoration, other than those who are holding a live-in caregiver program work permit. 

The IPC is indeed a welcome development for many caregivers who will be unable to meet the two years of full  time work required under the present caregiver pathways before they expire in November 2019 but who have completed at least one year of combined work in any of the qualified caregiving occupations.   It also allows those who are unable to meet the equivalent of at least a one year post secondary education credential but only have the equivalent of at least a Canadian high school diploma, among others.  

Furthermore, as in the old live-in caregiver program (LCP), the caregiver may submit an application for an open work permit that will allow the applicant to work for any employer in Canada while the IPC permanent residence application is in process.  This concurrent open work permit application option was removed under the present caregiver pathways and was replaced by the more restrictive bridging open work permit (BOWP) which can only be applied for after the IRCC issues an acknowledgment of receipt of the PR application and if the caregiver’s last work permit is expiring in four months or less.   Sadly, not all caregivers had been able to meet the BOWP requirements for various reasons that are often beyond their control.   

A further accommodation provided by IRCC under the IPC program is that of accepting evidence that the caregiver applicant has applied for an education credential assessment and/or scheduled to take an official English language test, if these documents will not be received by 4 June 2019. 

Although the IRCC is granting some flexibility in some aspects of the application, the very short window of opportunity for those who intend to apply under the IPC makes it extremely important that the permanent residence application is done correctly.  If the application is incomplete and is returned after the IPC ends on 4 June 2019, then the caregiver applicant would have lost a very rare opportunity.  Any future PR application will then have to meet requirements under the new caregiver pilots (details of which are still unknown) or be based on other less guaranteed and highly-discretionary options.     

As can be gleaned from the requirements listed above, the IPC still excludes the following: 
a) those who were authorized to work under the live-in caregiver program; 
b) those who have lost their temporary foreign worker status and are not anymore eligible for restoration of their temporary resident status in Canada; 
c) those who intend to reside in Quebec; and  d) those who are inadmissible to Canada.

Thus, the IPC clearly has its limitations, which would still leave a lot of caregivers unable to qualify for permanent residence for various reasons such as the following typical scenarios:  a) if they will be unable to complete at least a year of qualified caregiving work before 4 June 2019; 
b)  if they have lost temporary foreign worker status due to their inability to provide a valid labour market impact assessment required to renew a work permit even if the caregiver will continue to work for the same employer;  c) if they are unable to meet the language and education requirements; or  d) if the caregiver and/or a family member is found to be inadmissible at the permanent residence application stage and after having completed the required caregiving work on valid work permits.

For those who would be unable to qualify under any of the existing permanent residence pathways for caregivers, i.e. the live-in caregiver program, the caregiver for children pathway, the caregiver for people with high medical needs pathway or the interim pathway for caregivers, one alternative option might be to apply for or request consideration on humanitarian and compassionate grounds.  However, this type of application is highly discretionary and has its own legal requirements and implications based on the applicant’s particular circumstances.  

While this recent news may appear to be a boon for many caregivers, there are still many others who will be excluded.  Hence the advocacy for the rights and welfare of vulnerable migrant workers, including  caregivers, must continue. 

This article is meant for information purposes only and not as specific legal advice.  Each case is unique and is best discussed in detail with a qualified, experienced and trusted immigration legal advisor to increase the chances of success.

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

Thursday, 28 February 2019

How to Choose the Right Legal Representative


Filipiniana News –  February 2019
By Maria Deanna P. Santos

For this month, I would like to take a break from the usual immigration law updates that I had been writing about in previous articles.  Instead, please allow me to provide some practical tips in finding the right legal representative and help ease the work relationship on both sides.

As in most everything else, achieving a good and satisfying relationship involves a two-way process.   The same applies in choosing and eventually working with a lawyer or other legal representative.  If you are thinking of consulting with or retaining a lawyer’s services, I hope that the suggestions and guidelines below will help make the experience a positive and productive one.  Since I obviously cannot speak for all lawyers or legal representatives, the suggestions below are mainly based on my own limited experience.

First of all, your choice of a legal representative should not be driven solely by financial considerations.  That is, do not choose a lawyer  or other legal representative solely because he or she charges the lowest fees.  Conversely, the fact that a lawyer or other representative charges the highest rate does not necessarily translate into the best  services.  As clients, we need to understand that legal or professional fees are driven by various considerations.  These include, the legal representative’s training and specialization, the complexity of legal issues involved, the estimated amount of time that the case/file will take, the volume of cases or transactions already being handled, the location and cost of overhead expenses, the potential risks and amount of work involved, the client’s means and ability to pay, etc..   One possible way to assess whether the cost is reasonable is to determine the representative's knowledge and direct experience in the issue/s at hand as well as to verify the range of services covered, the approximate cost of disbursements, and terms of payment.

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

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

It is also important for you to ensure that the lawyer or other legal representative is a member in good standing with the relevant regulatory body.  This means, for example, membership in good standing with the Law Society of Ontario  (LSO)  or with the current regulatory body for immigration consultants.   These regulatory bodies have mechanisms in place to allow wronged clients to file complaints against the lawyer or legal representative.  Although the systems in place are not perfect, they are meant to protect the public against unscrupulous practices and unprofessional services.   While this may entail some research or investigation on your part, it is well worth the effort and will prove invaluable in the long run. 

To ensure that all relevant matters are considered and attended to promptly, you have to provide all the required documentation and ensure that you have disclosed all pertinent information.  If you are unsure which information is relevant to your legal matter, feel free to ask.   It is always better to provide all relevant information earlier rather than disclose them at a much later stage when potentially more time and money will be needed to adjust the legal strategy or remedy being pursued.  Moreover, if you will retain the services of a lawyer, the principle of lawyer-client privilege is an added assurance that all client information are treated with utmost confidentiality.

As in everything else, treat your lawyer or legal representative and their office staff with honesty, respect and candor.  Although you are a client and are paying for the legal services provided, this does not give you the license to make unreasonable demands or to use their services to unjustifiably make life difficult for others.  The law is not meant to be an instrument for revenge or as a shield for wrongdoing.   Negative stereotypes about the law and lawyers may say otherwise but it's about time that this bad reputation (whether justified or not) is changed.

However, it is not only up to the lawyers and legal representatives themselves to effect this change.   If clients will refuse to work with those who encourage unethical practices or any other type of wrongdoing, then hopefully, these unscrupulous practices will cease.   In the process, we are also ensuring that the law is being used as it should be:  to uphold truth and justice instead of otherwise.

After all, upholding truth and justice is not just the lawyers' but everyone else’s responsibility.

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

Thursday, 31 January 2019

Canadian Immigration Updates for 2019

Filipiniana News –  January 2019
By Maria Deanna P. Santos

Reopening of Interest to Sponsor Form for Parents/Grandparents

Instead of the previously anticipated early January 2019 launch, the Immigration, Refugees and Citizenship Canada (IRCC) announced that the reopening of the parent/grandparent sponsorship program will occur at noon (EST) on 28 January 2019.   

As in the previous years, prospective sponsors may express their interest to sponsor their parents and grandparents by accessing the online form and providing the required basic personal information including dates of birth, contact information and immigration status in Canada.   The sponsor will also need to upload a copy of their status-in-Canada document and must ensure that they meet the minimum necessary income requirement to sponsor.   IRCC will close the online interest to sponsor form after a specified number of confirmed interest to sponsor forms are received.

Unlike in previous years when those invited to apply were drawn by lottery, the IRCC will issue the invitations this year on a first come, first served basis, until the cap of 20,000 applications is reached.  If the prospective sponsor receives a confirmation number after completing an interest to sponsor form but was not invited to apply, their confirmation number will be kept for consideration in the following year.  Submitting multiple forms will not help increase the sponsor’s chances as duplicate entries will be deleted.

Once invited, the prospective sponsors will have 60 days within which to submit the complete sponsorship and permanent residence application package to IRCC. 

Although the new online system might sound simple and straightforward, possible issues may still arise if the interest to sponsor forms are not properly completed and/or will later conflict with the submitted sponsorship application package.  It is thus very important that the initial interest to sponsor form is done correctly to avoid unnecessary complications later, or even a disappointing refusal.

Biometrics Requirement Expanded

For Canadian immigration purposes, "biometrics" refers to the electronic fingerprints and facial photo collected from visa applicants to help "maintain the integrity of the system" and  "ensure the safety and security of Canadians."  

In 2013, Canada began requiring biometrics from temporary resident visa applicants (visitor, student or worker) from 29 countries and one territory.   On 31 July 2018, the requirement was expanded to include applicants from Europe, the Middle East and Africa. 

Starting 31 December 2018, the biometrics requirement had also been imposed on applicants from  Asia, Asia Pacific and the Americas, when applying for a visitor visa, study or work permit.  

Most applicants will need to go to a visa application centre (VAC) in person to provide their biometrics before being granted a visa to enter Canada.  

According to IRCC,  "Having biometrics makes it easier for immigration and border services officers to stop individuals who pose a risk to the safety and security of Canadians.  It also helps officials verify travellers' identities, makes processing applications easier and simplifies entry for legitimate travellers." 

To help ease the burden on frequent travelers, temporary resident visa applicants (to visit, work or study) will only need to give their biometrics once every ten years.  

The IRCC is also working with the Privacy Commissioner of Canada to ensure  the protection of biometrics and other personal information which are collected from the visa applicants.  

Excessive Demand Threshold Increased

Meanwhile, a recent significant change in Canada's immigration policy which took effect on 1 June 2018 is expected to benefit even more prospective immigrants this year.  This change had been a boon to many prospective immigrants who were likely to have been refused in the past if they or their dependents have a medical condition which may potentially cause an excessive demand on Canada's health and social services. 

The tripling of the annual cost threshold and removal of certain social services (such as special education, rehabilitation and vocational services) from the computation have led to more inclusive and fair decisions in recent permanent residence applications.   That is, minor disabilities or chronic medical conditions which may have led in the past to a finding of medical inadmissibility due to excessive demand, are now being granted permanent residence to Canada. 

Since the annual cost threshold increases every year, it is expected that even more applicants will benefit from this more generous assessment of medical admissibility in Canadian immigration law and policy.   Starting 2019, the annual cost threshold for determining whether a permanent residence applicant will cause an excessive demand on health and social services had been increased to $20,517 per year (or three times the new average Canadian per capita health and social services cost of $6,839).  Last year's annual cost threshold was $19,812 (or 3 times the 2018 per capita cost of $6,604). 

Like the PGP sponsorship process, this positive development should not lead to complacency from permanent residence applicants who may be affected due to potential medical issues.  With the now more generous medical admissibility policy, applicants should not be misled into thinking that fulsome submissions are not anymore needed in responding to procedural fairness letters (PFLs).  Since immigration applications are subject to a high level of discretion and subjectivity,  it is still important to ensure that submissions are adequately and properly documented to avoid a refusal or at least have a good foundation for judicial review.

As always, the above are meant for information purposes only and not as specific legal advice.  Each case is unique and is best discussed in detail with a qualified, experienced and trusted immigration legal counsel to increase the chances of success.

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

Friday, 28 December 2018

PGP Sponsorships Soon to Reopen


Filipiniana News –  December 2018
By Maria Deanna P. Santos

In January 2019, Immigration, Refugees and Citizenship Canada (IRCC) is expected to relaunch the online form where permanent residents and Canadian citizens can express interest to sponsor parents or grandparents (PGP) for permanent residence under the family class.  The old lottery system for PGP sponsorships had been eliminated and will be replaced by a first-come, first served system.  That is, IRCC will issue invitations to apply to those who have submitted their intent to sponsor based on the order that they were received, until the new annual quota of 20,000 applications had been reached. 

The detailed guidelines for the revised PGP sponsorship application process have not been issued by IRCC as of this writing.  Nonetheless, it is expected that as in the current system, the sponsors who have been invited to sponsor their parents or grandparents will be given 60 days within which to submit the complete sponsorship and permanent residence application packages to IRCC.  

This change is a welcome departure from the old lottery system where prospective sponsors face the frustration and uncertainty of waiting year after year to be invited to apply, if they are not fortunate enough to be have been picked in previous lotteries.

Meanwhile, the increased quota of 20,000 for 2019 is a four-fold increase from the time that the PGP sponsorship program was reopened in 2014 with an annual intake limit of only 5,000.   The annual quota was increased to 10,000 in 2016, then to 17,000 in 2018.

When the PGP sponsorship program was reopened but prior to the introduction of the lottery system, the quotas were usually met in a matter of days (i.e. the first few days of January).  Thus, many applicants would even hire couriers to queue outside the CPC Mississauga office to be able to submit their complete sponsorship and permanent residence application packages for their parents or grandparents in a desperate effort to make the cut.   

When the lottery system was introduced in 2016, other types of problems arose.  For instance, even though IRCC initially invited 10,000 prospective sponsors, only a handful were able to submit the complete sponsorship application packages within the specified timeline (90 days which was later reduced to 60 days).  Of those who submitted, many prospective sponsors failed to meet the minimum necessary income to qualify.  Thus, IRCC had to pick further batches from the lottery pool who were invited to sponsor their parents or grandparents.     

Hence, the introduction of further changes by IRCC to the 2019 reopening of the PGP sponsorship program.
 
The new PGP sponsorship system is expected to begin in early January 2019.  As in the past years, the IRCC will reopen the parent-grandparent sponsorship program by allowing prospective sponsors to fill up an online form for this purpose.  Completion of this form is not equivalent to an application but is only an expression of interest to sponsor and will form part of the pool of prospective applicants.

Unlike in the previous years however, where one's fate was left to chance, the timing of the invitation will now depend on when the sponsor completed the online form and how many applications IRCC is able to process at a time until it reaches the annual quota of 20,000. 

According to IRCC, the increased quota is due to the continuing high demand for PGP sponsorships as well as the significantly reduced inventory in this class of applications which has "dropped from a peak of 167,000 people in 2011, to just under 26,000 people in June 2018."

It must also be noted that while those who will complete the form will be invited on a first come, first served basis, the sponsors or applicants who fail to qualify can still be refused or their applications returned. 

Therefore, when completing the online form, the sponsor must provide complete and accurate information to avoid problems such as the possibility of being charged with misrepresentation.   In early 2018, the online interest-to-sponsor form asked for detailed information, including the names, dates of birth, family size and incomes of prospective sponsors for the past three taxation years.  This was meant to weed out prospective sponsors who are not qualified to sponsor due to lack of the minimum necessary income. 

IRCC also clarified that one can only sponsor his/her own parents and grandparents.  An invitation to apply received from IRCC cannot be used to sponsor the spouse' parents or grandparents.   If one is a co-signer in his/her in-law’s PR application, it is the spouse or partner who must have received an invitation to apply as a sponsor.  

Overall, the new system appears more fair than the lottery system for PGP sponsorships imposed in the past years.   However, it remains to be seen whether this will improve the current processing times and/or allow more sponsors to be reunited with their parents and grandparents at the soonest possible time. 

The increased income requirement for sponsors and the higher likelihood that elderly relatives are deemed medically inadmissible due to a potential to cause an excessive demand on Canadian health and social services, still prove to be the biggest stumbling blocks for family reunification under the PGP sponsorship program.  

Thus, if the Canadian government is truly serious about family reunification without any form of discrimination, the income and medical screening requirements must be reconsidered, if not totally eliminated.   After all, empirical studies have shown that the positive impact of family support and unity go far beyond arbitrary economic indicators.  The presence of parents and grandparents benefit families and societies in valuable but often intangible ways, such as wisdom gained from life experiences, among others.  Thus, the Canadian government has to do a lot more to become truly inclusive and welcoming, especially for the elderly members of immigrant families. 

Meanwhile, here’s wishing everyone – children, parents and grandparents - a wonderful Christmas/holiday season and a blessed new year!

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