Category Archives: Canadian Immigration Law Blog

Verifying Departure from Canada and Preventing a Deemed Deportation – There Must Be a Better Way to Do It

Quotefancy-5491-3840x2160

Canada is in the midst of finalizing preclearance agreements and exit control that will, in my opinion, be a game-changer for immigration.

Such a system, if implemented correctly, would make Canada Border Services Agency’s (“CBSA”) ICES Travel History reports more comprehensive and accurate. Individuals who do not meet the residency requirement would be held accountable for their dates abroad rather than hide behind the veil of uncertainty and passport stamps. Litigation over the exact number of days spent abroad will become a thing of the past. Ideally, as it is in many countries, a check in with CBSA would occur exist on the way out, allowing individuals who require it, to verify their departure in the context of a removal order.

The Procedure

In the interim, however, there is a huge gap that I think needs to be fixed with respect to departure orders, which are considered the low scale of departures from Canada.

As it stands, when an individual is issued a departure order from inside Canada (for example after an Immigration Appeal Division decision that the individual has not meet their residency obligation or met the threshold for discretionary relief), that individual has to meet with a removals officer at Canada Border Services Agency and provide documentation that allows for a Certificate of Departure (“IMM0056B” or “56” at CBSA commonly refers to it) to be issued. This “enforces” the removal order.

Without getting a 56, an individual, even if they voluntarily leave, has not complied with the requirement for voluntary compliance if they do not arrange a meeting with CBSA and get issued a 56. Their removal order is unenforced (R.240 IRPR). This has even occurred in cases where an individual checks in at the POE with CBSA, although ENF-11 Verifying Departures expressly states that an Officer should enforce a departure order.

As a consequence, if the individual has left Canada prior to the final decision or the decision is rendered on the same day the individual happens to be traveling, is they are effectively declared to have not voluntarily complied and can do nothing to keep their departure order from deeming into a departure order per R. 224(2) of the Immigration and Refugees Protections Regulations.

Pursuant to R.224(2) of the Immigration and Refugee Protections Regulations a departure order verified at a visa office outside Canada, regardless of whether within or beyond the 30-day applicable period, must be enforced as a deportation order.

The 56 can be only issued after an application for an Authorization to Return to Canada (“ARC”) which now must accompany any future application to return to Canada.

There are occasional exceptions that are granted for individuals (usually in the context of accompanying family members to principal applicants) to report their departure. However, these appear to be granted on a case-by-case basis.

My Thoughts

I entirely understand and respect CBSA’s need to facilitate the removal order process. However, I think it creates an incongruity where the punishment does not fit the crime.

Individuals that challenge their departure order for residency  non-compliance, in a majority of cases where there is a valid legal basis for doing so, are challenging on some sort of humanitarian and compassionate ground. Often times, this is an ill family member or presence of some compelling reason to be outside Canada. Sometimes these events meet the threshold for discretionary relief, other times they don’t. Still, I would submit that on the scope of immigration non-compliance, failure for a permanent resident, to meet their residency obligation is relatively low. Indeed, in many decisions, IAD panel members comment that there is no hardship in the individual returning as a visitor on a multiple-entry TRV.

To issue these individuals a deportation order is, in my mind, too harsh. This is particularly the case where it is entirely uncertain how long a decision will take to render. This is not in the control of the individual seeking to voluntarily comply. Indeed, some individuals who have a feeling that their appeal will be dismissed will need to take steps to facilitate return to their home countries. I don’t think this needs to be discouraged, per se.

I think, with a little coordination from CBSA and IRCC, there could be a secure, collaborative process for an individual to prove that they left Canada voluntarily pursuant to a departure order.  A one week window (for example) could also be established to allow the individual to return to Canada on their permanent resident card and formally sign away their permanent residency upon entry. More Officers overseas could be provided delegated authority to sign off on paper work.

It is my hope, again, that exit controls and pre-clearance or perhaps written direction provided to all applicants about the consequences or requirements around leaving before a hearing is over, can be provided. I don’t think the end (deportation order) are justified by the means in these situations. We can do better.

 

International Students – My Latest NCM Piece and the Pre-Edited (Elongated) Version

For those that have been following my work over the past two years, international students (and graduates) have become a huge part of my practice. Through my work I have gotten to speak to hundreds of international students about their experiences and their struggles. With my own wife now an international student, I see the challenges on a day-to-day basis.

I wrote this piece for New Canadian Media because I felt the stories of international students were not being told. The last thing any of them would do is contact media and many, before we pursue federal court to fight their refusals, always worry about their record and their future in Canada. They have told me about their episodes of depression, lack of support, few friends, and frankly it’s a devastating story. This has been compounded by media constantly citing international students for a multitude of societal ills. Most of these ills, I humbly submit are the fault of our entire society of which international students are just a subset.

Check out my piece here —http://www.newcanadianmedia.ca/item/40286-listening-to-our-international-students-listening-to-our-international-students

Limited by space, and edited, I left out a lot of things in the final piece for NCM which was well-edited by their Team. I wanted to put the original version below (raw, uncut, with no headings) so you can see some of my thoughts in more fuller form.

Why Canada Needs to Do More to Protect International Students

Over the past year, Canada’s 400,000+ international students, particularly those in major metropolitan cities such as Toronto and Vancouver, have been subject to intense criticism. They have been blamed (directly and indirectly) for being a major contributor to such social ailments as overheated rental markets, unaffordable home ownership, abuse of public services, cheating, and unsafe roads (just to name a few).

A bulk of these criticisms are focused, as understandably Canada is only recovering from her post-census statistical dark period, on what we can label as anecdotal accounts. These accounts come from professors who study and interview as part of their work and anonymous, retired institutional instructors who can now share stories with no need to self-censor. These accounts come from positions of privilege.

There is no reason to doubt the credibility of these individuals and experts or deny that international students, just like all young Canadian students regardless of citizenship, probably in some way contribute to the social challenges we are dealing with. Indeed, by issuing them visas, they become guests at our proverbial dinner party.

However, what bothers me, as the product of an immigrant who came as a Canada international student in the late 80’s and as someone who is now married to an international student, is that this ‘blame narrative’ is just one side of the story. In drawing many of our conclusions, we have not been good listeners of international students. In fact, we generally have silenced their perspectives and ignored their challenges.

To begin, it is easy to forget, with every news story attaching immigration status to the identity of the wrong, that the majority of Canadian international students are bona fide, meaning they are compliant with rules and regulations.  In 2014, when it was estimated by the Canadian Bureau of International Education there were around 336,000 students, Citizenship and Immigration Canada (as it then was called) estimated that there were 20,000 students at high-risk of non-compliance. This accounts for only about 6% of all students admitted into Canada. One would never guess this by reading mainstream media accounts.

Next, it is important to sit down and listen to the challenges of international students and share their stories as well. I believe this task is incumbent on my journalist friends to take on, which I hope this piece will stir. In my legal work advising international students on their immigration matters, I have had the opportunity to become trusted advisor and hear these stories. From first hand experience, I can tell you it takes work for them to share with me their stories in their own native language, let alone share with their own family members and counsellors and teachers in their non-native language.

From my work, I have noted the major barriers faced by international students as follows:

First, Canada’s own immigration policies have made it difficult for international students. On the front end, the financial requirements on international students are prohibitive, in many cases. Students generally need to show one year of international tuition (usually four times domestic tuition), funds for room and board, and at least CDN 10,000 additional dollars per applicant (and accompanying family member) just to be approved for study permits. Many of the world’s best, those with the stories of growing up in abject poverty and studying by candlelight, realistically can only study in Canada if they are given a full-ride scholarship to do so. By focusing the attention on what amount to ‘wealthy students,’ the fact that some of these students come with no motivation to study cannot be of no surprise. If we genuinely want better quality students with long-term intentions of becoming Canadian permanent residents and Citizens, Canadian immigration should provide more pathways for these prospective world-class students.

Once a student is here, Canada currently has a restrictive requirement that students ‘actively-pursue studies.’ While I believe the initial intentions of the regulatory changes were good, in practice it has hamstrung international students and in an alarming number of cases has even led to the removal of students from Canada. Educational institutions now have two-tiered policies, where international students are subject to what I believe is excessive (and costly) monitoring and reporting requirements with Immigration, Refugees and Citizenship Canada. Depending on the institution, international students have to take certain number of courses and maintain a certain attendance rate, while domestic students do not.

I entirely disagree with this two-tier system. I believe in substantive equality for all students and I think that equal treatment is in line with Canadian values. I often use the example of my own undergraduate studies, where I took an economic history course. Due to my intense course schedule that year I went to three classes all semester – one to get the syllabus, one to hand in the term paper, and one to write the final exam. With my 5% attendance record in the course, if I were an international student, I would likely have been kicked out and possibly expelled or removed from Canada. Students with family emergencies, mental health episodes, or who simply want to explore a different area are left helpless by restrictive and, ultimately, unclear policies.

Finally, once nearing graduation, eligibility to continue in Canada and obtain a post-graduate work permit for which permanent residency in almost all cases depends on, is tied to the individual’s past ‘full-time and continuous’ study. The way these Regulations work make it imperative for the international student to have remain enrolled at all times. Students with financial difficulties, who do poorly and fail classes, or who simply have been to different institutions and in different programs trying to figure out their pathway often face challenges at this stage.

Second, there are major societal barriers against international students. I have worked with many international student advisors who have told me anecdotal stories of students breaking down in their advising sessions as a result of mental health issues. Without family and often adequate knowledge to seek professional help, these students are particularly vulnerable. A common theme from students that have seen me is that they are receiving poor academic support services and have even been subject to discrimination due to their country of origin and their inability to speak English fluently. I think all Canadian institutions need to do more to make their faculty more diverse, and their student services more culturally sensitive and accessible to those dealing with the challenges of being temporary immigrants to Canada.

Finally, and it has to be acknowledged, there there is an underbelly of poor, and in some cases fraudulent, third-party services to international students. Many of these purported advisors are untrained and unqualified educational consultants and agents, many of whom operate abroad without any regulation or in Canada with little care or attention paid by regulating bodies to their practices. They charge exorbitant fees, often keep international students entirely in the dark, and structure their arrangements so students assume and absorb all the risk. International students, especially when in desperate situations and without family or friends to assist them, find themselves trapped in cash schemes. These advisors are paid by the institutions and potential employers to set the students up, without full disclosure to their client, the student. Inevitably, if not now than later on, these students find themselves in situations akin to fraud or misrepresentation, for which there are severe criminal and immigration consequences.

Regardless of the economic questions and the political questions raised by student immigration, we must not forget that these students need to be represented in the decision-making process. We have seen as an example down south, what happens when immigration law is mandated by public opinion, fear, and top-down orders.

If we continue down this path of blaming and not accommodating, I foresee only increased fracturing within our already fragile mosaic.

List of Post-Graduate Work Permit Eligible Designated Learning Institutions in British Columbia – September 2016 Version

In what I think is great move that should be paralleled by other provinces,  Live Learn BC has posted on their website a link to institutions that are accepted for the Post-Graduate Work Permit Program (“PGWPP”).

pgwpp_eligibility_in_bc_-_updated_september_2016

I have reprinted the list below:

Accepted Post-Secondary Institutions for the Post-Graduation Work Permit Program
BRITISH COLUMBIA– Revised September, 2016
Public Institutions
 British Columbia Institute of Technology
 Camosun College
 Capilano University
 College of New Caledonia
 College of the Rockies
 Douglas College
 Emily Carr University of Art and Design
 Justice Institute of British Columbia
 Kwantlen Polytechnic University
 Langara College
 Nicola Valley Institute of Technology
 North Island College
 Northern Lights College
 Northwest Community College
 Okanagan College
 Royal Roads University
 Selkirk College
 Simon Fraser University
 Thompson Rivers University
 University of British Columbia
 University of Northern British Columbia
 University of the Fraser Valley
 University of Victoria
 Vancouver Community College
 Vancouver Island University
Private Institutions
Private Institutions Authorized by Provincial Statute to Confer Degrees – Specific Programs Only
 Acsenda School of Management
o Bachelor of Business Administration with Concentrations
o Bachelor of Hospitality Management
 Adler University
o Master of Arts in Counselling Psychology
o Master of Arts in Organizational Psychology
o Master of Arts in Community Psychology
o Master of Counselling Psychology
o Master of Counselling Psychology: Art Therapy
o Master of Public Policy and Administration
o Doctor of Clinical Psychology
 Alexander College
o Associate of Arts
o Associate of Science
 Art Institute of Vancouver
o Bachelor of Design in Graphic Design
o Bachelor of Applied Design in Interior Design
o Bachelor of Science in Game Programming
 City University of Seattle
o Bachelor of Arts in Management
o Master of Counselling
o Master of Education in Leadership and School Counselling
 Columbia College
o Associate of Arts
o Associate of Science
 Coquitlam College
o Associate of Arts
 Corpus Christi College
o Associate of Arts
 Fairleigh Dickinson University
o Bachelor of Science in Business Administration
o Bachelor of Science in Information Technology
o Bachelor of Arts in Individualized Studies
o Master of Administrative Science
o Master of Science in Hospitality Management Studies
 Fraser International College
o Associate of Arts
 New York Institute of Technology
o Master of Business Administration
o Master of Science in Information, Network and Computer Security
o Master of Business Administration (Finance & Tourism)
o Master of Science in Instructional Technology
o Master of Science in Energy Management
 Quest University Canada
o Bachelor of Arts and Sciences
 Trinity Western University1
o Non-theological degree programs ONLY
 University Canada West
o Bachelor of Arts in Business Communication
o Bachelor of Commerce
o Master of Business Administration
1In addition to being a theological institution, Trinity Western University is authorized to offer secular degrees.

Why this is so important is that Officer processing for students, particularly of private colleges and university, has been inconsistent. Some designated learning institutions (remember just because an institution is designated, does not mean they are eligible for the PGWPP), were actively advertising to their students and the public that post-graduate work permits were available. In other institutions, students would submit post-graduate work permit applications regardless of school policy and would in many cases receive it.
This obviously creates a system ripe for problems and, unfortunately in some cases, even fraud.
Dissemination of clear information and hopefully the sharing of this information with IRCC officials who process the post-graduate work permit applications will make a big difference to ensuring that the PGWPP works effectively and students are incentivized to pursue quality education at an institution that is held to higher standards of review. It protects all stakeholders and, most importantly, it protects international students who are vulnerable to misinformation.
Students, particularly before enrolling in private colleges, should ensure their programs are on the list of eligible PGWP programs.
I suspect this list to expand, and I would be happy to assist educational institutions looking for advocates and immigration advice to try and get on the designated list.

Life as a Canadian Immigration Lawyer – Is it for you? (Follow Up)

Life as a Canadian Immigration Lawyer – Is it for you?

Last year I had the unique privilege of being part of Mark Holthe’s awesome podcast. For those that don’t know Mark, he’s an incredibly warm-hearted, passionate lawyer practicing in Alberta and I would argue is among the “go-to’s” for business immigration matters in this country (caveat: outside of our Firm’s lawyers of course!)

Since recording the podcast and sharing my experiences with Mark, I have had a lot of law students, NCA’s, and even young lawyers looking to transfer practices ask me about practicing immigration law. I an humbled that they enjoyed listening to my podcast appearance. I have also had several months (during my social media hiatus) to think about what I was doing with my practice.

In this post I just wanted to add a few more reflections from the Mind of a Young Lawyer looking to make a big impression in the deep sea of very competent practitioners. No short order and indeed a very daunting task!

I also wanted to share with all of you a few areas of my practice I am hoping to grow and expand. I’d love to chat with young mentees and indeed I am engaging a few to assist me on some projects. Over the next little bit, you will see my blog develop into a stronger Hub for discussion. In addition to being a safe place for immigrants to chat, I want to better highlight some of the immigrant narratives and tackle the ‘elephant-in-the-room’ topics such as racism and diversity.

Without further ado, here are a few more lessons from my last year in practice:

Lesson 1: Building Client Relationships

I want clients that work with me to know they are getting someone who is literally stepping into their shoes. For couples, I’m an immigration third wheel. For individuals, I become a trusted advisor and mentor. I want you to call me when things aren’t going right or you have questions. Both uncertainty and overcertainty are terrible feelings that could lead to terrible consequences. I like providing that middle ground, where a client is certain of the possibilities and have their pathways and back up plans drawn out, yet at the same time are aware and are educated in the often tumultuous, discretionary landscape that is Canadian immigration.

For me, building client relationships is also about learning life stories and engaging head-on in cultural conversation. There is some narrative underlying every application, every individual, and every business. Clients bring their cultural expectations and cultural assumptions into the mix. I need to set aside my own preconceived notions but appreciate the gaps that can exist and counsel them accordingly.

I often here my lawyer colleagues (some of the at bigger firms) complain about no face time. I can assure you immigration law, and particularly handling individual client files is the complete opposite reality.

Lesson 2: Learning to Manage Emotions

Emotion is not bad. I’m an emotional guy. It’s part of what makes me do what I do for a living.  I have used pleas to emotions in at least two key moments I can remember, both involving oral submissions made to CBSA officers, to secure positive results.

However, mismanaging emotion or turning real-life immigration into some sort of a pass/fail course is not useful. Understanding client emotions, means paying attention to their words and their communications. Knowing their likes and dislikes. Similarly, when dealing with immigration officers, bureaucrats, and other professionals, it is important to be adaptable to the circumstances.

It is important to know that emotions can only go so far. In an appeal process you can play to emotions, but ultimately you can focus on it to much and forget to cross your i’s and dot your t’s.

From a practitioner standpoint, keeping level-headed helps develop a longer-term, more sustainable practice. I have been grateful to learn this, especially from colleagues such as Steve who seem to thrive under pressure and be wholly unfazed.

Lesson 3: Knowing Your Stakeholders

I think knowing how to escalate, knowing when to escalate and when not to escalate, and knowing how to navigate the world of stakeholders is so crucial. I look at some of my mentors (Steve, Ryan, Peter, Chantal, Raj, Peter E, Mario B, Ronalee, just to name a few) and I believe this is one of their greatest traits.

They are able to streamline processes to ensure employers, applicants, translators, family, members of parliament, CBSA, IRCC immigration officers, hearings officers, Department of Justice, IRCC program managers, overseas program managers, and litigation experts etc. all are coordinated on challenging matters. Especially on the more difficult cases this is incredibly important.

Lessons 4: Knowing to Be Concise

This is was one of the hard lessons I learned. I would have to say it was a two-stage lesson. Law school taught me a bit about being concise. I did my Bachelors in International Relations, but primarily History. I learned how to craft narratives and research from limited sources. However, a lot of history was in turning a small historical moment or a short period of time into a large thesis or paper. In Law School, I was taught at an early stage by one of my big sister mentors Jules, that marking was a bit of a video game. You had to hit the points.

This is even truer today in practice.

In law, particularly immigration law from an application standpoint, I find that getting to the point is so crucial. Recently, as I am sure many of you have learned in the courses, judges at all levels of court are focusing on rendering shorter, easier to read decisions. Even at the Supreme’s, I find judgments are much less verbose (and arguably less academic) than years past. Practicality is a virtue.

I still have a long way to go in this area but it’s very important for Canadian immigration law. We forget that the Immigration Officers (and often even hearing officers) we deal with are not lawyers yet are trained to catch the A, B, C’s required for them to render their decisions or agree on consent. Trying to be too nuanced or too cheeky or trying to speak down to a decision-maker can yield undesirable consequences.

Lesson 5: Knowing Your Laws and Regulations Inside/Out

This is in my mind what separates the amazing practitioners from those who dabble. Immigration, from a conceptual level, is easy to understand. There are only so many applications. The website is full of instruction guides that purport to break immigration down to easy steps and checklists. It’s a system meant for the layperson. However, followed blindly or worse yet, inaccurately, mistakes can easily occur.

Members, judges, decision-makers, and border officers will all know the regulations or have their interpretation as well. Contrary to what it may appear, there is actually a whole lot of grey in Canadian immigration. One of my favourite parts of immigration is working through the grey area.

For example, I’m currently in litigation on two provisions of legislation and regulation relating to the definition of an ‘assignment’ and the working for a Canadian business abroad exemption to the requirement to for permanent residents to spend two out of five years physically in Canada.

This provision itself is a microcosm of the story of immigration. It was introduced as a good-will gesture to recognize the fact that some Canadian permanent residents needed to work abroad for Canadian companies and could not maintain their status. Later, this status was abused and misused by several Canadian ‘companies’ as a way to help permanent residents remain abroad while maintaining their status. Today, this exemption is one of the most difficult to establish. Contracts purporting to support valid transfers must be drafted to a ‘T.’ However, the case law has itself been in many cases in consistent. Decision-makers have taken cases which turned very much on facts to now stand as large, catch-all concepts. This area of the law is very much messy and ripe for the type of litigation my client is currently launching.

Similar parallels can be drawn in the realm of international student litigation, likely to the litigation that will arise from the new sponsorship processes, and likely with employer compliance (an area I’d like to develop greater core competencies in).

What Does 2017 Hold in Store for Me?

This year I hope to work to be a more patient practitioner. I want to pay more attention to detail and also be better at streamlining processes and providing clients with more accessibility but more effective advice and communication, particularly in a virtual setting.

In terms of areas, I am really trying to challenge myself to be a better litigator. I really enjoy immigration litigation but I can’t purport to be blessed with natural talents.  I need to spend more time in the trenches, particularly reading case law and the laws/regulations, to carvel out stronger more, novel arguments in Federal Court. In my appellate work, I want to be better at organizing documentary evidence to support my client’s cases. Often times, it’s documentary nuances and details that make or break appeals and I want to become an expert at decoding and predicting issues. I would also like to add a human rights/Charter component to my practice but I know that will take time.

Overall, I want to continue to ensure my practice is client-focused. As many young practitioners I face the dilemma of building a business that is volume driven and building a client-base and set of experiences that is results driven. Overburdening on volume negatively impacts results UNLESS time is better managed, processes better handled, and ultimately more effort is put in as an input.

I also want to develop closer relationships with my clients. I’ve started a new tradition of having lunch or dinner with clients who successfully obtain permanent residents after my help and I want to continue this trend. I see clients through some of their darkest moments. Being able to share a meal at the end of a long journey, once they are carefree, is simply my definition of happiness.

As I tell all my clients, I cannot guarantee the results or predict the future (too much has happened in practice and in my greater life for me to even believe I have that power), but I believe in leaving it on the line. I was never a good athlete, but this is one sport I am determined to thrive to be better in.

With love,

Will

 

IRCC’s Parent and Grandparent Sponsorship Process 2017 – Preliminary Thoughts/Critique

post-cover-picture

Expression of Interest – Possible Issues

Immigration, Refugees and Citizenship Canada (“IRCC”)’s Expression of Interest Webform is now open  (until February 2nd).

It asks for only the following information for those wishing to participate in the random draw of 10,000 applicants:

  • Last Name;
  • Given Name;
  • Date of Birth;
  • Country or Territory of Birth;
  • Main Home Address;
  • Postal Code;
  • Email address;
  • Email address (re-entered); and
  • Digital Signature.
interest-to-sponsor-web-form

Initial Concerns

One of the major concerns raised by those by several lawyers (including one of my mentors, Chantal Desloges in this CBC article). is that with the current expression of interest system we will likely see a lot of those selected deemed ineligible or not meeting the requirements. As Nova Scotia Immigration Lawyer Liz Wozniak tweeted (on point, I may add), the Parent and Grandparent sponsorship program requires “less information than an eTA.”

One of the challenges, I see is that without the forms or the back-end of the process being made available to applicants now, it is difficult for interested applicants to even predict what the process will look like. I think in future years IRCC may be wise to put up all the update forms and process first before accepting interest. I’m also a fan of having some sort of preliminary questionnaire (similar to Express Entry) to at least assess baseline eligibility. I understand the privacy concerns of having individuals disclose income on an initial form but at the very least I think individuals who are interested should demonstrate that they are aware and knowledgeable of the requirements before they click submit. I have had several individuals contact me wondering if all they need to do is put their name in the hat. I have cautioned them to read about the program first before doing so.

Minimum Necessary Income to Sponsor Parents and Grandparents

One of the major stumbling blocks that I see, particularly in today’s economically challenging environment, is the meeting of the Minimum Necessary Income (“MNI”) to sponsor which is equivalent to the yearly Low-Income Cut Off (“LICO”) plus 30% and differs based on the number of family members in a household (including the ones you plan to sponsor).

As of the date of this post, IRCC has not put up the updated Parent and Grandparent MNI for 2017, which should be based on Notice of Assessments for the years of 2015, 2014, and 2013. Eligible sponsors (and their co-signer spouses if applicable) must meet this amount for each of the three years and as well meet and exceed for the years in which an application is in processing until the parent or grandparent has their application approved. Historically, at some visa offices, this could mean the next three to five years with the MNI more often than not increasing each year.

We know this much about previous years:

must-meet-lico-requirements

For 2017 we can estimate as follows (my table below):

2017-mni-for-parent-sponsorship-excel

This is based on the LICO figures put up by IRCC in the Federal Income Table, 2016:

lico

As per Guide 5722 (which hasn’t been updated for 2017 yet), the calculations for self-employed and also the quirks between period of employment and unemployment within the 12 calendar month period where you are supposed to show your available income, is not as straightforward as it appears and does require some careful reading.

12-month-period-available-income

Living in Canada Requirement

I also think greater clarity needs to be included about the “living in Canada” requirement.

live-in-canada-requirement

I did several consultations last year relating to refusals where the individual left Canada (due to school or work) during the process of sponsorship and then struggled to provide sufficient answers to procedural fairness letters.

Concluding Thoughts

As per my article back in December 2015, and reflecting on it more, there’s absolutely no reason why we cannot due a split system. Dividing the quota into a first-come first serve, a random draw, and a discretionary humanitarian and compassionate grounds/urgent family unification. Perhaps more needs to be done to facilitate the parents and grandparents of recent refugees, who will not have met the MNIs based on their recent arrival and likely have the greatest need for an additional helping hand for their young families.

Canada’s New Spousal Sponsorship Forms/Process – The Good, The Bad, and The To-Be-Determined

With the new Spousal Sponsorship Process having been formally rolled out, it is a good time to look at the changes and share some insights about what I like, what I dislike, and what I’m curious to know more about or see in-action moving forward.

CHANGES – AN OVERVIEW

I will defer to IRCC and their handy charts and guide to explain how things have changed.

comparing-two-processes

My understanding is that the focus on the new process was on eliminating unnecessary or duplicating forms, reducing the length of guides and other forms, and changing around the order of the process to avoid new medical requests or expired police certificates that would delay applications.

Importantly, for applicants, the processing times are projected to go down to 12 months for 80% of applicants. Prior to these changes, as illustrated, in-Canada applications and applications at select visa offices abroad took longer to process, many times 26 months and beyond.

Indeed, one of the major incentives for individuals who lived in Canada with status was to still pursue the Outside Canada process was that decisions would be made faster than they would inside Canada while preserving appeal rights.

Specifically, the changes are as follows:

changes-overview

THE GOOD

Less Onerous Front-End Requirements

I like the movement of medicals and police certificates to the back end. I also like the fact that less forms are required.

Within the forms, there is less requirements for supporting evidence and now Applicants will be limited in the number of pages of documents and photos they send in.

However, I think that it will be useful to add more clearer instructions to applicant to begin gathering those documents well in advance. In some countries, the police certificates can take several months to obtain. These certificates could then delay the process well over a year. The reality is, the police certificate process is more onerous in countries with stricter governmental controls over information or increase bureaucracy/control around individual movements. In these countries, there is the added challenge of getting adequate translations or certificates that all can rear their ugly head into the process.

Better Forms and Clarification

The creation of one set of instructions (rather than two) in mind is a positive factor. Instructions are now much clearer – aesthetically and in terms of content.

The revised Document Checklist (although requiring more filling in) is now split into one for spousal sponsored spouses and one for common-law sponsored spouses.

Spouse Checklist

spouse-sponsorship-required-docs

Common-Law Check List

common-law-spouses

I still suspect (in the transition period) a little confusion over the two out of three and three out of four requirements in the above forms. Reading the fine-print becomes even more important now.

It will be interesting to see how this affects completeness of application (see below) and also whether documents will be rejected for not entirely meeting one of the criteria and thus necessitating a whole new requirement of additional information. Specifically, proof of important documents showing same address seems very broad.

Four Month Processing for Spousal Work Permit

The guide is also promising four month processing which is an improvement on the six months (and often longer) that was the earlier standard.

four-month-processing

As you may have read from my previous pieces, I am a huge supporter of more bridging options and the fact that all spousal sponsorship where the Sponsor has been approved should facilitate some sort of visa to allow temporary reunification.

THE BAD

Basic Guide Leaves Out Important Information Found in Comprehensive Guide

Immigration, Refugees and Citizenship Canada (“IRCC”) has two guides out – Guide 5525 (the “Basic Guide”) and Guide 5289 (the “Comprehensive Guide”). The Basic Guide essentially attempts to summarize the information in the Comprehensive Guide in an shorter/easier to read format.

As my good friend and legal colleague, Ronalee Carey, points out – there is a lot left out in the Basic Guide which if relied upon without consulting the Comprehensive Guide can create major problems. She highlights the fact that the basic guide ignores the exemption for Minimum Necessary Income pursuant to R. 133(4) of IRPR.

She also highlights the way that it is not accurate/nor clear when an individual should be applying outside Canada or inside Canada, specifically where an individual has legal status in Canada (student, worker) and can apply outside Canada for the purposes of preserving appeal rights and possibly seeking faster processing at a less-burdened outside Canada office.

The Basic Guide states the following:

spouses-staying-in-canada

This issue appears to be repeated in the forms.

imm5533-excerpt

I would suggest however that even in the interest of space, it is important to re-iterate that the decision of which process and the consequences are much more important as we discuss immediately below.

Incentivizing Inside Canada without Explaining Legal Consequences

This is likely the biggest issue I see with the new system.

As per OP 21 – If a Canadian citizen or permanent resident makes an application to sponsor a foreign national as a member of the family class, and the application is refused, the sponsor may appeal the refusal of the application to the IAD [A63(1)]. The sponsor must be given the reasons for the refusal and also told of their right to appeal the decision to the IAD.

screen-shot-2017-01-03-at-6-41-57-pm

If IRCC were to go very strict and start refusing inside Canada applications for misrepresentation or even rejecting/refusing applications for genuineness or document sufficiency, these applicants (or their sponsors) would be limited to judicial review or seeking reconsideration.

I believe that there are still very real reasons to apply for the outside sponsorship process while inside Canada that are not explored in the instruction guides as they currently stand.

Not Enough Information re: Public Policy and Importance of Staying in Status

There are a couple areas where the status or maintaining of status for sponsored applicants it important:

remain-in-status

And this:

working-and-studying-comprehensive-guide

However, in my opinion it is not enough. Very few applicants I talk to know about IP8 – Manual and have read the public policy (pages 64-79). I think there should be a greater onus on IRCC to educate on a very important provision.

spousal-policy

In fact, in a case I dealt with last year, the Call Centre instructed an inside of Canada spousal applicant who was out of status to turn himself into the Border, a move which would have been devastating for their future in Canada.

There needs to be clarity on “out of status” spouses for inside Canada to be more effective, particularly in the stricter manner in which they are assessing application completeness (see below).

Technical Issues

Normally, I would put something like this in the “to-be determined” category, but my predictive wisdom tells me that if Express Entry and the eTA are any indication, there will be major issues with linking accounts and the receipt of email documents.

One of the changes is that the Schedule A is now being moved to a mid-processing requirement, requested after the linking of a paper application to the electronic system.

I have seen linking issues time and time again delay Electronic Travel Authorizations and Express Entry Applications. It will become very crucial for applicants to accurately and adequately keep record of what they submit for their sponsorship and at the very minimum keep a copy of their physical application.

Also, with technology even the type of internet browser used can affect the process.

For example with Mozilla Firefox right now, the select your documents page looks like this:

firefox-list-of-countries

Where as with Google Chrome, and it as it is supposed to look like, the select your documents page looks like this:

chrome

Incomplete Applications

IRCC has indicated that it will take a stricter approach to returning incomplete applications and have emphasized that in order to meet processing times, they may not be as generous with making information requests.

If Express Entry is any indication (where early estimates in the first year of roll out were that in the bull-park of 25% of applications were returned as incomplete), this could be a serious problem. This is particularly true for out of status spouses in Canada or where a refusal will leave a client out of status.

Again, I think more clarity needs to be introduced clarifying the completeness check process for spousals and also what an out of status spouse can do in the circumstances.

I can see very real situation where an Applicant submits only 3 out of 4 where the documents require 4 or prove only 1 out of 3 instead of 2 out of three of one requirement. If they mail this application in, they may only find out months later when the individual then begins to run into status problems.

Is an application where the individual sends more than the required documents considered incomplete and returned? How strictly will some of the requirements be enforced?

THE TO-BE DETERMINED

Who Falls into the 20%?

It will be interesting and I hope IRCC does some tracking to see what type of applicants fall under this – if specific nationalities or visa offices are not meeting their targets or if specific type of relationships (long distance, inter-nationality etc.) trigger delays more than others.

The fact is that many visa offices will follow-up with much more onerous documentation requirements. For example, Hong Kong asks not for a 10-year personal history but for a personal history since the age of 18. Many relationships that I see now begin with a Canadian having met the accompanying spouse while living/studying/visiting/working abroad. They marry early, based on their inability to spend time with each other and a source of commitment to each other, and finally they try and apply visas which get refused for inability to demonstrate dual intention. It’s a cycle that is very difficult to break with subsequent re-applications.

Online relationships are more frequent now. There may be a meeting in-between, but the entire relationship cannot be understood in 20 pages or 10 pages. How are these relationships going to be assessed, particularly inside Canada?

These marriages are understandably difficult to assess. Interviews (performed abroad) are high stress and particularly unrepresented applicants are wholly unprepared for the type of questioning that often can occur.

For those 20%, this new process may give them less opportunity to front-end proof. My hope it is that visa offices will give increase procedural fairness, but that will have to be seen as the system rolls in.

How will Temporary Resident Application Increases and Public Policy Cases Affect the Overall Immigration System? What Happens When In-Canada Gets Backlogged Again.

I recently applied to sponsor my wife. She had valid student status in Canada for a year (which we looked to extend) and for us avoiding the in-Canada backlog was the primary motivation. Hong Kong has been historically processing sponsorship applications quite fast and while we wanted in-Canada processing we weren’t surprised or disappointed.

The way the new program is being marketed, there is absolutely an incentive created towards applying in Canada. For those with Electronic Travel Authorizations (“eTAs”), I would suspect more visits to Canada first and then applications inside Canada. For those applying outside Canada, I would suspect many would want to seek study permits or Temporary Resident Visas (“TRVs”) first and then apply while in Canada.

There is some talk that eTAs are now becoming must stricter for married spouses, similar to the challenges of getting a TRV once married.

There are also consequences of refusal. Where a self-rep does not understand the rules or submitted a deficient application and could use H&Cs to overcome the rules, now the only path is judicial review, where H&Cs have little to no relevance on the overall decision other than establishing the factual basis of the impugned decision’s reasonableness or fairness. I also expect a whole slew of new Document Request letters emailed/mailed but not received cases that could make for interesting litigation and arguably reshape the IRCC’s processes for collecting documents from clients.

Finally, with incentive, also comes the possibility of abuse. The situation we do not want to see, from the standpoint of legitimate Canadian couples, is an influx of in-Canada applications used as extensions for temporary statuses, where the promoted option should be to file the extension on it’s own merits and proceed with an outside Canada sponsorship.

From an A40 misrepresentation front, more needs to be done to ensure those who are practicing immigration are not creating immigration pathways based on non-genuine marriages/common-law partnerships designed to keep applicants inside Canada.

OVERALL – HOPEFUL OPTIMISM

It will take some getting used to and a lot of reading but I generally like the idea of making processes more user-friendly and the idea of better tracking for Applicants (e.g. the use of cellphone confirmations that applicants were received).

I like shorter guides, only so-far as they don’t omit important information. I think right now it does omit important information. I would stick to one guide and cut the concept of a Basic and a Full. The legitimate expectation of applicants will be that both are the same and one is equivalent to the other, which can never be the case when trying to summarize important information that is all relevant.

I look forward to seeing faster processing. Yes, I might be a little bitter that I did not apply in-Canada myself (if only I waited a month!), but I still think competent visa offices abroad play an important role in assessing a relationship and where appropriate need to step in to play investigative roles.  It’s unclear how this can or will be done when in-Canada applications become the norm.

Let’s see. It might have been too early to be writing a 2200+ word essay on a program as I have just done. Just trying to stay on-top of things for the blog followers 🙂

 

 

IRCC’s Recent Gifts and My Canadian Immigration Christmas Wish List!

christmas-296381
Canadian Immigration Santa

IRCC Has Delivered Some Gifts This Holiday Season

While the Eve has yet to hit, we have already been given a few gifts under the proverbial Canadian Immigrant’s Christmas tree. Eager to unwrap them, we find that Santa and his reindeers at Immigration, Refugee and Citizenship Canada (“IRCC”) have indeed been thinking about us, the ‘patiently’ waiting type. No doubt there have been a few naughties, but ultimately, we’re nice. [End of poetry, creative efforts].

Without further ado, here are the recent gifts:

A.              Parent Sponsorship Changes

For those who have been reading my blog prior in December 2015, I have been an outspoken supporter of parent sponsorship but also critical of the way things were historically done.

IRCC announced, just today (as of the writing of this blog post), that it will be eliminating first-in, first-out processing of parent and grandparent sponsorships for 2017. This means the courier lineup outside of CPC-M happily won’t be happening this year.

An online form will be made available from January 3 (noon EST) to February 2, 2017 (noon EST).  IRCC will randomly select 10,000 sponsors and notify them with 90 days to send in a paper application. The revised forms will be available January 9th!

Truthfully, I was a bigger fan of a split system (half first-come, first-serve, quarter by random selection, and quarter by H&C).  On a positive note, this process, at the very least, eliminates the perception that those who can pay for couriers and lawyers had a better chance than those who could not.

I still have concerns that out of the 10,000 selected (assuming IRCC puts in entry questions that weed out ineligible sponsors), there will be a significant number that do not qualify after documents are requested. However, I do like the idea that things are working on a more equal playing field.

See more here: http://news.gc.ca/web/article-en.do?nid=1168889

B.              Spousal Sponsorship Changes

For spousal sponsors and their sponsored partners, particularly those who are stuck in the in-Canada backlog, IRCC has pledged to make the process easier and quicker.

IRCC is pledging to process 80% of sponsorships within 12 months and eliminate some of the front-end processes that slowed down sponsorship (upfront medicals and police certificates), instead moving them to the back end.

Simplified forms, which are set to come out on December 15th, 2016 (tomorrow as of the time of this blog post), will apparently be easier to understand and more universal in nature.

I expect also that there will be a navigation to easier online processing in addition to the linking in this round of changes. Hopefully, the 64,000 applicants will indeed be reunited with their spouses by the end of 2017.

[Full disclosure: I have a Sponsorship application pending for my wife in Hong Kong and I now check eCAS religiously]

See more here: http://news.gc.ca/web/article-en.do?nid=1166069&_ga=1.63005480.628028154.1421368218

C.              Four Year Maximum Rule for Temporary Foreign Workers – Eliminated

Respite comes from the cumulative duration rule, which previously limited the eligible duration of work permitted in Canada on certain work permits (pursuant to R200(3)(g) under the Immigration and Refugee Protection Regulations. While there were several exceptions to the rule, individuals, particularly in lower skilled positions that needed to be supported by Labour Market Impact Assessments (such as Caregivers) were caught. The Government boldly (and uniquely) used their power under s.25.2 of the Immigration and Refugee Protections Act to create a public policy exemption from this rule.

Good news for temporary foreign workers indeed, although, still very temporary particularly for low-skilled workers looking for limited permanent resident options.

See more here: http://www.cic.gc.ca/english/resources/tools/temp/work/cumulative.asp

D.             Express Entry Changes – Benefiting International Students (and Educated Americans)

While we are still awaiting our first draw, but on 19 November 2016, IRCC changed the Express Entry  rules to award additional points to holders of Canadian degrees and benefit some employer-specific work permit holders. Holders of Labour Market Impact Assessments found themselves with less points, 400 points less if their positions were NOC “O” and 550 points less if their positions were NOC “A” or “B.” Holders of employer-specific work permits gained 50 points, assuming they had a year of skilled work experience with that employer already in the bag.

While benefiting international students, there are certainly some workers who will be completely shutout as a result of the devaluation of their LMIAs. Arguably, the changes reduce the incentive of Canadian employer support in favour of the Applicant’s own pre-qualifications. Americas under NAFTA and with higher education (we can assume high language scores) will immediately become ultra-competitive under the changes.

See more: http://www.cic.gc.ca/english/department/mi/express-entry.asp

IRCC Needs to Deliver a Few More Gifts This Holiday Season

1.            Clarifying International Student Compliance

In addition to paying four times more in tuition than their domestic compatriots, Canadian international students are in a whole world of hurt struggling to meet the increasingly rigid and discretionary application of Canadian immigration law.

To provide a few examples, 2016 saw several cases go up to the Federal Court which have confirmed (a) the reasonableness of Officer’s doing their own assessment of Applicant study histories; (b) the reasonableness of having incorrect information on the Immigration website that contradicted with Regulations that a student understandably followed; and (c) making it prohibitively difficult to restore to Post-Graduate Work Permit status for those who have received initial refusals.

There are still many other challenging provisions – unclear definitions of what constitutes “continuous,” “actively-studying,” “sick-leave”, or how a student who is awaiting the start of a program is supposed to stay in Canada. More Post-Graduate Work Permits are being refused and dragged out in processing, with students questioning whether their time in Canada was the right choice.

Demand for international students to come to Canada will continue to increase post-Trump. We need to get this right to reduce not only the harmful anxieties of international students, but also our own increasing compliance costs of regulating the system.

We have some really great minds working at IRCC on this so I’m looking forward to seeing some of the end results.

2.            Facilitating Entry Visas for Married/Common-Law Spouses – Modifying Dual Intent

I am so heartbroken this Christmas break that I have to see several Canadian spouses unable to reunite with their Canadian sponsors. In my mind, marriage to a Canadian and the submission of a sponsorship application should prima facie be evidence supporting the issuance of a temporary resident visa to facilitate interim reunification. The way the law currently works, providing only a spousal open work permit for spouses that apply inside Canada creates a major dis-balance.

The institution of marriage and partnership is changing. No longer is it the norm to marry the next-door neighbour or high school sweetheart. Individuals are meeting their wives on the internet, on exchanges, at international weddings and conferences, or on trips abroad. Something needs to be done to facilitate the entry of married couples into Canada so they can at least begin their lives together.

Dual intention is a difficult concept that is hard for many to wrap their heads around. I believe clearer policies need to be in place so that Applicant’s know exactly the type of threshold they need to meet to demonstrate this dual intent. There is far too much discretion, applied differently by different visa offices abroad, in our current system.

Should a marriage be non-genuine (or for immigration purposes) I argue there are enough misrepresentation laws that can be used to remove the bad apples or prevent their initial entry.

3.           Ending Conditional Permanent Residence – For Good

There’s not much I need to write about this. It is long overdue. There are better ways to tackle misrepresentation and marriage fraud. Forcing a couple to physically reside with each other, in the event of bona fide breakdown or where economic reasons require temporary separation, is cruel. This is an important step to protect our most vulnerable new immigrants.

4.            More Transparency With Permanent Resident Card Investigations

Some much needed light needs to be shed on the dark hole of PR Card investigations. There is a very good reason, much of the work has to be done outside of the public eye. For example, we recently saw many cases of PR Card fraud, which without the good work of IRCC, could have continued.

That being said, there are too many innocent applicants who make unfortunate administrative errors or who likely could resolve issues by sending in an additional document, waiting year(s) for a new card. Without this card, they have major issues accessing many public services. There needs to be some channels opened up to at least have a recourse for fixing things.

[Side note: Members of Parliament have direct access to information that many lawyers or self-reps are not privy too. I think this system should be made fairer and more transparent]

Three Holiday Tips for Canadian Immigration Applicants

(i)           Building Good Immigration Credit and Tracking Down Reasons for Refusal

More and more, I am seeing an increase of cases where there are technical glitches leading to the late delivery of refusals or missed emails. Applicants are out of luck on their current stay in Canada and are wondering if they should put in an application to try and drag out the process or go back. Many worry, particularly because they are from visa-requiring countries or now with the new ETA requirements, that they will be prevented from returning.

I think more and more digging up the reasons for refusal and having a reasonable explanation for overstaying or non-compliance will become relevant factors. Particularly for those with future permanent resident intentions (i.e. through a future spousal sponsorship), applicants with no-basis can create negatively credibility. I’ve been advising my clients more recently on developing good immigration credit and viewing the process more longer-term. So far this has been very successful.

(ii)         Working with Your Immigration Stakeholders Earlier in the Process

Whether you are an international student with a complicated education history or are signing your first work contract on an open work permit, it is important to have key conversations about immigration with your individual stakeholders.

Too often, clients come to see me with only months on their existing permits or days before the deadline for a work permit application indicating their employers are no longer on-board or, in some cases, are even providing negative information to immigration officers.

Immigrants, particularly younger students or recent graduates, are in a tough position of having to maintain strong stakeholder relationships throughout the process. An employer deciding to back out of support or a school unwilling to explain things on your behalf can be entirely detrimental to your future in Canada.

Make sure to work closely with these individuals and give them advance notice of your plans. If they are supportive, it may be good incentive to stay on. If they have reservations, it may be a good excuse to move on.

(iii)       Do Not Neglect a Good Appeal Preparation

Recently, I have had several consultations with clients who have engaged representatives who unfortunately did not prepare them well for their appeals at the Immigration Appeal Division. Many of them had few meetings with their representative and found themselves on the witness stand unprepared to answer important questions about their time abroad, the genuineness of their relationship, and their future plans in Canada.

Appeal preparation is hard work. For many of my clients, it involves at least a month in advance, meetings on at least a twice a week basis. Clarification of documentation, translations, and interpretations need to happen well in advance of the actual day of.

I see appeals, particularly on the residency side as IRCC tightens their information sharing capabilities, to increase drastically.  Do not neglect the preparation or having a good representative prepare you for this process.

In Closing – A Personal Update

With New Years coming up, I owe everybody a resolution to do better with this blog.  The expectations of generating new content, the amount of amazing content I was seeing on other blogs and podcast, and my own busy (and impossible) work/life balance meant this blog took a hit.

Recently I have seen many clients who have found me because of my writing. I know my writing means something and it does to me as well. I will be working over the holiday to renew and refresh to see how we can use Vancouver Immigration Blog as a more positive, progressive space. Personally, I have seen my own silence be challenged by the voices of many who are critical of immigrants of immigration. Unless we have voices to challenge scripted narratives or to negotiate the many fine lines between a conversation worth having and racism, as a city we will be stuck in a zero-end-game limbo.

You will likely in 2017 see less criticism but more problem solving from my end. Entering the profession, I came in with a misguided, nonchalant view that change can be implemented with a flick of a switch. The more and more I do this, the more and more I respect the many individuals across the country working through bureaucracy and law to effect positive change. Patience is so key to this process.

I ask all of my faithful readers for some continued patience as I revamp and rework my passion for immigrants, immigration, and the law.

With love and Christmas spirit!

Will

Post-U.S. Election Thoughts – the Tightening of Canadian Temporary Residence

The United States election is over.  Surprisingly for some, but not so surprisingly for the prophetic Michael Moore  the Donald has won. While his victory speech was perhaps an after-the-election attempt to mend some bridges torn, it is inevitable that some bridges will forever be burned. There will be Americans who will want to come to Canada, and other countries around the world, to take a secondment or a break from the messy and divisive political environment. Those are the fortunate ones. I think about the undocumented immigrants, those of non-mainstream faiths that worry about the tyranny of the majority. Those are the unfortunate ones who may not have a plane to board or be allowed to board the plane back to their homes. I speculate, of course. The Donald may surprise us and I pray to God that he does.

On the topic of Canadian immigration implications, jokingly and casually tweeted last night, I chuckled. Friends told me I am set to be busy. While I see opportunity, I also see responsibility.

My focus over the next year of my practice will be to ensure that in this time of increasing demand for Canada that the best interests of those who apply to Canada for immigration are met. That those who may not have the language abilities to apply and who rely on information supplied to them by crooked, ghost consultants, have a voice of honesty and reason to turn to.

I predict a tightening of Canadian temporary residence programs. As particularly international students and those seeking work turn their attention to Canada as a country of opportunity, our own Government has made it clear the numbers of permanent residents are not going to budge up very much.

Consequently, there will have to be limitations on the number of students and workers Canada takes. Assuming, those from the United States, with better access, understanding, and pathways to apply increase – in my mind we can expect a decrease from other source countries, China, being of them. However, demand will increase. The only solution is refusals and I want to be there to review those for my clients and see that the Canadian immigration system does not discriminate but seeks, instead, to balance global need.

I do apologize for my lack of posting. I’m actively trying to limit my social media usage, particularly as I’ve been so busy with active files. I’ve instead of writing, been doing several talks.  I hope to re-invigorate in the New Year. Until then, I pray for democracy globally and I trust the adage that “what doesn’t kill us, only makes us stronger” will be true as we move forward as one continent, and one world.

Federal Court Creates an (Incorrect) Legal Barrier for Post-Graduate Work Permit Restorers. Time for IRCC to Create the Solution.

Introduction

Mistakes happen with applications – missing documents, incorrect fees, expired passports, leading to applications being refused.

For those with refused applications, the general process is to rely on restoration,  allowing an individual to restore their status to a status they are eligible for and generally still meet the initial conditions of.

The law under R.182 of the Immigration and Refugee Protections Regulations (“IRPR”) provides the applicable regulation for restoration as follows:

Restoration of Temporary Resident Status

Marginal note:Restoration
  • (1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

  • Marginal note: Exception

    (2) Despite subsection (1), an officer shall not restore the status of a student who is not in compliance with a condition set out in subsection 220.1(1).

  • SOR/2013-210, s. 2;
  • SOR/2014-14, s. 3.
  • (a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and

  • (b) they shall actively pursue their course or program of study.