Sunday, 31 December 2017

IRCC Vows to Clear LCP Backlog


Filipiniana News  -  December 2017

IRCC Vows to Clear LCP Backlog 
 
On 3 December 2017, the Minister of Immigration, Refugees and Citizenship Canada (IRCC) Ahmed Hussen, announced at a press conference in Toronto that the IRCC will be:
  • Finalizing at least 80% of the cases that were in the Live-in Caregiver Program (LCP) inventory as of October 1, 2017 by the end of 2018;
  • Processing 80% of new, complete LCP applications submitted on or after October 1, 2017 within 12 months; and
  • Admitting high numbers of LCP caregivers and their family members as permanent residents until the remaining cases are processed.
These measures are being taken to address the notoriously long processing times for permanent residence applications under the LCP which have resulted in many years of physical separation between LCP participants and their families.  

Aside from addressing the backlog, Minister Hussen also said that the long promised  removal of the $1,000 LMIA application processing fee paid by those wishing to hire caregivers for people with high medical needs will be implemented very soon. The same fee exemption will also be granted to those wishing to hire caregivers for children whose annual household income is less than $150,000. 

While these efforts are commendable, they still failed to address the issues relating to the ongoing vulnerability of caregivers due to the employer-specific nature of their work permits and their conditional status (i.e. the requirement to complete at least two years of full time caregiving work before qualifying to apply for permanent residency, among others). 

Moreover, after the LCP's cancellation in 2014 and with the expiration of the Ministerial Instructions that created the two Caregiver Pathways (Caring for Children Class and Caring for People with High Medical Needs Class) in 2019, it remains unclear whether caregiver work permit holders would still be qualified for permanent residence in the future or will end up as 'disposable' temporary workers who will never qualify for full membership in Canadian society.   To paraphrase the slogan of caregiver activists:  if they are good enough to work, shouldn't they be good enough to stay? 

We also hope that expediency will not trump fairness in that the efforts to get rid of the backlog will hopefully not result in quick refusals for those whose applications are not so straightforward and will need further consideration on humanitarian and compassionate grounds. 

We trust that the recent announcement will just be one of the many significant changes that will be introduced towards alleviating the sufferings of caregivers who are initially admitted to Canada as temporary workers yet whose contributions to Canadian families have been invaluable.

Below are some excerpts from Minister Hussen's delivered speech at the press conference, as published in the IRCC website:

"As of October 2017, we reduced the backlog in the former Live-in Caregiver Program to about 23,000. This is a significant progress, because in May 2014, the backlog reached a high of 62,000, so we've reduced it to 23,000 people. We accomplished this by implementing efficiencies such as dedicating additional resources specifically to reduce this backlog. And I'm happy to report that we are now on track to reach 5,000 more applications and making final decisions than originally planned for 2017.

We have also added a new communications protocol where we contact caregivers and their family members to help ensure that their applications are complete. This allows us to process applications even faster.  Also, as you know, in our new multi-year immigration levels plan, we will also continue to admit high numbers of permanent residents under the old Live-In Caregiver Program until all the remaining cases are closed. Under the levels planned, we plan to admit as many as 20,000 caregivers as permanent residents, which would double the average admissions of about 10,000 between 2005 and 2014. So we're doubling the numbers of intake so that we can reduce and eliminate the backlog in the old Caregivers program.
...
While we have made good progress at reducing the backlog, we recognize that we must do more to reunite caregivers and their families even more quickly. So under our government's plan, we will largely eliminate this backlog within a year. This means that caregivers will be able to reunite with their families even faster. Therefore, I'm happy to tell you all today that we will finalize 80 percent of all the cases in the caregiver inventory by the end of 2018.
Under our government's plan, we will also commit to finalizing 80 percent of all new and complete applications submitted on or after October 1, 2017, within a year. The government has heard caregivers' concerns and, while many live-in caregiver applicants have faced long delays in family separation, they can rest assured that they will soon receive a decision on their application.
...While the government is committed to supporting caregivers, we also wish to provide better support to the parents and families who need them.
That is why, as part of Budget 2017, we will maintain our commitment to eliminate the $1,000 labour market impact assessment fee for most Canadian families who need a caregiver. As proposed in Budget 2017, this fee would be eliminated for all families in need of a caregiver or a person with high medical needs. This fee will also be eliminated for families who need a caregiver for children with a household income of less than $150,000. Further developments are expected on these two measures very soon."

For now, the above sounds like wonderful news for caregivers under the LCP who have recently been or will soon be granted their long-awaited PR status and finally reunited in Canada with their families.  A well-deserved reward for these unsung modern heroes. 

Here's wishing you all a blessed Christmas, happy holiday season and wonderful new year!
 
The author is an immigration lawyer in Canada and may be reached at deanna@santoslaw.ca or tel. no. 416-901-8497. 

Thursday, 30 November 2017

Immigration Appeals


Filipiniana News – November 2017

Immigration Appeals

The first question that is often asked by someone who had just received an immigration application refusal is: can we file an appeal?   Many are surprised or disappointed to learn that the answer is not a simple yes or no.    

First, an appeal in the immigration context has a specific technical meaning.  It is a right generally given only to permanent residents (PR) and which can be brought before the Immigration Appeal Division of the Immigration and Refugee Board (IRB) in specified cases.   These include family sponsorship refusals, non-fulfilment of residency obligation  and issuance of removal orders.  The only exception to the PR requirement is in the case of failed refugee claimants who may file an appeal with the Refugee Appeal Division of the IRB.   

In most other instances, a negative immigration decision may be elevated to the Federal Court via an application for leave and judicial review. 

In a sense, a Federal Court judicial review application may be considered as a form of appeal in that it gives a further chance to be heard by another decision maker.   Under Canadian immigration law however, an appeal is distinct from a  judicial review application as  these two legal remedies have specific purposes, requirements and limitations.  

Among other differences, an  immigration appeal is filed with an administrative body (the Immigration Appeal Division of the IRB) while an application for leave and judicial review is filed with a judicial body.  Since immigration laws are under Federal jurisdiction, the applicable judicial body is the Federal Court of Canada.   

On the one hand, an appeal is a trial de novo (or a trial "anew"), thus allowing the appellant to present both new and previously submitted evidence in support of the appellant's case.   The decision maker in an appeal (who is a tribunal board member and not a judge) can substitute its decision over that of the originating decision-maker.    

In a judicial review on the other hand, a Federal Court judge can only determine whether or not the decision of the visa officer or administrative decision-maker was reasonable and 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 directly intervening with an immigration process is via the filing of a motion to stay a removal order which, if granted, prevents the removal of the applicant pending the final decision on the underlying application for leave and judicial review.  However,  the final decision on the immigration application still rests with the administrative officer or tribunal.   

A stay motion filed with the Federal Court involves specific procedures and strict deadlines.  Aside from the notice of application for leave and judicial review, the applicant must submit a motion record which ideally consists of  properly indexed, paged and bound compilation of facts (presented through affidavits), supporting documents, legal arguments and a book of authorities. 

In many cases, preparing for a stay motion requires an enormous amount of physical and mental energy for all the legal research and analysis to be done within often very tight timelines.   A copy of the record needs to be served on the Department of Justice (DOJ) before copies are filed with the Federal Court registry with proof of service on the DOJ.  The matter must then be orally argued before a Federal Court judge on motions day (or any other day with leave of court).  After all of these steps have been taken, the judge will decide whether or not to stay the removal order, that is, allow the applicant to remain in Canada in the meantime.   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 waiting for a flight back to the home country.    

Apart from the stay motion, the application for leave and judicial review is where the serious legal and/or factual issues are actually decided upon by the Federal Court judge.  This requires the submission of a complete application record that is reviewed by a judge who will then decide whether leave will be granted.   If leave is not granted, the judicial review will not proceed.  If leave is granted, the matter is scheduled for an oral hearing before another Federal Court judge.  

Although lawyers can come up with creative legal arguments in most cases, a judicial review application will often be weak if the foundation or the originating case itself is weak.   In a judicial review application, the evidence is limited to those that were previously submitted  to the administrative officer in the decision under review. It is not an “appeal” after all, but a “review” of the administrative decision by a judicial court.   Hence, winning at the Federal Court will be a tough battle if the originating application is weak, unless there are clearly serious procedural and substantive administrative errors committed by the administrative decision-maker. 

Thus, if a lawyer is initially 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 at the earlier stages of the immigration application. 

It is also important to note that some immigration refusals can still be reconsidered.   In some cases, a reapplication might even be a quicker and more cost-effective solution than pursuing an appeal or judicial review.   Thus, when discussing your legal remedies with a lawyer, it is important to canvass the various options and their implications rather than assuming at the outset that an appeal or judicial review is the only way to proceed.  After all, lawyers are not just litigators, but also advocates and problem solvers.   

This article is meant for legal information purposes only and not intended to provide specific legal advice.  You should consult a legal professional to discuss your particular circumstances.

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

Tuesday, 31 October 2017

PR Card Renewal Issues


Filipiniana News – October 2017

PR Card Renewal Issues

After having gone through hoops to obtain their much-coveted status in Canada, many immigrants sadly remain ill-informed on some important issues relating to their status, including the renewal of permanent resident (PR) cards.  

For instance, permanent residents who are planning to travel outside Canada but whose PR cards are about to expire are not always aware that the PR card renewal processing times can be lengthy, and must therefore be planned for well in advance.  

The longer processing times for PR card renewals had been partly attributed to stricter scrutiny being conducted by Immigration, Refugees and Citizenship Canada  (IRCC) of the applicant's compliance with PR residency requirements.  The prevalence of applications with fraudulent residency claims have unfortunately prejudiced everybody else, even those not guilty of similar activity.   

While CIC (now IRCC) used to process PR card renewal applications urgently if submitted at least three weeks in advance and with confirmed plane tickets, this is not the case anymore.  IRCC had recently  imposed stricter guidelines on who may qualify for urgent processing of PR cards.  The IRCC website states that to qualify for urgent processing, the PR applicant must show that the PR card is needed within the next three months for one of these reasons:
·         a job opportunity or work related to the PR's current job
·         the PR's own serious illness or that of a family member
·         the death of the PR's family member

Even if one qualifies under any of the above reasons, IRCC cannot guarantee that the application will be processed urgently or that the new PR card will be issued on time.  The following documents are also required for urgent processing:
·         plane ticket or itinerary showing the destination and dates of travel
·         proof of payment for travel showing the date, full amount and method of payment
·         letter explaining the reason for the urgency and
·         proof of urgency (i.e. a doctor’s note, death certificate, letter from employer, etc.

If the urgent processing request is not granted for any reason, and the PR needs to leave immediately, the PR still has the option of applying for a permanent resident travel document (PRTD) from a visa office outside Canada.   Like the PR card renewal application however,  this application may be subject to processing delays hence there is no guarantee when a PR will receive a PRTD that will authorize reentry to Canada.   Neither is there any guarantee that a PR card renewal or a PRTD application will be granted.

When PR cards were created under the Immigration and Refugee Protection Act (IRPA), many erroneously thought that as long as they possess valid PR cards, their status as permanent residents will be safe (not true).  Conversely, some are surprised to learn that the lack of a valid PR card will not negate one’s PR status.  In fact, PRs who do not travel outside Canada do not need to have valid PR cards and can apply for Canadian citizenship even with an expired PR card upon completing the citizenship requirements.

The present law requires permanent residents to meet the residency obligation of two years (or 730 days) within every five-year period to maintain their PR status.   However, some fail to realize that the two-year within every five-year period residency requirement to maintain PR status is a rolling requirement, i.e. the five-year period refers to the five years from the date of entry, hence it changes every time a PR reenters Canada.   Moreover, the residency requirement only becomes subject of scrutiny if one reenters Canada,  applies for a PR card renewal or for a PRTD. 

Under the current version of Canada's immigration law (IRPA), the residency obligation may be satisfied in any of the following ways:
·         actual physical presence in Canada; 
·         if outside Canada accompanying a Canadian citizen spouse or common-law partner or is a child accompanying a parent; 
·         if outside Canada and employed full-time by a Canadian  business or in the public service of Canada or a province; and 
·         if an accompanying spouse, common-law partner or child of a permanent resident who is employed full-time by a Canadian business or is in the public service of Canada or a province.

The burden of proving that one has satisfied the residency requirement, falls on the PR applicant.   Therefore, if there is no adequate evidence provided to support one’s residency claim, this could result in longer processing delays (as further investigation and/or more documentation will be required) or worse, a refusal of the application and subsequent revocation of one’s PR status.  The revocation of PR status can be appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board.   Aside from questions of law and possible denial of natural justice, the IAD also has jurisdiction to consider humanitarian and compassionate grounds in light of all the circumstances of the case.  However, the chances of succeeding on appeal will depend on the evidence presented and the presiding board member’s weighing of all factors involved.   

A situation or action that could spell doom for one’s permanent resident status, PR card renewal or PRTD,  is misrepresentation.  If it turns out that there was any misrepresentation of a material fact made in one’s application for a PR card, PRTD  or in the PR application itself, this can be used as a ground to initiate admissibility proceedings and may eventually lead to removal from Canada.  Some common examples of misrepresentation involve falsified residence or travel history, undisclosed marital status or criminal records. 

Awareness of these issues may also serve as a reminder that permanent residence in Canada is not as permanent as some might think.  Clearly, the Canadian government may take steps to revoke one’s permanent residency whenever certain conditions are not met or based on relevant legal or public policy considerations. 

As in most aspects of life, prevention is better than cure. 

This article is meant for legal information purposes only and not intended to provide specific legal advice.  You should consult a legal professional to discuss your particular circumstances.

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

Saturday, 30 September 2017

Latest Immigration Updates


Filipiniana News  -  September 2017
  
Latest Immigration Updates

Summarized below are a few more changes which have recently been implemented by Immigration, Refugees and Citizenship Canada (IRCC) that may be of interest to those who have pending applications or are planning to submit one for themselves or their family members. 

Parent-Grandparent Sponsorship Applications

Since  IRCC did not receive 10,000 complete applications by 4 August 2017, it has decided to issue a second round of invitations to potential sponsors for permanent residence applications of their parents or grandparents.    Please note however that these additional invitations will be taken from the same randomized list that was opened early this year.  Hence, if you did not register in that list, then you will not be invited at this most recent round. 

The new potential sponsors will receive an email inviting them to submit an application to sponsor their parents and grandparents and will have until 8 December 2017 to submit their complete sponsorship applications to IRCC.  Sponsors who were invited in the first round, but did not submit applications, will not have another chance to apply in 2017.  

If they did not receive an email, potential sponsors can also confirm whether or not they have been selected by looking up their unique confirmation number to compare it with the list of numbers that were randomly selected.  If you are not sure what your unique confirmation number is, you can complete the web form for this purpose at the IRCC webste and you will receive a response within 10 business days to confirm whether or not you have been invited. 

Those who were not invited to submit applications in 2017 will be given the opportunity to express their interest once again in sponsoring their parents and grandparents when the program reopens in early 2018.

Global Skills Strategy

The new policy under the temporary foreign worker (TFW) program was introduced in June 2017 to help Canadian employers bring highly qualified TFWs to Canada much more quickly.   According to IRCC, the Global Skills Strategy aims to provide:
·         a two-week processing time for 80% of work permit applications
·         work permit exemptions for highly-skilled workers on short-term work assignments (i.e.  a 15 day-period every six months or a 30-day period every twelve months); and for researchers involved in a short-duration research project (i.e. 120 day-period, once a year) at the invitation of a publicly-funded degree granting Canadian post-secondary institution or affiliated research institution in Canada
·         a dedicated service channel for companies looking to make large, job-creating investments in Canada

There are two ways that a worker can qualify for two-week processing of work permits.
·         they are applying from outside Canada;
·         the job is employer-specific and either skill type 0 (managerial) or skill level A (professional) of the National Occupation Classification; and
·         the employer submitted an offer of employment using the employer portal and paid the employer compliance fee   or
2.  If they have a positive LMIA for an employer-specific job which is eligible under one of two categories under the Global Talent Stream of the Temporary Foreign Worker Program.
a.  Category A -  innovative firms referred by one of  Employment and Social Development Canada (ESDC)’s designated referral partners and seeking to hire unique and specialized talent. indicated by: 
·         Advanced knowledge of the industry;
·         Advanced degree in an area of specialization of interest to the employer;  and/or
·         Minimum of five years of experience in the field of specialized experience;  and
·         A highly paid position with a salary of usually $80,000 or more.
b.  Category B
Employers seeking to hire employees in occupations listed on the Global Talent Occupations List, which may be updated periodically to respond to labour market needs. The current occupation list is as follows:  NOC code Occupation  (Minimum salary)
0213 Computer and information systems managers
2147 Computer engineers (except software engineers and designers)
2171 Information systems analysts and consultants
2172 Database analysts and data administrators
2173 Software engineers and designers
2174 Computer programmers and interactive media developers
2175 Web designers and developers
2241 Electrical and electronics engineering technologists and technicians ($38.94/hr; $81,000/yr.)
2283 Information systems testing technicians ($37.50/hr; $78,000/yr.)
5241 Digital Media and Design ($38.46/hr; $80,000/yr.)


Express Entry Changes and Recent Rounds of Invitations

The IRCC introduced three substantial changes to the Express Entry system effective 6 June 2017:
·   additional 15 or 30 points if the candidate has good French Language skills (NCLC 7 or higher)
·   additional 15 points if the candidate or his/her spouse has an adult sibling who is a permanent resident or Canadian citizen living in Canada and
·   the Job Bank registration is now voluntary and not required to be eligible for being placed in the Express Entry pool.  However, candidates may still create a Job Match account if they want to find work in Canada through the Job Bank

The most recent rounds of invitations had a minimum score ranging from 433 to 440.   The last round was issued to 2,772 candidates with a minimum CRS score of 435.   So far, the lowest score of those invited had been 413 (and 199 for the Federal Skilled Trades class) which occurred in May 2017.       

As always, the above are meant for information purposes only and not as legal advice.  To seek legal advice about your particular situation, please consult a trusted immigration legal professional.

The author is an immigration lawyer in Canada and may be reached at deanna@santoslaw.ca or tel. no. 416-901-8497.