All posts by Will

New Express Entry Italian Page, Immigration Resources, and the Importance of Optics

On June 12, 2015, Canada’s National Defence Minister Julio Fantino on behalf of Canada’s immigration minister, Chris Alexander announced the creation of a new Italian-language resource to help promote Italian immigration to Canada via Canada’s online processing system for economic immigration, Express Entry. The news release can be found here.

I think that recognition by the Federal Government of the imbalance of immigration from certain parts of the world is a good thing. More Italian immigrants to Canada, where many of our top politicians, athletes, and businesspeople have Italian roots is also a fundamentally good thing.

I also think providing resources in languages outside of Canada’s two national languages is fundamental and crucial to attracting top-class immigrants. Before an applicant goes off to taking language exams in one of the two languages, they often times (and many years prior to actually landing in Canada) have to decide to begin the very process of pursuing permanent residence. Without access to resources in the native language of Applicants, it is ripe for individuals who purport to know what they are doing (ghost consultants and the like) to provide immigration services. Many of these services are substandard and ultimately illegally performed.

My major qualm with the Federal Government’s launch of an Express Entry Italian page is that I believe it is not good optics to have resources available in one language and not other languages. With something like the Express Entry Italian page I understand that it is not as simple as creating a page and paying interpreters to translate the resource into many languages. There are discussions that need to be had with consulates, even with domestic governments who do (particularly in the case of China, the country I am now in) the type of web resources available on sensitive issues such as immigration.

However, to provide a page in Italian that is not correspondingly available in Arabic, in Farsi, in Hindu, or in Mandarin suggests Canada is aiming its resources at immigrants from select countries rather than the most economically and socially desirable immigrants from around the world. Optically, I hope many more third-language resources are made available to explain an Express Entry system that frankly is counterintuitive and confusing for many overseas applicants.

A Day One Problem: Post-Graduate Work Permit to Permanent Resident

In December 2014, my colleague Steve Meurrens predicted that the introduction of Express Entry would have a devastating effect on the ability of international students to obtain Permanent Resident status in Canada (see: http://canadianimmigrant.ca/slider/are-options-for-international-students-to-immigrate-permanently-narrowing).

It seems like Steve’s epiphanies have come true. Just this past month I have received no less than 5 inquiries from individuals on the last year of Post-Graduate Work Permits (PGWP) asking about how they can obtain Permanent Resident status.

The challenges are quite clear. Time spent working on PGWPs, while earning some Canadian experience points, do not earn any extra points that appear necessary to obtain an Invitation to Apply. Individuals with PGWPs will have to not only meet the requirements of the Canadian Experience Class or Federal Skilled Worker Programs (at least 1 year of NOC 0, A, B experience), but also likely need either a Provincial Nomination or a Labour Market Impact Assessment.

The Labour Market Impact Assessment, which used to allow for advertising breaks for Employers hiring PGWP holders, now requires a $1000 application fee in addition to the 1 in 4 likelihood of a compliance review. Such burdens are heavy for Canadian employers to bare, particularly when the international graduate is likely entering only a mid-level NOC B position. Furthermore, the advertising exemptions have been removed and Canadian Employers must demonstrate that the PGWP holder is more suitable than Canadian candidates who have many more years of relevant experience and often times higher educational credentials. It is also hard, to make a business case, to pay someone with little experience a prevailing wage that reflects a skilled labour market generally with more experience and demanding hire wages.

One of the biggest problems facing PGWP holders is actually on the front end. Many recent graduates are unable to obtain positions right out of university that are NOC 0, A, B. Many start in NOC C, D positions (often unaware) that there is a requirement to obtain a promotion in order to qualify for Express Entry. Couple this with the fact that options for Entry-Level/Semi-Skilled (EE/SS) workers to obtain Permanent Residence (at least in B.C.) is limited to the currently-closed B.C. Provincial Nomination Program for EE/SS workers.

The Importance of Employer Communication Re: PGWP Status

One of the challenges is that many employees are hesitant to get into the conversation with their employers about their immigration status for fear of job security and other issues. However, this conversation needs to happen and ideally happen at the front end. Unless, it is in an Applicant’s plan to return to their home country following work on a PGWP, continue further studies, or pursue another guaranteed NOC 0, A,B vacancy within two years, not discussing immigration status with an employer can be disastrous. Currently, Canada’s economic immigration programs are all employer driven. If you are to obtain permanent residence in the future an Employer needs to be there to support you – write you a confirmation of employment, make recruitment efforts, provide your paystubs and their own tax/corporate information. Most importantly, they have to put their neck on the line in representations to Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).

Your pathway to permanent residence starts on Day 1. Your employment contract or at the very least, your unofficial understanding with the employer needs to involve your ability to be promoted to a NOC 0, A, B position so you can get at least 1 year of skilled-work experience.

You can check the skill level of your position using the NOC matrix available online. Note that the BC PNP uses the 2011 NOC Matrix (here), which ESDC uses the 2006 NOC Matrix (here) Make sure, however, to obtain proper advice as to the wording of your job duties. Several positions, particularly those designated by Canadian employers who are unfamiliar with the NOC or your requirements to have skilled employment, may inadvertently hire you to a purported “skilled position,” while giving you job duties more akin to a lower-skilled worker.  For example, one may assume that an administrative assistant (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=1&val1=1241) and an office support worker (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/ProfileQuickSearch.aspx?val=1&val1=1411)  would both be considered under the same NOC Code given the similar nature of their duties, but an administrative assistant is a NOC B position (thus qualifying for Express Entry) while an Office Support Worker isn’t (NOC C low skilled position).

It is furthermore important to broach your Canadian employer because of the number of hybrid positions that are subject to classification under lower NOCs by ESDC. A great example of this is in the banking industry where a Customer Service Representative is a NOC C position (http://www23.statcan.gc.ca/imdb/p3VD.pl?Function=getVD&TVD=122372&CVD=122376&CPV=6551&CST=01012011&CLV=4&MLV=4) but a Financial Service Representation is a NOC B position (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=6&val1=6235).

There is arguably a ton of overlap between the two positions and a ton of Customer Service Representatives I know who are gaining in seniority begin to take on some of the responsibilities of Financial Service Representatives. Complicating things, I know some banks call their Customer Service Representatives, Financial Service Representatives.

Another complicated matter are individuals who take on hybrid Account Manager (NOC B) and CSR (NOC C) roles. For immigration purposes, these type of positions will be under heavy scrutiny.

Know your Provincial Nomination Programs

Until the non-Express Entry British Columbia – International Graduates Program is announced in the beginning of July, the Express Entry version is a very good option for applicants (http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Express-Entry-British-Columbia/Express-Entry-British-Columbia-International-Gradu.aspx). Again, one of the challenges is the Applicant has to meet the basic requirements for one of three economic programs – which will require one year of NOC 0, A, B, either prior to coming to Canada and while holding a PGWP. As the International Graduates program requires you to apply within two years of completing your education program, this essentially gives you a two year window to get the requisite experience (assuming you don’t have it).

The International Graduates program is nice because there is no need for previous experience. The Applicant must only demonstrate that they have the means to support yourself and your dependents. For the Skilled Worker program, there is the requirement of several years of work experience, which is usually assumed to be two or more, creating a major time crunch for transitioning from a PGWP.

Regardless, it is important to keep up with the rapidly changing PNP program offerings. For example, on July 1st the BC PNP is reopening several programs, which I forsee may create more options for graduates of particular programs in professions that B.C. views in high demand (possibly LNG, Tech, and Medical fields).

I hope this article provided some insight into the challenges. As always contact me if you have any questions!

 

“If You Build It, He Will Come” – Week 1

In “Field of Dreams,” the main character Kevin Costner is in the middle of the cornfields when he hears a voice that keeps saying: “If You Built It, He Will Come.”

In my first week as an associate, I feel the exact same way. I need to build a foundation. A solid foundation. It won’t always be a perfect foundation but it has to be one that people can rely on. It won’t happen today or tomorrow, but each incremental step – each successful client file, each hours spent on researching an area of the law, will go a long way.

My father told me a story. One that I also saw Ferran Adria (one of the greatest chef’s of our generation tell) also tell.

When he was doing acupuncture back in the day in Victoria, there were days when nobody would show up to the shop. They’d sit there. Worrying about how to get the next payment to pay the bills.

I have it a lot better and that I should be grateful for. I have a shelter, I have food, I have savings. I have great mentors and individuals who refer me files. But, I have to have patience above all else.

There’s two types of clients who generally consult counsel for immigration. Those who really need good work done for fear of damage to their businesses reputation or their families lives. They could be in a huge hole facing removal from Canada or separation from a loved one. These individuals will only trust and work with the best, most competent lawyers,  as they should.

The second group of clients want the quick solution. They demand expediency and they are cost-sensitive. They are the most likely to choose counsel based on price-point and often do select inexperienced counsel simply because they found an ad in a newspaper.

Note: There’s an important third group and a group I care very passionately about. Those who need counsel but can’t afford it. That will be a post for another day. I’ll try and walk you through one of my Access Pro Bono sessions.

As a young lawyer, you aren’t the senior lawyer. You aren’t even the cheap lawyer. My job simply, at this stage, is to be the reliable lawyer. The one client’s can connect with, can trust, and feel like every service fee payment is deserved. It is about not overselling nor underselling my abilities. Even as a lawyer, I am a student of the law and I always will be.

On that note, this week has been a learning experience, but a very good one. As a student, you have people feeding you work and watching your every step. Training wheels. You feel obligated to put in X hours a day to justify your job.

In my position now, I have the ability to control my own schedule, the freedom to take on my own files, but also an responsibility to my Firm, to myself, and most wholeheartedly, to my future clients.

Next week I go to China for a little zen time. I have a girlfriend there I haven’t seen in three months and have seen all of three weeks in the last year. Battle scars.

When I come back, I will need to hit a next gear. I’m in a city with a struggling economy, at a time when immigration laws are uncertain and clients need the advice desperately.

I will try and do a few updates to this particular blog in China, as I read and learn more about the key issues in Canadian immigration law. Until I get to Chongqing… thanks to those who make this story possible.

Opinion: If Canadian Investor Immigrant’s Funds are Already Being Put “At-Risk”, We Might as Well Fund Social Projects

Without mincing work, it is clear from the opening, closing, reopening, and extension of Canada’s Investor Immigrant Venture Capital Program (IIVCP) that the program has been, currently is, and most likely will be a flop.

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I have assisted several colleagues in writing pieces on the IIVCP and as optimistic as we have tried to make it sound in each piece, the front end program requirements are simply unattainable for most and undesirable for almost all who want to immigrate by investment.

Perhaps even worse is the back-end design of the IIVCP. I have had conversations with several seasoned investors about this program.  The actual monetary value of the program does not bother them as much as the complete inability to direct any positive outcome from the program.

From what the instructions and legal requirements seem to set out, it is simply $2 million passed from the Investor Immigrant to CIC who passes it on to the Business Development Bank of Canada (BDC) who lets you know in 15 years whether you are entitled to any ROI.

The seasoned investors I have talked to want to be able to know whether their investments are being pooled or separately managed, whether they will be used to invest only in profitable companies or arbitrarily divided among all companies in the funds, hoping for one gold mine to pan out.

If we’re already going at risk, we might as well gain some social rewards

From a personal perspective, I have never been a fan of a purely passive investor immigration program. I completely agree with the Government’s shutdown of the old model,  one that saw a lot of individuals and institutions make a lot of money, none of which was really reinvested into the Canadian economy and arguably has created political and social divisions in cities such as Vancouver.

I also am wary of the flip-side of the debate. Investor immigration is not economic immigration, and is separate from most of the entrepreneurial programs run through various PNPs.  We cannot create a program that is so heavy on requirements for investors to meet, so much so that they feel so burdened and do not want to participate.

Unfortunately, rather than striking the fine balance between passive and active, we have the worst possible balance of active requirements on the front end and a passive process of the back end.

I think the right balance of passive and active is ultimately in the social beneficial outcomes an investor immigration program can produce. At a time when social funding for the arts, music, social housing, legal aid, adequate statistics, is at a low, here you have a group of investor immigrants who are willing to assist these groups and meanwhile gain some sort of tangible benefit.

This is not a novel concept – the United States EB-5 has element of socially-beneficial investment. Austria has the option of Citizenship through a $2million dollar charity donation [extreme], and Antigua offers a donation to one of the sugar-cane industry labour groups.

So What are You Proposing – Social Capital Immigrant Investor Program (SCIIP)

I don’t believe in tying investor immigrants up in the IIVCP. There’s a Start-Up Visa program picking up steam that adequately facilitates individuals who want to go that venture capital route.

I am proposing that we switch the IIVCP to the SCIIP. The Federal Government (working with its Provincial and Municipal counterparts) can set up a fund or projects designated for socially beneficial purposes.

The investment will be completely at risk (you can make it the same $2 million or go down to $1 million),  regardless you are donating money to a good cause to get a PR. You are doing this much like you donate money at the door of a charity event in order to be able to enter and mingle with the guests.

Aside from the feel good nature of having helped an important cause, the amount of the investment can also returned if certain tasks are accomplished within a, let’s say, five year window. For example, if the Applicant starts up a non-profit charity, the amount raised by that charity can be partially deducted from the total amount. Alternatively, it the Applicant starts up a for-profit business, the number of Canadian jobs created can factor in to some sort of a return on initial investment.

This type of passive/active mix would work. You have the option to stay passive – pay your money and help someone while getting PR, or you can be active, pay your money and bring more benefit in the process of trying to earn a return on your PR.

I think it’s very much time we investigate these alternative options. When I studied the Labour-Sponsored Venture Capital Corporation Tax Credit in law school last year, one of our key findings was that mixing private-equity and government-supported equity may in fact crowd out, rather than promote further private investment.

Just my two cents on this matter.

Breaking down the Bridge – Open Bridging Work Permit

Two weeks ago, CIC introduced clarified instructions on when an Open Bridging Work Permit would be issued with respect to economic class applicants (see: http://www.cic.gc.ca/english/resources/tools/temp/work/prov/bridging.asp).

The parameters are as follows:

1) They are currently in Canada;

2) They have valid status on a work permit that is due to expire in four months or less;

3) They are the principal applicant on application for permanent residence under the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Worker Class, and the Provincial Nominee Class;

4) They have received a positive eligibility assessment on their permanent residence application under one of the Economic Class programs above;

5) They have applied for an open work permit; and

6) They have paid the required fees for the work permit and Open Work Permit holder fee;

It is equally important to look at some of the individuals who are not qualified to apply for a brdiging open work permit

1) Foreign Nationals (FNs) who are Work Permit-exempt Business Visitors;

2) FNs whose status has expired and must apply for a Restoration of their Temporary Resident Status;

3)  FNs whose work Permits that expire in more than four months or if there  is a new LMIA that can be used as the basis of the work permit application;

4)  FNs who are applying for a bridging work permit at the Port of Entry;

5) Spouses and Dependants of PR Applicant -although they may be eligible for an open work permit but this on a separate basis, R205(c)ii) of IRPA, C41 (see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/policy.asp)

6. Provincial Nominees who have not submitted a copy of their nomination letter in an briding work permit application or their nomination letter indicates employment restrictions.

Acknowledgement of Receipt from CIO

The eligibility trigger for FSWC, PNP, and CEC applications is the change of Eligibility status in GCMS or, and Applicants will likely find out this way, through the receipt of an Acknowledgment of Receipt from CIC – CIO.

Express Entry

Express Entry is more peculiar in that there are two Acknowledgement of Receipt letters. The first, when you submit your electronic Application for Permanent Residence does not qualify for the purposes of applying for the Bridging Work Permit. You must wait until your application is considered complete pursuant to s.10 and s.12.01 of IRPR. Atrt this time you will receive an official Acknowledgment of Receipt indicating that the letter may used to support a BOWP.

Employment Restrictions

For Provincial Nominees, it is crucial to review the Nomination Letter prior to submitting this application. There may be an Employer indicated, a NOC indicated,  but the key box to consider is whether there are employment restrictions, a separate box located on current nomination letters.

Term of Issuance

Based on the instructions,  it appears that these are being issued for 12 months, with further extensions to stay on an open work permit considered on a case-by-case basis.

Express Entry Technical Amendment: You Can Get Scores for Non-Continuous Canadian Work Experience

Human Resources concept

Citizenship and Immigration Canada (CIC) has made several technical amendments which came in force May 30, 2015. These amendments are a welcome clarification and should assist those applicants with several years of Canadian work experience. Ultimately, it may give several applicants a big Comprehensive Ranking System (CRS) Score point boost!

Per CIC (http://www.cic.gc.ca/english/department/mi/express-entry.asp) [emphasis added]:

DEPARTMENT OF CITIZENSHIP AND IMMIGRATION

Notice: A technical amendment has been made to sections 15, 19 and 25 of the Ministerial Instructions for the Express Entry Application Management System.

Paragraphs 15(3)(b) and 19(4)(b) were modified to remove the requirement that Canadian work experience be continuous for determining points under the Comprehensive Ranking System for the candidate, spouse or common-law partner.

For consistency and clarity, the Ministerial Instructions were also modified as follows:

  • The term “with one or more employers” was added to paragraphs 15(3)(b), 19(4)(b) and 25(1)(b);
  • The term “full-time employment” in subsections 15(5), 19(6) and 25(3) was replaced by “full-time work;”
  • Subsection 19(3) was repealed; and,
  • The word “emploi” in subsections 15(6), 19(7) and 25(4) and paragraphs 15(7)(a) and 19(8)(a) of the French version of the Ministerial Instructions was replaced by “travail.”

These Instructions come into force on May 30, 2015.

Note: As of May 30, 2015, all valid Canadian work experience will be recognized under the Comprehensive Ranking System (CRS) of Express Entry as CIC is removing the requirement that Canadian work experience be continuous. As a result, foreign nationals with Canadian work experience could see an increase in their CRS points.

You can see a specific effort by CIC to address the challenges particularly faced by the increasing number of contractors (explaining the change in definition from employment to work) as several were negatively impacted by the continuous work experience.

If I am not mistaken, the challenge with continuous work got to the point where program officers at the latest CBA National Immigration Law Conference in Ottawa were recommending that Counsel fill in the gaps of employment (much in the way we do 10 year work history attachments) with explanations. Again, whether this is acceptable practice is not readily clear from the way the electronic form is formatted.

Do note:

Continuous, skilled (NOC O, A, B) work experience of:

  • at least 1 year (Canadian work experience) in the last 3 years for the Canadian Experience Class;
  • and 1 year (can be Canadian or Foreign work experience) in the last 10 years for the Federal Skilled Worker Program;

are still front end requirements to qualify for Express Entry and are not affected by these technical amendments.

 

Canadian Film or Video Production Tax Credit and Canadian Immigration (Part 1)

film-tax-credit

The intersections between entertainment law and immigration law has traditionally been a front-end discussion. Which type of entertainers can come in without a work permit? Which will require one? Are there any LMIA-exemptions?

Very little attention has been paid to the back-end, long-term benefit of having a Canadian permanent resident or Citizen involved in the production of a film. There is a benefit. That benefit is a refundable 25% tax credit for utilizing Canadians.

I will try to do this topic justice here in a series of posts.

  • Part 1 will provide an overview of the CPTC tax credit, review the general eligiblity guidelines relating to immigration, and highlight the “Canadian” Requirements for both Film Production and Distribution companies as well as Producer-Related Personnel.
  • Part 2 will look specifically at Creative Key Personnel, and why you may see so many films filmed in Canada with Canadian actors and directors. It will also look at some the key exceptions.
  • Part 3 will look at Joint Productions and how some of Canada’s Telefilm Co-Production Agreements can be implemented in an immigration savy way. I will also wrap up on some potential Canadian Immigration related strategies.

What is the CPTC?

The Canadian Film or Video Production Tax Credit (CPTC) is fully refundable tax credit, available at a rate of 25 percent of the qualified labour expenditure of an eligible production. The CPTC is jointly administered by the Canadian Audio-Visual Certification Office (CAVCO) and the Canada Revenue Agency. (see: http://www.pch.gc.ca/eng/1268752355851)

General Guidelines

In the CPTC Guidelines (the “Guidelines”) there is a list of 11 requirements in order to meet the program eligibility. Several of these criteria touch upon the importance of ensuring certain key individuals and entities are Canadian. I will address only the ones relevant to immigration. The Guidelines state (emphasis added):

  • All producer-related personnel (other than those receiving exemptions permitted in limited circumstances) must be Canadian. For productions involving non-Canadian development, financing or distribution, the producer should read s. 4.09 and s. 4.10 thoroughly before entering into any agreements with non-Canadians.

  • Not less than 75% of the total of all costs for services provided toward producing the production (other than excluded costs) must be payable for services provided to or by individuals who are Canadians, and not less than 75% of the total of all costs incurred for the post-production must be incurred for services provided in Canada. (s. 5.06)*

I will analyze s.4.09 and s.4.10 in Part 2 of my series on this topic.

“Canadian” production company and distribution company requirements

The guide goes on to discuss the requirement for the CPTC applicant production company and the Canadian distribution company to be Canadian (emphasis added):

To qualify for the CPTC, the applicant production company, and if applicable, the Canadian distribution company through which it will distribute the production in Canada, must be owned and controlled, either directly or indirectly, by Canadian citizens or permanent residents in accordance with definitions found in a combination of the Citizenship Act, the Immigration and Refugee Protection Act (which replaces the Immigration Act) and the Investment Canada Act (ICA).  This requirement is set out in subsection 1106(1) of the Regulations of the Income Tax Act.

By virtue of s. 1106 of the Income Tax Regulations, CAVCO must determine, among other things, whether a corporation’s shareholders are “Canadian” within the meaning of s. 3 of the ICA. According to the ICA, Canadian means (emphasis added in original and in analysis):

  1. A Canadian citizen;

  2. A permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, who has been ordinarily resident in Canada for not more than one year after the time at which he or she first became eligible to apply for Canadian citizenship;

  3. A Canadian government, whether federal, provincial or local, or an agency thereof; or

  4. An entity that is Canadian-controlled, as determined under subsection 26(1) or (2) and for which there has been no determination made under subsection 26(2.1) or (2.11) or declaration made under subsection 26 (2.2).

For greater clarity, an individual is “Canadian” for the purpose of determining Canadian control of a corporation if it can be established that he or she is:

  1. A Canadian citizen; or
  2. A permanent resident, within the meaning of subsection 2(1) the Immigration and Refugee Protection Act, who i) is ordinarily resident* in Canada and ii) is not eligible to apply for Canadian citizenship or has not been eligible to apply for Canadian citizenship for more than one year.

*To be considered “ordinarily resident” in Canada, an individual must demonstrate that he or she has taken residence in Canada in his or her usual day-to-day routine.

As you can see, the CAVCO/ICA definition of Canadian in respect of permanent residents is stricter than the definition provided in IRPA. The individual not only must be a permanent resident but also one who is ordinarily resident (by definition essentially lives in Canada) and as well cannot have been eligible for Citizenship for more than one year at which time they have did not applied to obtain Citizenship status.

“Canadian” Production-Personnel Requirements

To further complicate things, a different definition of Canadian from the Investment Canada Act is applied when determining whether the producer-related personnel is Canadian.

It is written (emphasis added):

Production Personnel

4.01 Proof of Canadian Citizenship or Permanent Residency

4.01.1 Requirements

Other than where a production is a treaty co-production, a production company must provide proof that individuals for whom key creative points are being requested, as well as individuals occupying producer-related positions, are Canadian. With respect to producer-related or key creative personnel for a production, the term “Canadian” is defined as a person who is, at all relevant times, a Canadian citizen as defined in the Citizenship Act, or a permanent resident as defined in the Immigration and Refugee Protection Act. The person must be Canadian during the entire time he or she performs any duties in relation to the production.

The CPTC Guidelines do not specify or clarify what “during the entire time he or she performs any duties in relation to the production.” However, the Canada Radio-Television and Telecommunications Commission in their guide (see: http://www.crtc.gc.ca/canrec/eng/guide2.htm) to their own “Canadian content” certification and application process provides guidance that is likely cross-applicable. The CRTC guide states (emphasis added):

Canadian at all relevant times means that an individual must be Canadian at the time he or she begins his or her duties in relation to the production and during the entire course of the filming or taping and post-production. An individual cannot acquire permanent resident status in order to qualify as Canadian at any point during a production; such status must be confirmed before the individual begins engaging in any activity related to the production. An individual acquiring permanent resident status after he or she begins engaging in any activity related to the production will be considered a non-Canadian for the entire production. Likewise a corporation must be a Canadian-controlled corporation during the same time period.

Therefore it is important that applicants confirm the status of each person who will occupy a key creative position before the person begins engaging in any activity related to the production.

This issue is one that I will believe will be at the crux of where an immigration lawyer can add value. “Activity related to the production” seems very broad reaching, particularly where in the entertainment field there is a lot of cross-collaboration and sharing between film projects and also a very short transition (one day) between temporary residence and permanent residence.

Reading the above, it appears that it will be very important for Production Companies to keep a very good record of each production personnel’s start dates, along with their immigration status throughout the film production process. This along with important dates such as permanent residency card expiry dates, as expired PR cards will trigger the need to reapply to CAVCO to obtain a new personnel number (more on this in my next post!).

In part two, I will get to the fun stuff. A film (live production and animated) has several key creative personnel – directors, lead actors – what are the rules for them? How many need to be “Canadian” to qualify for the CPTC tax credit? STAY TUNED!!

Interview with Paul Sohn: Reflections from a Successful Korean-Canadian/American Immigrant

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Earlier this year, I had the distinct privilege of interviewing my former undergraduate colleague and friend Paul Sohn.

Paul (http://paulsohn.org/) is an award-winning author, mentor, leadership expert, and devout Christian among many other titles. He comes from very hardworking and successful roots, one that began when he came to Canada from Korea, by himself, as a 14-year old student.

He has since left Canada to pursue a successful career in the United States, which began at Boeing and has now landed him with GIANT Worldwide. He has some excellent and inspirational advice for those starting out in Canada, particularly from the Korean diaspora.

  1. What is your name, age, and nationality? Where do you currently live and work?

My name is Paul Sohn. I’m a 28 year old Korean. I currently work as a Consulting Associate at GIANT Worldwide and am pursuing a Masters in Organization Development at Pepperdine University.

  1. When did you first immigrate to Canada? Can you tell us why your family chose to immigrate to Vancouver from South Korea?

At the age of 14, I left everything I had in Korea – including my family and friends – to start a new life in Canada all by myself. Frankly speaking, I honestly didn’t see any future for in Korea. The societal and cultural pressures to conform to a certain lifestyle was overbearing. In many ways, I was deemed a “loser” and my prospects for a successful life eluded me. In an attempt re-design my life, I mustered the courage and decided to leave everything behind and start a new life.

  1. What do you remember about your early days in Vancouver?

The first several years was about the transition from a young boy to young adult. I experienced many new things in life. New homestay family. New school. New friends. New language. New culture and so on. Everything was about new beginnings and I was doing my best to acclimate to the new culture.

  1. What types of things did you do to help integrate yourself into this city when you arrived?

I had the privilege of living with a Canadian homestay family during high school. They treated me as if I was their real child. They poured out their love. They invested in my growth. They cared about my future. I remember spending countless hours talking about all kinds of topics. Our relationship has continued to flourish since then. Now, I call them “mom” and “dad” and the homestay children as my “brothers” and “sisters.” This support network enabled me to stay focused and adjust to the new environment.

  1. Did you feel any challenges being a new immigrant and a Korean in Vancouver? Did that change over time?

As a Korean, the temptation to surround myself with same Koreans both at school and social life was real. After all, people find it a lot more comfortable being around with people who speaks the same language and understands your culture. However, I felt a strong need to go outside of my comfort zone and to stretch myself and challenge the status quo. Without focus and intentionality, it’s so easy to choose the easy road. Instead, I chose the narrow path. The journey wasn’t easy. I had to face my fears and overcome my weaknesses to become part of the mainstream.

  1. Why did you choose to leave Vancouver?

After graduating from high school and university, I moved to Portland, OR in the United States for my first and new full-time job. Not only was it difficult to find a career that aligned my vocational interests, my parents moved from Korea to the States a few years prior to my graduation. Thankfully, I was able to obtain a green card allowing me to work in the States which offered greater career mobility.

  1. Do you hope to return to live here permanently in the future?

I don’t have any immediate plans to return back to Canada at this point. At point, however, I’d like to come back and live for at least several years.

  1. What would you recommend to new immigrants who may be unable to secure employment or develop networks in Canada?

First and foremost, learn the language. Without being proficient in English, your choices for secure employment becomes virtually impossible. I also think connections and building relationships with various people will help you to find career opportunities in Canada. Studies show that most people get a job through personal networks instead of submitting your application online.

  1. What culturally specific challenges do you think exist for new immigrants from Korea to Vancouver?

Like I said earlier, there is a tendency for Koreans to limit their network with just Koreans. It’s vital to expand your network and build a culturally diverse portfolio of connections.

  1. What do you see for the potential of Korean business in North America, and specifically Vancouver?

I have seen a growing number of bright Koreans moving to North America. As they engage with culture and immerse themselves as part of the mainstream, I believe this will generate more opportunities for growth. In addition, the rise of Hallyu (Korean Wave) worldwide will create greater interest for Koreans to create a blue ocean market.

  1. As someone of the Korean Diaspora community who uses faith as a major motivation factor how do you believe faith can be a useful tool for new Korean immigrants to Canada? What local Vancouver faith-based organizations would you recommend?

Faith is a powerful source of hope for immigrants to Canada. In particular, Koreans are known for their religious fervor and belief in God. Many immigrants find churches to find a community where they can find “home.” Many rely on this religious community as a way to find new vocational opportunities as well. The practical benefits of joining a church cannot be ignored. 

Opinion: Truth and Reconciliation Commission Has it Right on Canadian Citizenship

On June 2, 2015, the Truth and Reconciliation Commission released 94 recommendations after years of hearings and testimony from thousands of residential school survivors and several other key stakeholders.

trc02

Among those recommendations are a set related to citizenship and immigration (emphasis added):

Newcomers to Canada

93. We call upon the federal government, in collaboration with the national Aboriginal organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and history of residential schools.

94. We call upon the Government of Canada to replace the Oath of Citizenship with the following:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.

These changes, to me, are important beyond just a symbolic gesture of apology for past wrongdoing. From the Canadian history textbooks I grew up reading to today’s oath and exam materials, none has truthfully and honestly reflected the complex, diverse, rich, important, and at times very tragic history of our Aboriginal peoples.

For myself personally, I could not care less if a new citizen does not know the full name of our Prime Minister. Prime Ministers come and go. However, for a new citizen not to know of the events surrounding Residential Schools or know of at least the names of two Aboriginal bands in Canada, is inexcusable. Its a critical omission that will affect their future human interactions with Aboriginal peoples and thus our own Canadian identity.

As we welcome in new Canadians, it only seems right we reflect on and pay homage to the first Canadians. Our Aboriginal Peoples. Our brothers and sisters. Our forefathers.

I hope Minister Alexander or whoever becomes Minister of Citizenship and Immigration post-election, makes implementing this uncontroversial change, an early priority.

Sponsoring My Foreign Love – Preliminary Considerations (Part 1)

Recently, likely due to the summer wedding season being in full effect, I have been approached by several individuals considering the spousal sponsorship process.

immigrant-wedding

The increased interest in sponsoring a spouse may also be tied to the increasing difficulty of obtaining permanent residence through other economic streams. Particularly for young international couples  whose study permits, post graduate permits, and International Experience Class work permits are running out, the need to tie the knot in order to stay together becomes a date-ruining dinner time conversation.

As part one of a multi-part series, I will try and cover some of the challenges associated with spousal sponsorship applications.

So what are some considerations to consider prior to embarking on an application to sponsor?

1. Where are the potential Applicant and Sponsor currently residing and what is their legal status there? What is the Applicant’s immigration status in Canada?

This question is important for several reasons. To file an Inside Canada spousal sponsorship application, there is a requirement for the Applicant to actually be in Canada.

For Outside Canada spousal sponsorships, there is also the potential option of selecting the Visa Office that processes the second part of your Application. You can apply to a Visa Office that is not your country of citizenship if you currently hold legal status in that country and have done so for more than one consecutive year. This may be particularly useful for applicants who are citizens in a country such as Pakistan (currently 40 month processing time) but have legal status by virtue of study or work in London, England (currently 28 month processing time).

It is also important to consider their status (if they are in Canada). Do they have temporary resident status in Canada now? When does that status expire?  Are they out of status?

These questions will affect what procedure you ultimately choose in sponsoring.

2. What is the status of your relationship? 

Closely related to the above question of immigration status is the question of relationship status. Under Canadian Immigration Law you can sponsor a spouse or common law partner if:

(1) they are your legal spouse (i.e. you married);

(2) they are your common-law partner (at least 1 year of cohabitation and currently cohabiting in conjugal relationship);

(3) they have been in a conjugal relationship with you for one year (unable to cohabit due to persecution or penal control);

In addition to determining whether you have met the above categories, it is also important to ask yourself whether you have the evidence to show that you have met the above categories. For example for you and your common-law partner: Do you have proof that you have co-rented or co-leased a place to live for over a year? Do you have a joint bank account showing a conjugal (not just roommate) relationship?

These are all very relevant questions in determining common-law status as well as relationship genuineness at a later stage.

3. What are current application processing times?

Currently for Inside Canada spousal sponsorship applications the processing time is 26 months. This time is encapsulated in 17 months to obtain a first-stage approval that the relationship is bona-fide. In an Inside Canada sponsorship all of the processing takes place in Canada at Case Processing Centre Mississauga (CPC-M). Interviews, if necessary, are generally arranged at the local CIC office in the city which you reside and will require attendance by both Applicant and Sponsor.

Currently for an Outside Canada spousal sponsorship application, the processing time varies from 5 to 40 months depending on Visa Office. Note that this in addition to the assessment of the sponsor which currently takes 55 days. In an Outside Canada process, the sponsor assessment occurs at CPC-M before the application is sent to a visa post abroad for assessment of the bona fides. Interviews, if necessary, are arranged outside Canada and will require attendance by both Applicant and Sponsor.

Why is it important whether you have an immigration officer in Pakistan or London assesses your application? Asides from the level of scrutiny that may possibly differ (statistics don’t show too much of a correlation between visa posts), it will definitely affect the time it takes to make a decision.

Here are the processing times accessed from CIC as of 02/06/2015.

Processing times for sponsorship of spouses, common-law or conjugal partners and dependent children applications

The tables below indicate application processing times at Canadian visa offices once Step 1 has been completed. The times are based on how long it took to process 80 percent of all cases between April 1, 2014 to March 31, 2015. Processing times are subject to change.

Last quarterly update: May 20, 2015

Africa and Middle East
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Abu Dhabi – United Arab Emirates 13
Accra – Ghana 16
Amman – Jordan 24
Ankara – Turkey 11
Beirut – Lebanon 16
Cairo – Egypt 18
Dakar – Senegal 21
Nairobi – Kenya 22
Pretoria – South Africa 15
Rabat – Morocco 8
Tel Aviv – Israel 9
Asia and Pacific
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Beijing – China 10
Colombo – Sri Lanka 10
Hong Kong – China 10
Islamabad – Pakistan 40
Manila – Philippines 17
New Delhi – India 16
Singapore – Singapore 28
Sydney – Australia 11
Europe
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bucharest – Romania 17
Kyiv – Ukraine 12
London – United Kingdom 28
Moscow – Russia 24
Paris – France 8
Rome – Italy 12
Vienna – Austria 16
Warsaw – Poland 12
Americas
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bogota – Colombia 12
Buenos Aires – Argentina 14
Guatemala City – Guatemala
Havana – Cuba 10
Kingston – Jamaica 23
Lima – Peru 10
Los Angeles – United States 29
Mexico City – Mexico 17
New York – United States 35
Ottawa (Case Processing Centre) – Canada 16
Port-au-Prince – Haiti 23
Port of Spain – Trinidad and Tobago 17
Santiago – Chile 22
Santo Domingo – Dominican Republic 14
Sao Paulo – Brazil 5

Notes

  • You can view your application status online.
  • If it has been longer than the time shown above since you applied and your visa office has not contacted you, you may wish to contact the visa office that is processing your application. The Call Centre does not have information about applications processed outside Canada.
  • (–) indicates that not enough data are available. Processing times are shown only where an office has finalized 10 or more cases in the past 12 months.

SOURCE: http://www.cic.gc.ca/english/information/times/perm/fc-spouses.asp

Returning to our Pakistan and London example, the same application processed in Pakistan will take a calendar year longer.  You can readily see the huge discrepancies between visa posts,

4. Should I choose the Inside Canada or Outside Canada process?

As alluded to earlier, Applicants currently residing in Canada have a choice of applying for an Inside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/spouse.asp)  or, if they have temporary resident status and reside in Canada, an Outside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/fc.asp). Applicants applying from outside Canada can only utilize the Outside of Canada process.

Note with an Outside Canada application you will also need to show that there will be an effort to bring the spouse to Canada to reside permanently upon being granted permanent resident status.

An Inside Canada spousal sponsorship application certainly has its advantages, among which include:

  1. If the Applicant has valid temporary resident status after 4 month processing, there is currently a pilot project for a spousal open work permit which will allow the Applicant to work in Canada for any employer in Canada;
  2. The Applicant can still have their application processed without holding temporary resident status and has the benefit of an administrative deferral of 60 days in most circumstances (in which time the application will be processed) if removal proceedings are issued against the Applicant;
  3. For those who currently have temporary status and apply to extend their temporary status in Canada along with their in-Canada spousal permanent residence application, they can have implied status for the duration of the processing or until they leave Canada;
  4. The entire process occurs in Canada, there is no need to travel abroad for an interview at a foreign visa post;

However, there are also several disadvantages:

  1. The spouse/common-law partner needs to reside and live together in Canada for the duration of processing. Any separation (particularly outside of Canada travel by one party) may effect severance of the common-law relationship;
  2. Any denial of re-entry for the Applicant to return into Canada will lead to refusal of the in-Canada application and will trigger the requirement to reapply (likely using the Outside Canada process);
  3. You have no rights to appeal to the Immigration Appeal Division in the case of your application being refused. Your only recourse is the Federal Court where the visa officer’s decision is reviewed on the difficult to challenge standards of reasonableness and correctness;
  4. There is currently a 26 month processing time for these applications in which time the Applicant will not be a permanent resident of Canada; and
  5. The open spousal work permit is a pilot project and subject to change. Previous to the new pilot program, spousal work permits were only issued after 17 months of processing, meaning many couples had to rely solely on the Sponsor’s income for 17 months;

An Outside Canada spousal sponsorship application also has its advantages:

  1. The Applicant and Sponsor do not need to reside together in Canada and can pursue options either abroad or in Canada;
  2. There is a general right to the Immigration Appeal Division in the event your Spousal Sponsorship application is refused (except in serious criminality, misrepresentation, terrorism,  etc.). At the IAD you will have a second chance in a de novo (new) hearing to prove the genuineness and purpose of your marriage (should that be the ground for refusal).

However, there are also several disadvantages:

  1. There is no right to an open spousal work permit and you will likely have to obtain the ability to work in Canada through under means;
  2. Couples may have some challenges spending immediate time together in Canada where the Applicant is from a country where a TRV is required and prior to the submission of an Outside of Canada spousal sponsorship. However, I have found that several applicants who have applied for Outside Canada spousal sponsorships are able to get TRVs on the basis of a pending spousal (family reunification) as long as they demonstrate dual intent and the ability to effect departure at the end of their authorized stay; 

5. Applying for a Fiancee/Boyfriend/Girlfriend Visa

Having been through this myself, I can tell you that one of the most frustrating challenges is separation from a fiancee, boyfriend, or girlfriend from a country where a TRV is required and who (1) cannot qualify for another category of immigration; and (2) wants to be able to spend time with you in Canada prior to a marriage (or even so a marriage can take place here in Canada);

From my research into these types of TRV applications, there is no magic formula other than to be full and frank with your disclosure of the underlying relationship and to heavily emphasize the ties to the Applicant’s home country.

I have met quite a few individuals whom, for whatever reason, are hesitant of divulging their true “fiancee” status and opt to try and obtain a travel visa instead, without disclosing the relationship as the primary purpose or a purpose for travel.  While a visa may be issued at this stage, down the road, this omission may necessarily create contradictions when you are asked on your spousal application about the details of your relationship.

A signed letter from the Applicant declaring they understand the requirements of Canadian immigration law and understand that even though they may have the intention to reside permanently in Canada in the future, but fully intend to leave Canada when authorized may be useful.

Once you are able to obtain a Temporary Resident Visa, pending sponsorship, you will certainly have more a flexibility to choose where to get married and what process (Inside Canada or Outside Canada) to choose.