All posts by Will

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.

 

Questions from a Pre-Law Student (Part 1)

A week and a half ago I was approached by a Pre-Law Student with some questions about whether to go to law school or grad school and related issues.

I thought I’d post my answers that I gave her.

  1. Why did you pursue law school?

I wanted to pursue law school since I was a kid, but I was probably jaded by the “arguments” and “big bucks” as per my grade 7 yearbook.

Truthfully, it was during undergraduate when I started volunteering with Access Justice (now Access Pro Bono), and realized how much the law impacted individuals day-to-day lives. I also started getting heavily involved in community advocacy efforts in my history and international relation studies. I realized that one of my major challenges was that it was difficult to speak up as just an “undergraduate student.”

I guess I wanted people to take me a little more seriously.

 

  1. Should I work for a few years before pursuing law school or go straight into it?

It depends. Do you have something specific you want to go into? I think if you have a legitimate position that you can go into (either a high-level government job/internship or one with a great company) you should jump in. You could possibly make some money and help pay for law school. You may also put yourself in a good position to come out of law school and combine your experience. For you in particular, if you found a very good gig in marketing and became a marketing professional for a couple years, arguably you could go to law school and be very good at areas around legal marketing. I’ve seen a few people very successful at this particular in the entertainment industry where they became entertainment lawyers.

  1. Should I take an LSAT prep course or self study?

It depends on how fast you are getting it. I would start by getting some books or materials off a colleague and reading them. If you feel like its intuitive you can start doing practice exams on your own.

I took two courses, both very expensive, and only the second one was very helpful. For me, the battle was more mental and the second course (and the instructor) was really helpful. He doesn’t teach anymore. Needless to say I didn’t do so well on the LSAT, writing three times (cancelling twice) and only obtaining 66th percentile.

  1. What do you think about an international law degree obtained abroad?

I would obtain one in Canada if you foresee your future here (that is unless you go to a top Ivey league U.S. J.D program). I think that due to the lack of legal jobs in Canada, more pressure is being placed on the system to provide less opportunity to foreign-trained lawyers and more to domestic students. However, if you foresee yourself living and working in another city abroad, go do law school there (near there) for sure.

Finally, I think all law schools in Canada are good. Don’t feel pressured to think only the top schools are the best. Also, for someone more holistic and well-rounded like yourself you may do better at a school that focuses more on well-rounded areas and recruits those type of students.

Judicial Review and Immigration Appeals: Why I Love This Area of the Law

As Canadian Immigration laws in Canada get tighter and tighter, it appears that judicial review (JRs) and immigration appeals work gets more and more important in the overall process of assisting an individual is coming to or staying in Canada.

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I’d like to provide my own quick summary of the processes and my own experiences in this piece. I will not delve very deep into the legal or procedural requirements in this post, it is more to summarize the process and highlight aspects I find interesting. As always, none of the below should be construed as legal advice.  

Who can do JRs and Immigration Appeals?

Right off the bat, there are a few things you should know about Judicial Review. Aside from the individual themselves, only a lawyer called to a provincial bar in Canada can represent an applicant in this process.

Immigration Appeals  can be done by both lawyers and consultants.

What are JRs and Immigration Appeals?

Judicial Review

Judicial Review is an administrative law process where Applicants can ask the Federal Court of Canada (and in some jurisdictions  other Courts) to review the decision of a tribunal or government-authorized decision maker’s decision (i.e visa officer, minster’s delegate, etc) on the grounds that it was either (1) unreasonable or (2) was incorrect and breached the Applicant’s procedural fairness.

Where reasonableness is the standard of review, the Federal Court is expected to show deference to the Administrative Tribunal or decision-maker. Where correctness is the standard of review, there is no deference and Federal Court can replace the decision of the Administrative Tribunal or decision-maker.

The process of filing a JR is key. I will differ to the Federal Court of Canada to explain this process step-by-step (including important statutory timeline issues): http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/ApplicationIMM 

From my experience a lot of practitioners who aren’t as successful at obtaining leave for judicial review fail to put in the early effort into putting together a strong Applicant’s Record, including effective affidavits laying out the facts and a detailed memorandum of argument laying out the standard of review and legal arguments for why that the decision failed to meet that standard (be it reasonableness or correctness). One of the common flaws, as a Federal Court judge once expressed in a speech she gave, is a lack of facts to establish the factual basis and too much irrelevant case law to try and argue a point. When you start throwing in a dozen cases (without citing specific factual differences), you have a bunch of authority with no factual or casual link to your own case at bar.

Judicial review is not, and I repeat is NOT, an opportunity to argue that the decision maker’s decision was wrong and that the decision maker should have done X or Y instead. As long the decisionmaker’s decision was within the ‘range of possible outcomes’ the Federal Court will not interfere with the decisionmaker’s decision. Even insufficient reasons in a decision is no longer automatic grounds for a decision to be unreasonable.

Also remember that affidavits that are filed cannot include information that was not before the tribunal or panel making the decision, subject to some carved out exceptions. For a good case on exceptions check out:  Association of Universities and Colleges of Canada and the University of Manitoba and the Canadian Copyright Licensing Agency 2012 FCA 22 at para 20  (http://canlii.ca/t/fpszj)

After filing your Applicant’s Record containing your affidavits and memorandums, Minister’s Counsel (represented by the Department of Justice) will assign a counsel to your case. Minister’s Counsel can do one of three things after receiving instructions from their client : (1)They may choose to consent if the decision is prima facie in error or procedurally unfair; (2)They may also choose to file a memorandum in response opposing your application for leave and stating that there is no arguable case at leave; or (3) they make take no position.

Taking no position does not necessarily mean you have won the case. It can be a positive thing – meaning they think you have an arguable case, but it is just as likely that they may wish to respond further after leave or that they require memorandums or further client instructions in order to adequately respond. Ps. I am purposely not going into the Stay process (a blog post in itself)

If Minister’s counsel does respond, you will likely need to make a further reply, in which you clarify your grounds and emphasize why you still have an arguable case at leave.

The decision then goes to a Federal Court judge who decides whether or not to grant leave. Even though the threshold is quite low, Leave is granted in only approximately 30%-38% of all cases by latest estimate.

If leave is granted, there is another round of affidavits and memorandums, with the Applicant being asked to file first. There is no final reply if Minister’s Counsel does file a Final Memorandum as at the oral hearing (statutorily scheduled no later than 90 days after the Minister’s) you will both have the opportunity to respond.

The Oral Hearing involves Counsel for the Applicant presenting their case first, discussing the unreasonable and procedurally unfair elements of a decision. Minister’s Counsel then makes submissions, followed by a brief opportunity for Applicant’s counsel to reply. In the case of a Federal Court Judge who is more passive, this may all go very much according to script. However, I’ve seen other Federal Court judges who very much want to engage on the issues and ask both Counsel questions to challenge their respective positions.

Most decisions, that are not among the rare decided by oral order from the bench, are released by the Federal Court judge. This process can take several weeks to months.

Immigration Appeals Division

Usually, Applicants hear about their right to appeal in the refusal letter triggering the 30-day appeal window. Once an appeal is applied for a hearing date is usually set.  One of the ongoing challenges right now is that it takes quite a bit of time to schedule a hearing, a problem that appears particularly bad in Toronto.

For a client this delay may not be so bad. More time, in the case of a residency appeal, criminality, and even spousals is more time arguably to show that requirements are now being met and conduct has now improved.

The most important part of an Immigration Appeals Division (“IAD”) case is that it is a hearing de novo. The member or panel that decides your case can take into account new evidence. However, there is a caveat in that this new evidence still has to go to the reasonableness of the correctness of the decisionmaker’s decision at the time it was made.  From what I have seen, recent circumstances and improvements in situation DO play a big factor into decisions, often times in the equitable jurisdiction (Humanitarian and Compassionate Grounds) that the Member can consider.

During the Immigration Appeals process, there are several opportunities for the Appellant (Applicant or Sponsor, in spousal appeals) to make disclosure to Minister’s counsel (and vice vers). These disclosures can contain letters of support, photographs, and other evidence that supports the case.  I have also seen counsel use the opportunity to provide written submissions as to the merits of the case.

Rule 20 of the IAD Rules also provides for the potential of seeking Alternative Dispute Resolution. The IAD may seek ADR in specific cases, while in other cases it may be negotiated with CBSA during the period leading up to the appeal. At an ADR, a Hearings Officer may question the Appellant and may offer to consent to the appeal. If consent is not reached, a full hearing will follow.

Immigration Appeals involve the direct examination and cross examination of key witnesses to the situation being challenged on appeal, followed by legal submissions (if necessary). The opposing counsel will likely be a Hearings Officer representing either CIC or the Minister of Public Safety and Emergency Preparedness. Hearings Officers vary from the very understanding to the very critical, and the position they take (and possible willingness to consent) is very crucial to the final outcome of the case.

If Judicial Reviews are all about Standard of Review, Immigration Appeals are all about the facts. Counsel will need to work with Applicants to ensure all the relevant facts are brought to the table, particularly those that contradict what the decisionmaker found. It is also key that all witnesses are credible and on the same page factually. Assessing an individual’s credibility is ultimately a guessing game, but many of the factual inconsistencies that go to a negative credibility finding are more readily apparent. Needless to say Immigration Appeals take a lot of preparation and require a good, honest client-counsel rapport.

Distinction between JR and Immigration Appeals

There is a distinction between Judicial Review and Immigration Appeals. There are cases where you have the right to appeal to the Immigration Appeals Division (where in almost all circumstances you must exhaust the appeal before exercising your right to judicial review), cases where you do not have the right to appeal to the Immigration Appeals Division and therefore can only try to judicial review the decision.

5.2. Distinction between an appeal and judicial review

The IRPA [Immigration and Refugee Protection Act] provides two levels of review of decisions made under the Act: review by way of statutory appeal to the IAD and review by the Federal Court.

Pursuant to section A63 (as limited by section A64) sponsors, visa holders, permanent residents and protected persons have a right to appeal adverse decisions to the IAD.

……

In all other cases, where no statutory right of appeal exists or those rights have been exhausted, there is a right to seek judicial review of any decision made pursuant to the IRPA by filing an application for leave and judicial review to the Federal Court pursuant to A72(1).

Section 64 of IRPA sets out there is no appeal for inadmissibility in security, serious criminality (more than 6 months imprisonment), and misrepresentation cases.

What happens if you win?

There is also a difference in both forums if you win. Generally speaking, when you win at the Immigration Appeal Division the Member will make some sort of order: “the Applicant has not lost their permanent resident status” or “the Applicant’s marriage was found to be genuine and not-entered into primarily for the purposes of immigration.” In these cases, Applicant’s may still have to file a new application or have their application go back into processing. While it is not legislatively firm in writing, from a CIC policy perspective the IAD decision usually has quite a heavily influence in the case being re-decided.

In a Judicial Review, there is an acknowledgement that the decision was unreasonable or procedurally unfair, but in most cases it will be returned to a different decision-maker for reconsideration. While Minister’s Counsel may guide their client’s in some way as to why their previous decision was flawed, the visa office or post is not influenced by the Federal Court decision nearly to the same way it is by an IAD decision. A good example of this is in cases where the insufficiency of the reasons contributed to the unreasonableness of a decision. In this situation, a visa officer can issue another refusal this time with more complete grounds for refusal or a separate, unrelated ground for refusal.

Getting Back to Why I love JRs and Immigration Appeals

In terms of engagement level, digging deep into a case, Immigration Appeals and Judicial Reviews are the forum to do so. In Appeals, I find that this digging occurs factually. Effective counsel,  through good questioning technique, can suss out the contentious factual issues which led to the refusal and use new facts or clarified facts to bolster the case. Meanwhile, Judicial Reviews are all about the legal analysis. Standard of Review arguments are getting more challenging – the line between reasonableness and unreasonableness ever so fine. Many times, judicial reviews also involve an in-depth level of statutory interpretation and case law research which is about as high-level immigration law as you can get.

Hope you enjoyed this piece about my two (arguably) favourite parts of immigration law. I’d love to help anybody currently in one of these forums and needing advice!

Medical Inadmissibility Appeals and the Application of De Novo Evidence 

26-05-2015 medical_coverage

I am working on an Immigration Appeal Division (“IAD”) case involving the sponsorship of a family member who was found medically inadmissible. An interesting legal issue came up, which I found has not been widely discussed in immigration law texts, but may be very useful for practitioners and applicants alike: what happens if the Applicant’s condition or drug prices have changed since the initial negative decision and you are now at the IAD?

Facts

The loose factual situation is that since the negative medical inadmissibility report was issued several years ago, there have been several developments which (arguably) may not leave the individual medically inadmissible today. For example, as of June 2014, the minimum cost threshold (beyond which medical inadmissibility for excessive demand on health and social services would kick in) increased from $4,057 to $6,387 per month. This is a very substantial amount.

In our situation and in my estimate, the Applicant, according to today’s figures and our estimates of today’s prescription drug prices, may indeed fit under the new threshold and possibly the threshold from two years ago too.

Issue

Asides from the issue of challenging the reasonableness or correctness of the Visa Officer’s decision, can we introduce this new De Novo evidence as evidence of non-inadmissibility? In other words, can the IAD consider this evidence as a legal argument that the Applicant is no longer medically inadmissible?

Analysis provided by Vazirizadeh

The short answer appears to be no. The relevant case law authority for this is Vazirizadeh v. Canada (Minister of Citizenship and Immigration) 2009 FC 807. In Varzirizadeh, the Applicant had knee surgery following a medical inadmissibility finding based on osteoperosis. It was determined following the inadmissibility finding that one of her knees no longer required surgery. The IAD refused the Applicant’s appeal based on humanitarian and compassionate considerations, and the Applicant brought an Application for Leave and Judicial Review to the Federal Court now also challenging the legal validity of the decision.

The Applicant argued that as the IAD hearing was de novo, it should have considered the appellant’s changed medical status, whereas the Respondent Minister argued that the IAD considered both pre-surgery and post-surgery circumstances, and determined the medical inadmissibility had not changed (para 18). The Respondent also argued that de novo evidence could only reverse a medical inadmissibility finding if the evidence demonstrated that either the visa officer’s decision was incorrect at the time or breached the Applicant’s procedural fairness (at para 19).

Justice Frenette, citing the still oft-cited decision of the Federal Court of Appeal in Mohamed v. Canada (Minister of Employment and Immigration),  68 N.R. [1986] 3 FC 90, adopted the Respondent’s position concluding that “subsequent improvement in the medical condition was only relevant to whether special relief should be granted on appeal” (at para 20).

Therefore, it appears that arguments relating to change in medical condition or drug costs will not assist in challenging the legal validity of the Officer’s decision.

But, it is still useful in an appeal?

Application in a Recent IAD Case based on Special Relief – Boukrab

Boukrab v. Canada (Minister of Citizenship and Immigration) [2015] IADD No. 25 is an interesting case of a self-represented litigant who was found medically inadmissible by a visa officer as a result of rheumatoid polyarthritis (para 4).

The visa officer’s medical report itself [it was in French, so pardon my limited French translational abilities] found that the Applicant’s condition would likely continue to deteriorate and listed several drugs that he would require under Ontario’s medical insurance program.

In an effort to likely bolster the medical report, the Minister’s Delegate in hearing disclosure provided a Globe and Mail article which showed that injections or infusions for treating the condition would cost upwards of $20,000.

The Applicant’s arguments regarding the ability to “pay for his mother’s drugs,” were not accepted by the IAD which argued that as the government was statutorily obligated to pay, any undertaking to the contrary by the Applicant would be irrelevant.

However, the Applicant won the appeal on the basis of an updated letter from a rheumatologist dated August 29, 2014 indicating the condition was now stable and that the over-the-counter medication she took cost only $47.25 a month, an amount well below the threshold.

The Member upheld the medical inadmissibility finding but granted special relief (Humanitarian and Compassionate considerations). The Member was similarly impressed by the family’s attention to detail in establishing housing and transfer payments that were to be made.

Practical Tip: Estimating Drug Costs

Drug costs and equivalent treatment can sometimes be difficult to establish, particularly when the Applicant is located overseas and being treated by an overseas doctor. Many medications cost different amounts in different jurisdictions, sold under different labels and may have generic equivalents.

A good tip for Applicants or Counsel is to contact local support/non-profit groups relating to the condition that renders the Applicant inadmissible. These organizations, particularly local chapters, may have updated reports and studies which provide more accurate estimates of medical and social service costs.

It is important to recognize, particularly for negative decisions rendered abroad at foreign visa offices by foreign doctors/officers, is that the cost estimates are often done abroad and based on reports and surveys which possibly are less reliable (and possibly less individualized, local) than the ones you may have at your fingertips.

I also have this handy tool, provided to me by the kind folks at one of the organizations mentioned above, which may assist you in assessing the pre-subsidy prescription medication costs.

As stated on the website by the Pacific Blue Cross: “The Pharmacy Compass is an online tool developed by Pacific Blue Cross that may help you save money by comparing the average price for prescription drugs at different pharmacy locations across British Columbia based on claims submitted to Pacific Blue Cross over the past three months.” http://www.pharmacycompass.ca/FAQ

Once you have a cost estimated for the medication, it will be useful to do two steps. First, compare this amount to the cost threshold. In an ideal world, the cost is under $6,387 a month you may be in good shape. If the amount is slightly over, it may be worth investigating into the province’s subsidy scheme and determining the percentage paid by the government annually (reimbursed to the beneficiary). Here, your individual who is wealthy, but can’t use that wealth to demonstrate that they can pay for the costs out of their own pocket may be able to demonstrate that it affects the subsidized amount. Again, this analysis will have to be done on a province-specific basis and may not ultimately yield positive results. However, as summarized very well by one of my favourite Canadian immigration lawyers, Mario D. Bellissimo in  Chapter 11 – page 31 of Canadian Citizenship and Immigration Inadmissibility Law (2014) “The end result: excessive demands in one province may not be excessive demands in another province.”

Conclusion

Medical inadmissibility is a fascinating area of immigration law, one that is constantly changing based on changes to our health system and our knowledge of scientific treatments.

From what I have seen of it so far, it is often one of the most controversial. Medical inadmissibility cases often make it to the front page of the media, for the devastating affect it has in separating families.

I think it is an area where more case law will emerge, as applicants and counsel are better prepared to challenge the legal validity and put forth strong humanitarian and compassionate grounds for how they are not excessive burdens on the Canadian health system.

Let’s see what happens. Excited to see what happens to our case!