Category Archives: Canadian Immigration Law Blog

Why Staying in Canada During Your Immigration Appeal Is a Crucial Thing

I have been seeing several clients recently who ask a question about whether they should be (whether in Canada or their home country) during the process of an Immigration Appeal. This is in the context of the fact appeals are taking in some cases several years to be heard. My advice is always the same: “if you want to maximize the chances of being successful – stay in Canada.”

I want to take a little look at discretionary factors and how simply leaving Canada or breaking off your establishment can lead to several negative inferences in the weighing process. In a majority of these cases (especially misrepresentation cases and most residency obligation cases) the fact that the removal order was legally valid will be difficult to challenge. Entire hopes are hinged on whether an Immigration Appeal Division member decides to exercise discretionary jurisdiction after hearing your submissions as the Applicant.

As best summarized in the Supreme Court of Canada Decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, 2009 SCC 12 (CanLII), <http://canlii.ca/t/22mvz> at paragraph 7, the Immigration Appeal Division’s jurisdiction is based on the Ribic and Chieu factors.

“…discretionary jurisdiction to grant “special relief” on humanitarian and compassionate grounds under s. 67(1)(c) of the IRPA should be exercised in light of the factors adopted in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), [2002] 1 S.C.R. 84, at paras. 40, 41 and 90, namely:

(1)               the seriousness of the offence leading to the removal order;

(2)               the possibility of rehabilitation;

(3)               the length of time spent, and the degree to which the individual facing removal is established, in Canada;

(4)               the family and community support available to the individual facing removal;

(5)               the family in Canada and the dislocation to the family that removal would cause; and

(6)               the degree of hardship that would be caused to the individual facing removal to his country of nationality.

If we look at these factors carefully, there is one binding issue – Canada as a home base. It pains me to see so many individuals who are in appeal processes misinformed to the prospects of winning an appeal at the IAD while they are abroad.

I can see why some cases make staying outside Canada a requirement – minor children who are born abroad and who cannot obtain visas to come, sick relatives, and in some cases an economic reliance on another job in another country.

However, for those who are not in Canada significantly during the time of their appeal in addition to the time they were not in Canada during the course of the activity that rendered them inadmissible, the balance of the factors becomes challenged.

Factors (1) and (2) don’t necessary touch on Canada or establishment but given a violation occurred leading to the removal order and “rehabilitation” likely involves proving suitability to Canadian society or any active steps that may have been taken to remedy the wrong, it is difficult to see how staying outside Canada could help.

Factor (3) hits the establishment item straight on the head.  Length of time spent will be considered a negative factor as well establishment in Canada if someone decides to book it abroad.

Factor (4) will make issues difficult when you ask those family and friends for support and they will ultimately have to indicate in their letters why you are not in Canada and how you have the other positive factors (such as establishment). Leaving Canada, you will also likely break a lot of the key relationships that make someone who themselves might be sensitive to making representations to the government and exposing their name (and possibly their own immigration status) to some outside scrutiny.

Factor (5) will be negative if you (and your spouse – regardless of their status may be outside Canada. True, if they are a citizen, you may be able to fall under one of the exemptions to the requirement to physically reside in Canada. However, in the context of discretionary jurisdiction this will not add any points and in fact hurt you.

Factory (6) if you move yourself and your family overseas, have an abode, start a job, and rely on another country to support you – it will be difficult to turn around at an Immigration Appeal Division hearing and suddenly say this is a source of hardship.

The reality of the situation is, if you leave Canada – and exercise that discretion, and IAD member will likely turn around and exercise discretion to do you in on possibly all 6 factors. One of the common things cited by IAD members is alternatives to allowing you to maintain your status. For someone who simply breaches the residency obligation this may be a visa in one year and for someone who misrepresents themselves but has a spouse maybe this is sponsorship back with an Authorization to Return to Canada (although the timing of this, especially overseas, is anybody’s guess).

Some advisors will tell you to keep living life and make no changes. I would suggest that it make their advice (later on) for you to abandon the appeal easier and creates less work for them. Facing a possible removal order and later appeal is a sign (regardless of whether a member deems them after the fact actions) to start taking positive actions to bind yourself and your family in Canada.

Do yourself a favour in the appeal process and (if possible) stay in Canada to create the best discretionary conditions for your success at hearing.

 

A Little Winter Note of Gratitude – Thank You For Being Part of My 2017

IMG_4944

Dear Clients/Friends/Colleagues/Readers/Supporters/Mentors:

After a very eventful 2016 where too many things happened, 2017 served certainly as a nice respite.

Practice-wise it was a busy one.

  • I exceeded the practice volume targets I set for myself and by changing my model a little from “applying for clients” to “coaching clients to submit their applications” – my solicitor’s practice was able to touch even more clients. Litigation-wise, there were a lot of good stories in 2017. Files that been in processing for multiple years or had multiple previous refusals that we were able to turn around. Several families reunited or with decisions that will soon see them reunite.
  • My first gratitude goes to all of those clients (current and past) that I came into contact with in 2017. I thank you for putting your trust and faith in me and I hope that I imparted a little of my passion for helping others in you and your file. Regardless of if we were successful, not successful, or on the pathway to success, I hope I gave you someone that stood up and stood in when you needed. On those occasions, I fell short I ask for your grace and patience and promise to do better.
  • On that transitory note, I thank you to all my lawyer colleagues and staff at LR. Our Firm went through some major changes but to see everybody growing and building their practices and so invested into helping our clients – be them corporate or individual – it is truly fantastic. TL – my assistant – your value to my practice I do not think I can put into words. You have my back always and I appreciate that so much.
  • This year also introduced me to several very key mentors. I won’t name them (for fear of forgetting important names) but those call backs to help me walk through legal questions, those coffee chats where you provide your insights on my practice, and the time and care you have put into me has not gone unnoticed. Thank you and I hope that the new year will offer us chance to collaborate eeven further.

Outside of work, I was grateful to have the opportunity to serve the community a little in various capacities.

  • The Cultural Communities Advisory Committee (“CCAC”) of the City of Vancouver which I had the unique opportunity to become Chair of – I thank you. You are all so incredible – and your efforts have not gone unnoticed. We have made some progress (although we know we can and should do more). We have been part of important initiatives and our projects are sure to make a mark in 2018. I hope you all have a restful holidays and come back even more motivated.
  • The CBABC Equality and Diversity Committee lead by our fearless leader, Tina – thank you. You are a group of inspiring lawyers. Our monthly meetings and subcommittee meetings are times where I truly learn from all your experiences. I cannot wait to tackle some of the issues around Lawyers with Disability, Truth and Reconciliation, and Diversity in Firms and on the Judiciary we have planned for 2018.
  • The team at FACLBC – although I stepped off the board, the opportunity I had truly gave me my legal wings. You are the one group of lawyers/students I will always call family. Thank you for hosting such incredible events and introducing me to the future of Asian-Canadian leadership (not only just legal leadership). We’re in good hands.
  • The past two months teaching at Ashton have been incredible. I feel so invested in the journey of my students and they bring me so much light in the depth of winter. Thank you for caring, thank you for learning from me, and thank you for putting your efforts into the studies making my job of teaching a little easier. I truly mean this when I state that we have learned together and I continue to learn from you each every day.

I would be remiss not to mention my friends and family who have been there to guide me – especially emotionally and spiritually – through a rebuild year. I am gracious to Auntie, Uncle, Dav, Steve, Bhabs, Chantelle, Shami, and the little ones Jiya and Nia for always being a second family to me and always being there to celebrate milestones and successes. My mother and little sister, for opening our family home to our return and reminding me to keep a focus on health and balance. Last but not least, my other – my partner-in crime, the Bonnie to my Clyde, Olivia for her endless support. She is my rock and this year having seen her grow into an HR professional has been the single biggest accomplishment for our family in 2017. The future is so bright for her. I thank her employers, Alliance Maintenance Ltd. as well for being such incredible mentors and a fantastic business to work for.

Finally, a year end message would not be complete without putting some hopes for 2018. While my deepest, privatest hopes I will keep for my capsuled New Year’s Resolution (which Olivia and I share with one of my best friends from law school, Afsoun – ever year) – for 2018 – I can certainly share a few of them.

1) I want to go back to the roots of helping people through their difficult immigration situations. 2017 saw me focus a little too much about doing more through being busier. 2018 – I will look more inward, be more thorough, and learning to be a strong litigator. Those areas I initially feared I now feel stronger about. I want to be braver lawyer.

2) I want to start getting back into more writing. I will write more blog posts and hopefully start working on the many novel, poetry, etc. ideas I have brewing. I cannot allow myself to lose my creative edge.

3) I will get back in shape and actually go to the Gym when scheduled in my calendar. I thank Joe, my amazing trainer, for pushing me but now its on me to prove that I can sustain this and that physically I can do more than I have demonstrated.

4) I will be a better mentor and take better ownership over my commitments. This is self-descriptive but again – casting too wide a net with too many holes allows the little fish to swim away. I pray that I can find my own little area of the ocean cast my own little net and make sure I don’t forget those others that fish with me – while keeping the sustainable harvest of course 🙂

5) I will learn to relax and disconnect. Easier said than done but for me probably the most important.

With love and hope,

Will

 

Want to Try My Immigration Quiz on Entry to Canada/Inadmissibility?

I thought it would be fun to share the quiz I had my brilliant Ashton students write. Part creative writing part immigration. Enjoy! I will try and post an answer key soon 😉

Mr. Chow and His Friends Have a Tough Day at the Border

 Mr. Orlando Chow (“Mr. Chow”) is a 35-year old foreign national and citizen of Hong Kong. He is travelling to Canada with his two friends, Juan Jose (“Mr. Jose”) a permanent resident of Canada and citizen of Mexico and Pierre Lacroix (“Mr. Lacroix”), another foreign national of France.

They are returning by plane from a month-long trip to Vegas where they had a good time, some would say too much of a good time. Upon entry into Canada, their glazed looks and alcohol in the breath led to a referral to secondary for all three.

Officer Bruce Boulder (“Officer Boulder”) is a two-year vet of the Canada Border Services Agency (“CBSA”) working secondary examination at Vancouver Airport (“YVR”).

Officer Boulder greets the three of them at the border. Greet may not be the best descriptor. He is not having a good day. His boss told him that he had been making one too many mistakes. Recently, a Bulgarian individual he had let into Canada had ended up robbing a local convenience store and making headlines. Apparently, he had a criminal history that Officer Boulder missed in his review. Officer Boulder, being the consummate professional that he is, was not going to screw up one more time.

Orlando Chow, twirls his gold chain as he comes up to the border. “Dogg, you can’t being do this to me Officer.” You have to prove that I am not allowed into Canada.” Your primary guy, this Rookie, said something about me proving I am not inadmissible. Get him some training or something. He is making no sense.

 Question 1: Is Officer Boulder’s colleague right that the burden of proof is on Mr. Chow and his cronies to show that they are not inadmissible to Canada.

TRUE or        FALSE (1 mark)

 

Officer Boulder checks his computer and to his surprise something pops up. Mr. Jose, during a binge drinking session apparently had received a misdemeanor Driving Under the Influence (“DUI”) charge while on the trip to Vegas. Global Case Management System (“GCMS”) never lies. Officer Boulder asks to see Mr. Jose’s bags. A bag of soiled underwear revealed a white powder of the non-flour variety. The drug test machine showed it was a 100% match for cocaine. Caught red-handed.

Officer Boulder places handcuffs on Mr. Jose and orders him against the wall. He calls his supervisor on the intercom to come as it looked like a serious issue. “Boss, I think I got one – he’s got a charge on him from Las Vegas. I’m thinking s.36(2) – it doesn’t matter what the punishment is – I know this is a hybrid offense and he’s indictable. I have a reasonable ground to believe he committed an offense outside of Canada– this is a home run.” “But I am a permanent resident!” Mr. Jose yells from the wall trying to get Officer Boulder’s attention to no avail.

Question 2: Officer Boulder is right about the standard of proof and section of IRPA that Mr. Jose is inadmissible under.

TRUE or        FALSE (1 mark)

 

Officer Boulder then turns his attention to Mr. Lacroix. Officer Boulder notices on his GCMS check that Mr. Lacroix had recently obtained an eTA to fly to Canada from France. He had indicated no previous history of detention, arrests, or refusals. Before Officer Boulder could even begin to ask, Mr. Lacroix smirks, his Parisian accent starting to flow through: “You have nothing on me monsieur!” Listen mon ami, this is not my first rodeo. I remember in zee Australia. They had me in zee handcuffs and I called my lawyer and he comes in with paperwork storming in and zey let me go on the spot. We actually end (sic) up suing them and I got enough money to allow me to stay in Australia for two years and not work a single day (before, you know I had to do that under the table thing). Anyways, I am done talking to you guys. You aren’t asking me another questions – I need my lawyer here now”

 Question 3: Mr. Lacroix has the right to counsel at this stage of secondary questioning even though he has not been detained.

TRUE or        FALSE (1 mark)

 

Officer Boulder tells Mr. Lacroix that on the balance of probabilities he has reason to believe that Mr. Lacroix has misrepresented himself. Officer Boulder’s boss, Superintendent Jenny Jones (Superintendent Jones) shows up on the scene. “What is wrong” asks Superintendent Jones. “Zee Officer thinks I misrepresented myself because I wrote that I had never been arrested before on my application for an eTA” answered Mr. Lacroix, noticeable sweat pores started emerging on his forehead. “That was done by my travel agent. Not my fault at all. I cannot be found responsible for misrepresentation as I never intended to answer that.”

Question 4: Misrepresentation under A40 IRPA requires intent therefore Mr. Lacroix is right. 

TRUE or        FALSE (1 mark)

 

Superintendent Jones tells Officer Boulder that he will interview both Mr. Jose and Mr. Lacroix (given the severity of their situations) and that Officer Boulder should talk to Mr. Chow to make sure he had met his conditions for entry (you know, the one from Question 1). IRCC had flagged Mr. Chow for CBSA to ask a few questions. It was easier to question him this way.

Mr. Chow tells Officer Boulder that he did indeed have an application in for permanent residence as a sponsored spouse and that everything will be okay once he is a permanent resident of Canada and says that given he had done nothing wrong. Mr. Chow told the Officer that an American friend of his, Lily Chow, had done the same thing in sponsoring her spouse (or was it common-law partner?). The Officer asks if he was aware that his Canadian wife had received a procedural fairness letter from IRCC about three issues. First, there were concerns that his relationship was not genuine. Second, there was a concern that there was a financial inadmissibility concern due to his wife’s disability (she was a paraplegic and currently receiving disability payments as the source of her living expenses). Finally, there was issues with his daughter (remember not her daughter)’s autism being an excessive demand on Canadian society. His daughter was seven and also born in Hong Kong to his ex-partner. He had met his Canadian wife online before they arranged to see each other in Taiwan. A week later and they were engaged to be married.

Officer Boulder remembers his recent training session and thinks to himself. If Mr. Chow’s relationship is not genuine, the financial inadmissibility issue does not even matter to the appeal division as he will found not to be a family member.

Question 5: Does Officer Boulder remember correctly that if the relationship is not genuine, there is no need for an appeal division to consider financial inadmissibility?

 TRUE or        FALSE (1 mark)

 

Officer Boulder grabs his laptop out and searches “Orlando Chow” just to see who he was dealing with. He sees a relatively sketchy website with information suggesting Mr. Chow was a member of the Triads – Canadian chapter. “This is enough. I need to only prove this only on a reasonable grounds to believe. S.37 – Organized Crime. I got this. Or was it balance of probabilities? What does section 33 say again?

Question 6: Is balance of probabilities the standard of proof for a finding of organized criminality?

 TRUE             or        FALSE (1 mark)

 

Officer Boulder decides to make a note to send this issue to inland enforcement but not to action it now. As he writes, Mr. Chow, who continues to read the letter setting out how his wife’s inability to prove care and support was being challenged. “This letter is BS – listen my wife can sponsor me.” Mr. Chow shouts. “I know, my lawyer told me that a Canadian sponsor can receive disability payments – there’s an exemption for this.” My wife’s disability has nothing to do with me. I can make $0 dollars for all that matters. Plus, I have a job lined up in a motorbike shop. I even have a contract to start once my open work permit arrives. Look” Mr. Chow provides a one page letter with two lines. A faint electronic signature can be found on the page. “Juan Jose.”

Question 7: Given his wife is eligible as a sponsor, there is no requirement for Mr. Chow to have anything to demonstrate that he is financially admissible other than an employment letter.

TRUE  or       FALSE (1 mark)

 

Mr. Chow then reads the section about his daughter’s condition. This is ridiculous – absolutely ridiculous… how can there be an excess demand on social services. I have an uncle in Hong Kong who is a millionaire. He can just give me some money and we can pay for it. No problem. This “mitigation plan” will be easy to prepare.

Officer Boulder responds: “Clearly you haven’t read the case law in this area, money does not matter. Your plan does not matter! The Officer does not even have to look at it in the context of social services”

Question 8: Officer Boulder is right that any individualized mitigation plan that Mr. Chow comes up with in respect to social services will not matter and cannot be considered given the nature of the medical inadmissibility.

 TRUE or        FALSE (1 mark)

 

Officer Boulder asks Mr. Chow if he intends to leave Canada and that he could not intend to be a permanent resident without holding a permanent resident visa. Mr. Chow flips open his bag showing that he still owned property in Hong Kong, had an adult daughter that he still visited often and in fact was planning to visit in another 6 months. Officer Boulder realized Mr. Chow was low key about social media – his #hashtag game was not strong. Officer Boulder states: None of this is relevant. You are only allowed one intention and you made that clear with your permanent residence application.

Question 9: Is Officer Boulder right that only one intention is allowed once a permanent residence application is submitted?

 TRUE or        FALSE (1 mark)

 

“I know my little daughter won’t affect my application at all anyways. What is the worst that can happen. She can just stay in Hong Kong. There is no rule that her being inadmissible makes me inadmissible as well. I am sponsored by my wife. My daughter is not even hers. I remember there’s an exemption for this”

Question 10: Mr. Chow’s statement that his dependent daughter’s inadmissibility cannot render him inadmissible and there is an exemption for this is correct.

TRUE  or       FALSE (1 mark)

 

“Clearly, there are way too many questions right now.” Officer Boulder continues. I am going to ask you for you to give me your passport for now. I will leave the decision up to my colleague on whether or not to give you a visitor record when you meet him in two weeks.

Bonus: The Officer’s decision to ask Mr. Chow to return in two weeks to attend another interview can also be called a D_____________ E___________. (1 extra mark)

 

Think Twice Before You Rely on an Immigration (Even Canadian Immigration’s) Website!

Through teaching my wonderful students at Ashton, I’ve had a few practice epiphanies recently, one of which I would like to share.

Don’t Trust Everything You Read On Immigration

This starts from websites. From well-know eTA scams to even more subtle “outdated” information – you have to be careful. Forums, more often than not, are individuals with complicated/negative experiences panicking over their cases. The complexity of some of their fact scenarios and the added discretion added by various overseas processing visa offices makes these cases by no means precedents to follow. There are a lot of unauthorized representatives or even individuals who are authorized but are writing on the basis of “one or two” experiences that purport to be experts. Indeed, one of the reasons I am also being more careful about posting technical/legal blogs until I do my due diligence (and cross reference multiple sources) is I know very well what occurs on paper and in practice can often be very different.

Be Careful About Reading Immigration’s Own Website

Even Immigration’s own website is not always accurate or up to date. They are doing a much better job of client service and updates but you should be diligent. One of the issues is with updated forms. The website will often indicate the form is from March 2017 for example, but you click a few links and realize the latest version is October 2017.

Another issue is with websites providing generally “ideal” processing advice (purely policy) that is treated by Applicant’s as law. For example, the idea that an extension application needs to be extended 30 days before expiry is ideal for IRCC’s processing but can be a very poor decision if you are awaiting something (like the basis for your very extension or documents) to come through.

30 days

The other one I have a really hard time with is the issue of putting information before the officer in a follow-up after application submission.

no more information

There are many times (for example when you notice an uploading or submission mistake) or have an important update/follow-up where you will need to send a new document and hope that it gets to the Officer before they process.

I think Immigration should frankly remove/amend the above two pieces of advice because they do not align with the Act and Regs.

Immigration was quick on updating one issue after realizing a mistake it had made on it’s website. Previously, the website has suggested a post-graduate work permit holder lost the ability to work upon return from a trip outside Canada. They made a quick fix after realizing they had the wrong info.

Sometimes the information from immigration is not “wrong” per se but rather can be too broadly interpreted too broadly to the detriment of the Applicant. This is what happened in Zhang v. Canada (Citizenship and Immigration), 2016 FC 964 (CanLII), http://canlii.ca/t/h4g53 where the Applicant took a broad interpretation of the ability to study for six months upon authorized entry to cover the period of time that extended beyond the initial six month entry period. By the wording of the website, again without reference to the Act and Regs, this all sounded good and kosher. However, once those definitions were explored, it not only grounded the reasonableness of the Officer’s decision but arguably (in my opinion) made it the only reasonable decision.

Where a provision of law or a procedural fairness letter or an obscurely written website instruction causes you some doubt, my recommendation is always to go see someone.  I know it’s my overused moniker, but it is much easier to prevent a problem than to clean one up.

 

 

 

Study Permits Don’t Automatically Invalidate 90 Days After “Incomplete” Studies…. However

I’ve written previously on the way R. 222(1) of the Immigration and Refugee Protections Regulations (“IRPR”) operates with respect the invalidation of study permits. Initially, I was somewhat skeptical that a student whose studies were “incomplete” or who took a long leave could have their study permits extend beyond the 90 day period after the break.

Turns out, IRCC has been interpreting that it the study permit remains valid as per the below response obtained by ATIP.

Incomplete Studies

However, the recommendation is to “switch” your status to visitor or leave Canada so as not to violate the R.220.1(1) IRPR requirements to remain enrolled in a DLI and “actively pursue their course or program of study.”

However, this creates a further problem. A student who switches their status to visitor by way of requesting a visitor record still holds  a valid study permit – it isn’t a one to other proposition (per IRPR).

I presume the idea is that the visitor record can be provided to show that  you are in Canada as a visitor and abiding by those requirements. However, there needs to be some clarification if the student is indeed “switching to visitor” that they are given an exemption to the requirement to actively-pursue studies. It would almost make sense in this case for all students to apply for an emergency visitor record in the event of breaks in their study. This may create processing problems for IRCC if this becomes a requirement.

Of course, and as discussed as an earlier post, gaps in studies also hold major consequences for post-graduate work permit eligibility. Right now, IRCC’s position is that finding an eight-month period of continuous study within a program is not enough. That entire program must have been completed through full-time, continuous studies. The “question is still live” as to what happens when you try and utilize transferring between institutions to try and overcome previous part-time studies.

I’ve been told that immigration is still in the process of putting out instructions – on issues such PGWP. I hope the actively-pursuing studies, expiry of study permits, and exceptions for students with serious and legitimate explanations can be made clear.

Immigration – if you are reading – I’d be happy to help consult on writing these rules ;).

 

Financial Sensitivity, Legal Fees, and Addressing This With Your Immigration Representative – Five Recommendations

Vancouver Is Getting Expensive. Legal Fees Are Hard to Come By

Regardless of your income bracket, Vancouver has become a difficult place to get by from a financial perspective. The Lower Mainland is seeing shelter-to-income ratio figures where close to 40-45% of homeowners spend 30% of their household income on shelter. If we factor in new  immigrants, where we know wages are lower and many expenses (international tuition, fees, etc. are higher), we could expect this number to be even higher. City of Vancouver statistics showed that in 2010, approximately 7% of all renters and 4% of all owners spent 50% to 99% of their household income on shelter – a figure I imagine has continued to climb up to today.

Increasingly, and not surprisingly,  I am seeing individuals facing extreme challenges to afford their legal fees, particularly where they do not have the support of a well-established employer willing to foot the bill.

However, their legal matters are becoming increasingly complex – including complex legal issues of procedural fairness, appeals, and judicial reviews. As immigration law has become better defined, it has become the finite details (many of which require the expertise of a professional to understand) that are the source of contentious decisions – and the ones that need to be litigated carefully.

The natural result of this are individuals seeking of free consultations, or even perhaps success fees. The quoting of a “price” has become the first, rather than the last question, where in the scope of solving legal problems its proper place is the later. Individuals are taking on their own cases now with more fervor – perhaps influenced by Immigration’s own “you can do it yourself” pitch and making some major, sometimes non-fixable, mistakes.

What has happened through this – and I have seen this in subsequent consultations and clients that I have retained – is delay, often times near fatal to their status in Canada, poorly prepared application, and ultimately the need to spend more getting out of a difficult situation than would have taken to prevent in the first place.

Five Things You Can Relay to Your Immigration Representative

I recommend all individuals now to be very proactive and very upfront when seeking legal advice. Let us, as your practitioners, know your financial situation, your budget, and your A to Z concerns. Be very cautious about paying for an entire service up-front without any stages of billing. Particularly with dealing with agents and those who are not abiding by their own professional codes of conducts, there may be more value being extracted by your money being utilized to make more money than by any actual provision of services. We saw this a lot with the investor immigration programs a few years back before they were unceremoniously dropped.This is entirely illegal for a lawyer to undertake in and one of the reasons our profession has strict trust accounting rules that watches the placement of our every penny. I usually bill about a third to a half on commencement of work and then the rest split between submission and/or a portion when the application is approved (in the context of a longer-term application).

Second – set up payment plans (if necessary). While most practitioners are unlikely to work for free before an initial payment is secured – many (myself included) are happy to break this down into monthly payments fitting your financial budget. Payment plans help ensure you are not creating more household debt by paying fees that you cannot afford upfront.

Third – don’t underestimate the value of a paid consultation – thirty minute free consultations here and there are more likely to end up being sales pitches than actually problem solvers and running into the wrong 30 minute consultation can embed incomplete and false advice that could take you on a more expensive path than you would have needed to go on. Sending your information via an online form or via emails to anonymous websites (on the other hand) are a huge sacrifice of personal privacy and more than a few individuals have ended up being victims of identity or immigration fraud in the interest of saving upfront consultation fees with an actual lawyer.

Fourth – ask us to train in addition to asking us to do. Whether it is on a set fee or an hourly fee if I see a client who is proactive in gathering their documentation and acts almost as a second legal assistant in championing their case – I will reflect this in the price that I charge. If I have to cross every i and dot every t on a form, this is something that we will have to charge extra for because our time is money. However, if you come see me in a consultation with several forms already drafted accurately and your questions and asks clearly defined in an application context, or in an appeal context if you provide me a strong factual record and your thoughts up front, it can save hours of work. A prepared client = an always more facilitate process = that will provide financial benefits.

Fifth – understand the difference between an hourly agreement and set fee agreement. Hourly agreements are not necessarily a bad thing (notwithstanding their bad public rap) especially where the work may be piecemeal or your budget may be a little tight.

However, if you want the security of the process being taken care of for you without any unforeseen work being charged – consider a set fee agreement. It is never a bad thing to share your budget and your ask in either case. Some cases are more suitable to one over the other, and an experienced practitioner will tell you which one and why and give you the option in each circumstance.

Faster and Cheaper is Not Always Better

Many of you will end up going to a website that purports to process volume and success rate at a high rate. You may end up sending a webform with your information, receiving an email from some administrator, and eventually having some “case manager” or “project manager” contact you. In many cases the more well-oiled the online marketing machine appears to be, the more careful you need to be about the process.

While it is not unheard of for some practitioners to be relatively sheltered from their clients, primarily having communication go through an assistant, I know at our Firm and through my practice that is not the case. Advice needs to come from me and instructions need to come from me. You may have a visa application or a study permit application turned in a day and realize it was so bare bones that a refusal is the only logical consequence. In that case (the basic filling out of forms) – I would even argue that you as an applicant have a better chance of doing it accurately than a visa mill trying to transfer your information from a generic client form.

I cannot tell you how many clients I have ended up helping that made a mistake of submitting a substandard initial application or eventually responding to a request letter the next day without giving proper though to content, form, or law. For some straight forwarded cases, a skeletal application may be good enough but increasingly – especially with respect to temporary residence applications from countries with more challenging local visa offices or permanent residence applications where the facts aren’t straight forward.

There’s a difference between – taking time (by delaying someone’s file) vs. taking time (by being diligent). Accuracy within a reasonable set time is very crucial and something unfortunately lacking in a majority of practices set today.

Conclusion

The legal landscape is certainly changing – and financial challenges threaten to influence consumer decisions away from the traditional trust model of legal representation to one based on speed, accuracy, and results. These three, I find anyways, are products of good work not the good work itself. Being transparent about financial challenges with your potential advisor, building rapport, and taking ownership of an immigration file as a collaborative venture is the key to success.

As always, please email me at will.tao@larlee.com if you would like to get in touch at anytime about your situation.

Why I Believe Refusing Some Post-Graduate Work Permits for Lack of Full-Time Study Is Problematic

 

Post-Graduate Work Permit Refusals are on the up and up.

My colleague, Steven Meurrens, recently posted a chart showing how in 2016 the refusal rate for PGWPs began to spike:

Capture-7

Source: http://meurrensonimmigration.com/the-post-graduation-work-permit/

I don’t have the numbers but I would suggest 2017 is seeing more of the same

Some of the reasons are understandable:

  • Schools that are not eligible for PGWPs (although as I have mentioned a public, national list should be made clear);
  • Incorrect fees (failing to pay the open work permit holder fee);
  • Expired passports; and
  • Incomplete transcripts and deficient completion letters.

One of the reasons I find highly, highly problematic is the requirement that the student be in full-time studies for the entire duration of the studies as defined by the institution.

The current eligibility for PGWPs (all policy – as you may remember from my previous posts) is this:

 

 

Who is eligible to participate?

To obtain a work permit under the PGWPP, the applicant must meet the following requirements:

  • have a valid study permit when applying for the work permit;
  • have continuously studied full time in Canada (i.e., studies must have taken place at a Canadian educational institution) and have completed a program of study that is at least eight months in duration;
  • have completed and passed the program of study and received a written notification from the educational institution indicating that they are eligible to obtain a degree, diploma or certificate. The educational institution must be one of the following:
    • a public post-secondary institution, such as a college, trade or technical school, university or CEGEP (in Quebec);
    • a private post-secondary institution that operates under the same rules and regulations as public institutions;
    • a private secondary or post-secondary institution (in Quebec) offering qualifying programs of 900 hours or longer leading to a diploma of vocational studies (DVS) or an attestation of vocational specialization (AVS); or
    • a Canadian private institution authorized by provincial statute to confer degrees (i.e., bachelor’s degree, master’s degree, doctorate), but only if the student is enrolled in one of the programs of study leading to a degree, as authorized by the province, and not in just any program of study offered by the private institution. 

Applicants must apply for a work permit within 90 days of receiving written confirmation (e.g., an official letter or transcript) from the educational institution indicating that they have met the requirements for completing their program of study. Calculation of the 90 days begins the day the student’s final marks are issued or the day formal written notification of program completion is received, whichever comes first.

http://www.cic.gc.ca/english/resources/tools/temp/students/post-grad.asp

 

The June 2014 amendments added the requirement to “actively-pursue” studies and made full-time study a requirement so as to encourage international students not to unnecessarily drag out their studies and treating it as a periphery purpose of their stay in Canada.

However, the reality on the ground is that the rule has been applied in an overbroad manner. In recent cases I have seen or heard from includes students who choose to take one less course during the semester and make it up in the summer, students who are prevented from registration due to a lack of space in their required course, and finally medical leaves.

Transcript shows

Students who have been refused, do not have the current ability to restore – given the jurisprudence put out by the Federal Court. Many are stuck trying to seek other exemptions to a Labour Market Impact Assessment (a process very difficult for a recent graduate), an option through Provincial Nomination Programs, or restoration to a new study program. All of these are generally prohibitively expensive procedures filled with too much uncertainty.

Issuing Temporary Resident Permits (“TRPs”)  for 3 years, while I have seen that on some files, I believe is frankly not a solution. A TRP holder who has been in Canada for three consecutive years can apply for permanent residence even without having completed the required one-year of skilled work experience required of the Canadian Experience Class (for employed work) or the Federal Skilled Worker Program (in the event of contractual /self-employed work).

There is one thing I think all institutions need to do better. I have seen letters of completion from many reputable institutions that simply do not meet the cut from an immigration standpoint. I think some of these institutions, frankly, are opening up themselves to some liability by not having systems in place or resources available for students.

Rather than being contacted or advised that the 90 day window has started running – some of these students are stuck downloading generic letters from portals that do not set out any of the required information for a completion of studies letters.

The follow-up request for transcripts, that often are not finalized – due to the fact graduation has not occurred or that are problematic – due to unexplained or documented credit systems, are fatal to applicants.

From a non-legal perspective, it is simply bad business to take four times the tuition and provide inadequate advisory services to these students.

How should the law change then? More correctly – how should the policy change? – given the policy is itself an object of IRCC discretion perhaps more discretion could be applied to fringe cases. Perhaps a set template or form for letters of completion can be shared with eligible designated learning institutions and a section around discretion or discrepancy can be made into policy. Schools would be forced into taking some time to answering this questionnaire for their students and explaining those minor transcript discrepancies.

I think change has to happen quickly. While our international student program is expanding, the students that are being caught in the middle due to vague reasons and minor mistakes, stain some of the success. I think a fairer approach – that adds some leniency where leniency should be granted – helps all parties.

I’ve Been Nominated by a Province and Need to Extend My Work Permit – Bridging Open Work Permit or Work Permit With Provincial Support Letter?

A question that I continue to get particularly from B.C. based,  provincially nominated, clients requesting assistance on extending a work permit is how to choose between selecting an open bridging work permit or a province supported closed work permit based on a work permit support letter. Authority for the province supporting a foreign worker is provided by R.204(c) of the Immigration and Refugees Protection Regulations.

IRCC’s Coming to Canada survey does not always make it clear when you are selecting that you want to apply for work permit extensions but here are at least five factors you should take into consideration before selecting on a strategy:

  1. Timing – when is IRCC going to receive your PR Application/are there any complications with your PR Application; When does your nomination expire?
  2. Paper vs. Online – this is a very important choice that can carry pros and cons on both sides;
  3. Category of Application – Are you applying as an international post-graduate? Skilled worker? Entrepreneur? – what are your commits to your employer under each and how much flexibility are you provided?
  4. Stability of your current job – Are there reasons to believe that your PNP nomination may be at risk (i.e. company having financial difficulties, discussions of downsizing, etc.). Would you possibly need to “jump ship” in order to maintain your status in Canada in such a circumstance.
  5. Is there the existence of an Express Entry PNP option – if so you may be able to fast-tracked your usual paper-based process and could be aided by having an employer-specific work permit.

I have seen several cases where individuals who would have been better off one over the other. I have seen more than a few individuals lose status because of the extension process.

This is certainly an issue I would seek legal advice on and early – to prepare a strategy earlier rather than later.

Announcement: I’m Starting My Teaching Career – Ashton College

Hi Vancouver Immigration Blog Readers:

I’ve had a busy couple of weeks. Been asked to step in on advocacy a little these last two weeks which is a change. The City of Vancouver committee that I currently chair has been asked to be part of a few City initiatives involving poverty reduction and immigration – both issues with a heavy cultural lens. I’ve also had the opportunity to be a part of a CBC piece on international students and some of the mental health issues they’ve been dealing with that may be triggered by immigration (http://www.cbc.ca/news/canada/british-columbia/crying-your-guts-out-some-international-students-fear-seeking-help-for-burnout-1.4295700) and as well as a Vancouver Sun piece on international students leaving Canada after their graduation and their challenges getting qualifying employment (http://vancouversun.com/feature/how-international-students-are-filling-funding-shortfalls/chapter-4) [see esp: embedded video].

One thing I’ve learned quickly I feel as a young lawyer is the concept of balance. For this I owe a lot of peopler recent credit – Steven Meurrens (my colleague and mentor), Jeena Cho (author and meditation teacher), Andrew Verwey, Jenn Lau, and Dave Namkung just to name a few.  There were so many others (my colleagues and seniors) who have been teaching me and helping me at every corner. I always say it, but the one thing I’m grateful to God for is putting good people in my life – not for giving me any particular skills otherwise.

On that very positive note, I am pleased and humbled to announce my next major venture.

Teaching (just for a little history) runs in the Tao genetics. My great grandfather was a teacher (I’m still trying to learn more about him). His most famous pupil was the badass feminist Qiu Jin. My grandfather was a teacher. He taught second-language (English I believe it was) acquisition and wrote several books on the topic. My father was a teacher as well (student-teaching in China, UVic, and UBC – if I’m not mistaken).

In my first two and a half years of practice I’ve had the opportunity (thanks to LR, IMEDA, etc.) to get in a lot of lectures, talks, and presentations. I love it. I love sharing my passion with others.

I am going to be teaching consultants during a time of some turmoil in the consulting industry. I’ve decided I want to be part of the solution.

It is well-documented in the media that consultants have gone through some smudging and will soon (I understand) go through a bit of a wash as they discuss how to fix up the issues. Regardless of the internal conflicts that I am not privy too,  my understanding is everyone involved wants to have better, competent services provided to immigration clients and less fraud that negatively impacts all immigrants.

I am joining Ashton College because I believe in the vision that Ron and his team have put out to train immigration consultants the right way. I respectfully disagree with some of my esteemed colleagues (many of them wiser and more learned than I will ever be), who want consultants entirely removed from the immigration practice. I believe that there should be a space carved out for the competent, thoughtful, multilingual consultant who want to serve others and their communities for the interests of promoting access to justice.

As a young lawyer I can provide that passion in my classrooms so that young practitioners can see immigration law as not a business of profit, but rather one where people always come first.

I have already decided I will be a tough but fair instructor. Fighting my tendencies to be a nice guy I will make sure students come ready to learn and engage with the class materials. I am also humbled enough by my experiences so far to know I’ve only scratched the surface of immigration law and that the fact we are all learning, adapting to change, and developing our own interpretations and best practices makes our professions dynamic and awesome.  I’m excited and I’m grateful. For those interested the program is here.

Ashton – let’s do this! See you in November 🙂

AC logo_digital

 

The Little Things that Send Back Spousals – Advice Blog

The December 2016 changes to the spousal sponsorship process has (to-date) served as a double-edge sword. While applications for many have sped up, for others, the process has turned into a nightmare. There have been increased cases of applications having be returned back to sender – for failing to meet the strict requirements of a complete application.

Regulation 10 of the Immigration and Refugee Protection Regulations (“IRPR”) governs when an application is complete:

Form and content of application
  • (1) Subject to paragraphs 28(b) to (d) and 139(1)(b), an application under these Regulations shall

    • (a) be made in writing using the form, if any, provided by the Department or, in the case of an application for a declaration of relief under subsection 42.1(1) of the Act, by the Canada Border Services Agency;

    • (b) be signed by the applicant;

    • (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;

    • (d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and

    • (e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.

IRCC has taken a rather narrower and stricter approach in determining when an application should be sent back. It appears that where documents or content is not in-line with their instructions (regardless of whether defined in IRPR or IRPA there is a good chance the application is being returned.

The consequences of a return are heavy – it could mean loss of status (where one is basing their work permit extension on an in-Canada Spousal). At the best it’s a loss of a few months and at the worst it could lead to enforcement action if no steps are taken in time to remedy the mistakes.

In a sense, after ATIPing to learn one of the impetuses behind the changes I am not surprised. The following are excerpts from some of those ATIPs where directives were provided to IRCC officers at Case Processing Center – Mississauga (the office responsible for intake):

Capture

Capture 1

Top Issues Noticed (with Some Input from Immigration and Other Practitioners)

Recently on the Immigration Listserve there has been increasing outrage from representatives (expressed on their on files and on behalf of self-reps) on the return of applications. IRCC has acknowledged that some are returned in error. However, there are some issues that are not errors that will lead to return that should be carefully looked at:

 

  1. Providing a document issued by CRA as proof of Sponsor’s employment and if (not available) a letter in lieu – where something is missing or unavailable (for example self-employed) – it is not enough just to write n/a on the checklist and omit.
  2. Record of solemnization – this is not a legal marriage certificate. neither is any other hand-drafted document (such as a license) – wait for the official/legal certificate;
  3. Birth Certificate (particularly for dependent children) – while many countries don’t have proper processes or records – this must be explained. In general, a medical certificate must be provided.
  4. Missing postal codes or North American addresses – be complete, and don’t be sloppy in putting incomplete information
  5. Missing signatures or improper digital signatures – for spousals original signatures are required. Don’t forget to date and as a rep don’t backdate or future date.
  6. Explanations hidden in lengthy submission letter – if it is a very important explanation consider adding it in two locations – both where it arises and maybe flagged in the submission letter.
  7. Incorrect fee payment or missing receipt – double check how much needs to be paid and review instruction guide for this information. Perhaps even flag the fee payment form with a tab in the event it is missed in a thick package;
  8. Have the rep sign the Use of Rep – if you are paying a representative who is asking you to sign your own forms and pay them money and not disclose them – not only is this possible misrep but you may run against the completeness requirement of 10.2(c.4)
Required information

(2) The application shall, unless otherwise provided by these Regulations,

  • (a) contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not, and a statement whether the applicant or any of the family members is the spouse, common-law partner or conjugal partner of another person;

  • (b) indicate whether they are applying for a visa, permit or authorization;

  • (c) indicate the class prescribed by these Regulations for which the application is made;

  • (c.1) if the applicant is represented in connection with the application, include the name, postal address and telephone number, and fax number and electronic mail address, if any, of any person or entity — or a person acting on its behalf — representing the applicant;

  • (c.2) if the applicant is represented, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the name of the body of which the person is a member and their membership identification number;

  • (c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;

  • (c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in subsection 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person; and

  • (d) include a declaration that the information provided is complete and accurate.

A final mistake i see many self-reps make is in trying to present their application too cute: multiple envelopes, binders, staples and paper clips. We keep it very simple here. Generally one rubberband and if required separate rubberbands to separate packages. The more obstacles you give the processing officer at IRCC the more likely they will be frustrated and (1) look for problems and reasons to return; or (2) actually lose a document in the process which may lead the application to be improperly returned.

Finally – scan everything for yourself AND make a physical copy so you can have something to fall-back on.

Hope this helps.