Category Archives: Uncategorized

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.

An Update When You Owe An Update – Summer 2017

VIB Readers:

Without sounding like a broken record, the past few months have been busy with so much happening that unfortunately writing has taken an unfortunate backseat. You will not hear excuses from me – I need to write more and I know it.

On the positive front, it has also been a very reflective time for me. I’ve spent more time reading what others have to stay – following journalists and being a witness to the recent events of Charlottesville and later Vancouver. I’ve spent time reading journal articles and gather resources on issues that I am very passionate about. While they may not be directly relevant to projects now, they help form my framework/lens that I can view this world through.

I believe I am uniquely positioned this year – through my dual roles of being the Chair of the City of Vancouver’s Cultural Communities Advisory Committee and as well as a Committee member of the Canadian Bar Association’s Equality & Diversity Committee to do some meaningful policy work in addition to my immigration work. Both of these organizations will be releasing statements and reports shortly, and in fact the CCAC statement is coming out in the next few days on our call to action for the City’s cultural communities.  This advocacy work where I am able to take the individual advocacy I do for my clients and project it on a larger scale has been very meaningful.

My immigration practice is also moving along. As with any young practitioner, I try and balance client representation, with running a business, and with investing in continuous education to ensure my client’s needs are best serviced.  The legal landscape is changing in immigration, particularly corporate immigration. I’ve had several meetings with senior mentors and practitioners about the role accounting firms, technology, and project management will have on the way work is performed and the needs clients will have.

At the same time as all these are happening, I am seeing my own work permit/corporation immigration practice pick up.  Many of these business contacting me are start-up or small businesses with immigrant workers. Many of these companies are without designated HR departments. Even within these corporate clients I’m starting to see a discrepancy in the accessibility and knowledge of immigration procedures. I suspect that while the cheeseburger delivery of immigration will inevitably start, there will still be enough companies that want custom orders and are willing to engage someone willing to provide more personalized services. Boutiques and sole practitioners who may increasing feel crowded out will have to find ways to adapt to the changing market.

On the immigration litigation/personal and family immigration side, I’ve been able to achieve several recent successful outcomes.

I was able to secure a restoration and new study permit for a student who was caught in a bit of an administrative nightmare with both IRCC and a former counsel .  While 90 days passed from when the refusal was apparently issued, we found enough evidence (through ATIPs and other research) to go an argument that he was still eligible for restoration. He now has his status back.

I was also able to restore a second graduate, who initially was refused a PGWP for attending a private school that was not eligible under the program, and secure him a two year (longer than he would have received) C-14 Film/Television work permit. It was incredible to be able to delve into this relatively new permit and put together the required pieces and understand a bit more of what a growing number of Vancouver’s film and television people do.

On the spousal sponsorship side, I was able to secure a rehabilitation and approval putting to end a previous self-rep’s multiple year fight with immigration (which even went up to the ministerial level) . For a second client, I was able to succeed on a ADR showing the relationship was genuine and not for immigration purposes after spending several painstaking hours gather positive evidence, affidavits, and clarifications that were either missed or incorrectly interpreted at the spousal interview. Mistakes happen in immigration – with both practitioners and as well government not being immune to making them.

On a more challenging side, I’m handling a string of refusals of my own applications (study permits) from Sri Lanka. This has been a humbling experience. Prior to these refusals I had a Mayweather record in study permits. However, it has re-enforced my belief that often times as practitioners rather than pushing volume and efficiency (particular for individuals and families who may not have the same economic argument that corporate clients do), we need to push quality. Researching and understanding the uniqueness and the discretion of the individuals that will decide your case – from your own client to the decision-makers – is absolutely crucial. I’ve told all the clients that I will ensure to follow-up and do everything I can to assist them – including choosing no categories of application. Something I myself admire, and I wish there were more of an immigration, is honesty – accepting and acknowledging imperfection beyond just that of the system. Seeing what is happening globally on the immigration front, and even with our own challenges, we know we’re working within a very controversial and discretion-based system. Not everyone is always going to be happy. Going to work everyday won’t always be easy, neither will be sleeping at night for all those involved.

Where does that leave me and VIB for early Fall. I’ve promised a few more articles with, we’re working on a couple presentations, and I am continuing to spend my spare time researching intricacies of the law.  I also want to add a few more fun and inclusive elements to my blog – to start writing about race, equality/equity/diversity, and my favourite topic outside immigration – food.

Professionally, I have spoken to several senior mentors who believe I should take my immigration litigation (and perhaps even future litigation outside of strictly immigration) by the horns. I hope to better understand what my colleague refugee lawyers do and engage in some of the technical aspects of our law – particularly where there is room to challenge interpretation. Now that my wife’s own immigration has been settled, I’ve had my few weeks of soul searching, it is time to press ahead.

I’m grateful to those who have taken time out to guide me, to share that meaningful cup of Joe, to debate me, and who have welcomed me into their homes and lives either as a friend or an advocate.

Exciting times ahead!

 

Cultural Exploration: From the Eyes of a Student

Hi there!

My name is Katherine Akladios and I am a fourth year Religious Studies student at the University of British Columbia. I had the pleasure of meeting Will Tao at a Pre-Law career event last year. Will spoke candidly about his experience as an immigration lawyer, as he elaborated on his work and his experiences as an immigrant. Our discussion at the event prompted my interest in the field and to further understand the experiences of immigrants in Vancouver.

As a first generation immigrant, I have been brought up in the intersection of multiple cultures: Portuguese, Egyptian, and Canadian. I believe my ethnicity has allowed me to engage in differing cultures, but has also allowed me to develop an appreciation for the variety of cultures within Vancouver. Through this blog I hope to highlight the contributions of the immigrant community in Vancouver. Our city is a mosaic of cultures and our diversity should be celebrated! I look forward to creating a platform for which this is showcased.

Finally Back Online! – Piece on Use of Ethnic Instant Messaging

As I write new content and catch up on my forced hiatus (I was locked out of my own blog), I’d like to share a piece I wrote for FACLBC’s Mentorship Blog relating to the use of instant messaging, particularly cultural isntant messaging apps. This has become an important issue in my practice and I’m still grappling with how to best ensure effective service to client’s while keeping my practice management sharp.

Please enjoy the piece below and I promise, new (immigration) content, very shortly!

WeChat, We Kaokao, We Line: How Instant Messaging Applications Are Changing the Practice of Law

September 1, 2016

Will Tao

I have discussed in another post how I view technology as a double-edged sword, one that gives a young, tech-savvy practitioner a distinct advantage and added value but also poses a unique risk for inadequate practice management and professional ethics skills. In that article, I discussed several examples such as Skype and other project management software and how I have been incorporating their use into my immigration law practice.

In this article, I want to discuss another growing trend and an increasingly frequent discussion topic among young practitioners that raises questions of efficiency, ethics, and ultimately what the ideal solicitor-client relationship looks like in the modern age.

I am talking about the instant messaging app. As one articling student put it to me recently in a conversation over a casual drink:

“These apps are so powerful. Clients communicate with us in real-time and expect real-time responses. They instruct us via voice message, they provide us with documents via photo share. I am not even that good at Chinese! It is really changing up the way I view my role as a lawyer and my role within my law firm.”

Email Communication – The Consequential Case for Instant Messaging

In the North American practice of law, email communication is considered among the most secure and trusted mediums. It is certainly the most common medium, one many of us junior to mid-level practitioners have grown up with since grade school. Documents are shared readily over email; long chains are started with the ability to cc or bcc additional individuals as needed. Utilizing email management software like Microsoft Outlook, we carefully categorize these emails into subfolders and take notes to files to ensure a proper paper trail is kept.

I find personally that the use of apps like WhatsApp or the even more archaic text message in my practice is rare. Some law firms offer their employees, specific firm phones but often cell phone numbers are to be given out only in emergency situations or used for inter-office communication. The separation of work and personal, business and pleasure is quite pronounced in the North American business environment considered both better for work product and also for professional ethics.

However, what is often missed in the predominant narrative of email use is that email particularly in some Asian markets may not be used to the same extent as it is in North America.

There are several issues – access being one of the main ones. Several email services, in particular 163.com or the recent qq.com (which just shut off its global services) have internet access issues. Due to global transmission issues, emails are often sent but not received (or vice versa), a risk that can have disastrous impacts on several areas of law where seeking client response is critical before actions are taken.

Secondly, unlike in Canada where there is a reasonable expectation of privacy which applies to an employee’s workplace and email accounts (see R v. Cole, 2012 SCC 53), the reasonable expectation of privacy is not written into Chinese law. Further, several Chinese employers have contracts with their employees to allow for email monitoring. Emailing on certain topics, such as an individual’s outside business interests or plan to move to Canada, could jeopardize the individual’s immediate well-being.

Thirdly, email literacy – how to write one with proper salutations, requests, and conclusions – is not generally well-known among the populous. Particularly among those individuals from second and third-tier Chinese cities who have relied on factory/mining profits, educational levels are not high and instant messaging is the preferred means of communication.

Fourth, instant messaging also allows for the transmission of larger documents and photos that can be used in lieu of documents that generally require a fax machine or scanner. Users more easily and more frequently check instant messaging as compared to their emails.

Finally, and most importantly, I find that individuals/clients prefer using instant messaging because it enables them to communicate quickly and urgently, almost as if having a conversation with a friend. They can harness closer and more personal relationships than the delayed back-and-forth offered by emails. Business connections can be referred between instant messaging parties and introduced, leading to individuals becoming “friends” first, a prerequisite to the start of communication.

WeChat, Kaokao, Line

Three of the apps that I have used to communicate with clients, particularly of Asian background, are WeChat, Kaokao Talk, and Line. WeChat is most popular among my Chinese clients, Kakao Talk among my Korean clients, and Line among Japanese and Taiwanese clients.

Each of these instant messaging applications have their own specific pros and cons. On WeChat, the application I utilize most frequently, a user can leave voice messages, engage in video chats (similar to Skype), and create “moments” – highlights of life events or professional accomplishments. Groups can also be created to link various individuals on projects or to advertise certain products and services.

WeChat is also quite intrusive in that adding an individual as a friend generally provides them with 24/7 access to communication. While there are ways to limit your “moments” such that clients cannot look into your private life, your profile information reveals other types of personal information, such as your location and phone number. This raises a number of interesting questions:

  1.  Is access to a lawyer’s private life something that can be marketed as an asset to the lawyer-client relationship?

  2.  Is exposing this information to a potential client opening up vulnerabilities down the road?

  3.  At what stage is it appropriate to add a potential/retained client to instant messaging software?

Another challenge posed by these applications more specific to the practice of law is preservation of a paper trail. It is difficult to use a smart phone to keep notes to file. Further, WeChat conversations, voice messages, and video records can be erased accidentally or even by common technological malfunctions such as a software crash or a phone reboot.

Still, as a young practitioner searching to provide an addition level of client service, the use of instant messaging has allowed me to communicate with clients abroad, on their time, and provide real-time communication to ensure I am able to better meet their requirements and gain their trust.

Law Society of British Columbia Rules of Professional Conduct, and the Use of Instant Messaging

There are no specific law society rules of professional conduct on the acceptable modes of communication, but there are several rules that may be relevant to instant messaging communication:

Rule 3.5 Preservation of clients’ property at 3.5-2 requires lawyers to “care for a client’s property as a careful and prudent owner would when dealing with like property.”

Several instant messaging applications make it very easy to send personal information back and forth but not so easy to keep these documents secure on a mobile device. Particularly with cloud technology, it is easy for a private document to accidentally be shared, unaware to the user. Managing digital files via these applications is much more difficult to achieve compared to the secure private servers used by law firms.

Rule 7.2 on Communications raises interesting questions and likely creates rules that are directly challenged by instant messaging applications.

The Rules of Professional Conduct state:

7.2-3  A lawyer must not use any device to record a conversation between the lawyer and a client or another lawyer, even if lawful, without first informing the other person of the intention to do so.

Annotations

COMMUNICATIONS

7.2-4  A lawyer must not, in the course of a professional practice, send correspondence or otherwise communicate to a client, another lawyer or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.

The very nature of these communications, in particular voice messaging, are often short and automatically recorded. This makes them arguably inconsistent with usual modes of professional communication. Yet, in the context of the end user involved, the type of “professional communication” that lawyers engage in may not be understood by individuals who have difficulty understanding even elementary English.

Privacy Issues

There are also underlying privacy issues relating to the use of mobile messaging applications. A Chinese corporation named Tencent developed WeChat, meaning the application is subject to the Great Firewall, along with possible censoring and monitoring. As China has not yet adopted western legal principles such as solicitor-client privilege, it is entirely possible for a voice messages or instructions provided via WeChat to be viewed by third-party government officials. Indeed, there are several well-known cases in China where it is suspected that WeChat voice messages were part of the evidence gathered by national security investigators in China.

With all of these applications, it is not quite clear where the cloud servers are stored, the level of privacy and privilege extended over these conversations, and the level of access a third-party investigator could have over your private conversation. The ability to communicate privately with clients, strategize, and to keep cards close to one’s chest is commonly considered the cornerstone of the lawyer-client relationship, and arguably cannot be guaranteed by instant messaging software.

Another privacy issue occurs in exposing your own life, as a practitioner, to your clients. Professionally, lawyers need to keep a level of distance from their client, but increasingly in competitive markets, individuals are hesitant to engage with lawyers who are neither their friends nor the friend of a trusted friend. This close degree of friendship is challenging to the traditional solicitor-client relationship and may create ethical and other business-interest related conflicts which may lead to professional conduct issues.

Practice Management Issues

One of the most pressing concerns with instant messaging applications is the effect it has on practice management. How does one maintain adequate records and integrate this with the law firm’s own systems? Is it acceptable to copy a chat and keep a file on the firm’s server (backing up)? Should alternative records/transcripts be kept of each conversation? These are all issues that individuals who utilize instant messaging in their practice will need to address.

Where is the Future Heading?

With an estimated half of the wealth in British Columbia currently being held by those of Chinese descent, and a growing number of newly arrived immigrants and permanent residents who need legal advice, I strongly suspect the use of instant messaging as a legal tool will increase over the next several years. Consequently, it is critical for law firms and practitioners to develop clear policies on how these communications are to be conducted and for provincial law societies to provide guidance to ensure issues such as privacy, security, and communication are adequately addressed.

Instant messaging software is the future and I would suggest that firms currently struggling with their business development and client relationships figure out a way to engage on these various, ethnic-based, platforms.

Why Canada’s Electronic Travel Authorization Scheme Needs to Be Fixed By September 2016

eTA

In an earlier post last year I predicted that the Electronic Travel Authorization (eTA program) may end up being akin to “visas for the visa-exempt.”

True to form, even with the leniency period having been extended until September 29, I have started to see the eTA program became a major barrier for several foreign nationals seeking to enter Canada. These are individuals who prior to the introduction of the eTA had no problem entering Canada and are now flagged by the eTA’s computer-generated system.

The fundamental theory behind the eTA is I think an agreeable one. Up until recently, Canada had no way of tracking the entry of foreign nationals until they arrived at our Borders. Without information in advance, it was difficult for a Canada Border Services Agency officer to prevent individuals who were inadmissible to Canada, Specifically, I am a fan of asking an Applicant to self-disclose where inadmissibility issues are involved. This is preferable to solely using information sharing and creates a more transparent, fair system.

Whether or not you believe the eTA system is agreeable overall, the eTA also represents an important commitment made by Canada to the United States as part of the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness initiative. Needless to say, it won’t go away anytime soon. Particularly with Canada having recently added several countries, most notably Mexico, to her visa-exempt list,  I suspect the processing of eTAs will only be more scrutinized and lead to more challenges moving forawrd.

That being said, I believe the eTA system needs to be fixed up before it is officially rolled out on September 29, 2016

My Issues with the Current eTA Application System

Currently, the eTA system runs like a self-declared online survey.

Here-in lies the first problem, in my mind. Given the importance of the information contained within, and the fact that an individual is expressly warned that they made be responsible for misrepresentation if they provide false and inaccurate information, I believe the system needs to require everyone to create a MyCIC account and to submit this application through a secure portal. Right not individuals who create eTA profiles and then wish to “link” it to their MyCIC accounts have to jump through multiple hoops to request the linking, often leading to long delays and sometimes even refusals.

The second issue, is that the questions themselves do not lend themselves to enough space for an individual to explain themselves. Under the current system, it appears that refusal of entries or visas to other countries are enough to trigger the longer process.

However, not enough space is provided to adequately explain situations, particularly for individuals who may have a long travel history with more than a few, non-consequential refusals. Similarly for criminal charges or arrests, there is little room to adequately explain why an individual may not be inadmissible. One must essentially submit an eTA to await a battle rather than be able to pre-empt the concerns as they would be able to in a temporary resident visa (“TRV”) application.

The third issue, once an eTA application triggers a request for further information, is that the time provided for such a response is painfully short. Seven days, particularly where linking an account itself can take two to three days, does not provide enough procedural fairness. – particularly where allegations of failing to disclose refusals or suggestions that the Applicant does not have adequate ties to their own home country or proof of funds comes to play.

The larger theoretical question, issue number four, is why for individuals who have refusals or inadmissibility that may not at all be related to Canadian immigration (e.g. a refusal from a third country with an entirely different immigration system), suddenly transforms the eTA into a Temporary Resident Visa application.

In my mind, an individual who has not found inadmissible to Canada should not have to submit the same (and in reality even more documentation) than an individual from a TRV-exempt country.  I don’t think, for example, that an individual’s history of refusals to the United States, Australia, or the U.K. should have an automatic baring on their entry into Canada.

This is where, I think it should be left up to Border Services Officers to allow the Applicant in after questioning at the Border. I have already been contacted by a few clients who had previously traveled to Canada on a regular basis with no problem, triggered now only by the eTA system’s survey of past refusals from other countries. I think if the eTA system itself already triggers a warning and advises the passenger that they will be asked further questions at the Port of Entry that this should be enough to serve the eTA’s dual deterrence and expeditious processing purposes.

I do also note that the way the eTA system currently works, there is no room for an Applicant to upload counsel’s submissions. There should be another column allowing for additional information to be submitted by the Applicant.

The fifth, and final issue, is timing and communication. The way the eTA is advertised now as a seven dollar application that should be processed in minutes gives the impression that an applicant can complete this process a day or at the most a week before their flight.

eta processing times

In reality, this process can be a battle of attrition and there are no clear timelines or processes to appeal or seek expedition. I don’t think judicial review should be the administrative solution to eTA refusals and I think IRCC should implement some sort of review/appeal process to ensure the eTA does not begin to hinder the important global mobility processes that occur every day.

Like any new system, I think the eTA is a work in progress. I think the rationale is fundamentally sound but the execution can be improved drastically.

Your thoughts on the above?

The Problem of Employer Reference Letters for Economic Immigration under Express Entry

The importance of employer reference letters  in today’s economic immigration system cannot be understated.

The current Express Entry process is largely applicant driven through self-declaration, up to and until the point a decision is made. With the Applicant essentially able to select the dates and self-select the National Occupation Code (“NOC”) to match their work experience, it is understandable that immigration must closely scrutinize the supporting documentation.

Indeed, there are several possible outcomes where required reference letters can be insufficient. Applicants can lose points for claimed work experience if the duties do not match up to the position claimed. If the points lost bring them below the lowest number of points during the draw which they were chosen they may deemed to be ineligible under A11.2.

Applicants can also found to have an incomplete application if required reference letters are missing altogether.

 

Challenges in Securing Documentation

The challenge lies, for many applicants, in securing this documentation. Granted, the supporting documentation is not needed for ALL positions. As IRCC has made quite clear in correspondence to immigration representatives (although they can make this clearer in their online material), only work experience that impacts the Comprehensive Ranking Score (“CRS”) is a required document. However, applicants are advised by IRCC to upload explanations in lieu. This often is true for accompanying spouses, but also possibly for Applicants if the work experience is in excess or outside of the amounts being claimed for points.

 

Challenges in Securing Documentation

Challenges obtaining reference letters also flow logically from employers that no longer exist, employers with whom the employer/employee relationship were not well documented, as well as previous employers with whom the relationship soured or is not currently on good terms.

Another issue I have realized is that by virtue of being called a “employer reference letter” many applicants provide letters that serve to be good character references but serve very little value in terms of their required information.

Indeed, as will be highlighted below, the requirements of a Canadian employer reference letter are very detailed and usually go beyond what is provided by Employers to individuals who are seeking to apply for a new position.

In fact, another challenge is that in many countries submitting employer reference letters that contain as much detail as requested by the electronic Application for Permanent Residency goes beyond what is legally permissible – in terms of domestic privacy laws. For example, I have learned that in Germany it is impermissible to include salary in employer reference letters. Applicants are forced to then supplement their applications with confidential contracts (etc) which create even more privacy and disclosure issues.

All of these may affect the quality, and ultimately the utility, of these reference letters.  These points have not yet been directly addressed by IRCC policy but in my mind should be moving forward.

A further major challenge which I will expand upon below, is that many large, reputable Canadian employers are unwilling to support their Employers with specific reference letters that set out the required

 

Reference Letter Requirements for Economic Immigration

To recap, the required documents for employer reference letters are highlighted in the screenshot below

Screen shot 2016-05-20 at 10.04.02 AM

Source: http://www.cic.gc.ca/english/resources/tools/perm/express/intake-complete.asp 

 

Employers Unwilling to Submit Anything Other than Generic Reference Letters

In conversation with several clients/employers, particularly large banks and telecommunications companies, I have heard that HR is only generally able to submit generic reference letters that confirm only the hours of work, salary earned,  and the title position of the employee. As per the above requirements, this is not nearly enough.

Recently, in order to try and gauge Immigration, Refugee and Citizenship Canada (“IRCC”)’s position on this letter, I submitted the following question to the representative’s mailbox:

Two quick questions:

1.       What is IRCC’s position on utilizing a generic employee reference letter with support provided by other employer-provided documentation (internal role profiles, etc.)? 

2.       In the event that the employers (many of them former) are unwilling to support the provision of new references, is there any guidance on how to assess employee submitted evidence in support of their own work experience?

The response I received, highlighted my understanding of the situation and how important it is for applicants to be aware and prepared to submit accompanying proof:

Under A11.2, an applicant must demonstrate that they met the minimum entry criteria (MEC) for Express Entry and possessed the qualifications for which they were awarded Comprehensive Ranking System (CRS) points, both at the time they were issued an Invitation to Apply (ITA) and at the time their electronic application for permanent residence is received.

 Please note that applicants must provide supporting documentation to substantiate the information provided in their Express Entry profile (on the basis of which they were invited to apply) and their electronic application for permanent residence (e-APR). 

As you are aware, a reference letter is an official document printed on company letterhead and must include your name, the company’s contact information (address, telephone number and e-mail address), the name, title and signature of the applicant’s immediate supervisor or personnel officer at the company.  The letter should indicate all positions held while employed at the company and must include the following details: job title, duties/responsibilities, job status (if current job), the dates you worked for the company, the number of work hours per week and your annual salary plus benefits.  The letter should indicate all positions held while employed at the company and must include the following details: job title, duties/responsibilities, job status (if current job), the dates you worked for the company, the number of work hours per week and  annual salary plus benefits.  As you may understand, a generic letter would not be acceptable.

 If an applicant is unable to obtain a reference letter, he/she may provide a letter explaining the reasons and provide any other documentation to satisfy an Officer of his claimed work experience. However, please note that the onus is on the applicant to demonstrate that he/she meet the criteria under A11.2.

Possible Solutions

Where Employer references are unavailable, I have utilized some of the following strategies:

  1. Advertisements from the company for the position;
  2. Internal role profiles;
  3. Paystubs;
  4. Internal Contracts; and
  5. Letters of Explanation/Statutory Declarations from the Applicant and/or colleagues or past supervisors.

There are likely many other solutions. Yet the rigidity of the employer reference requirements and the need to satisfy the far-too stagnant and inflexible National Occupational Code (“NOC”) system needs in my mind to be restructured.

I can see the challenges with using purely wage (in terms of artificial wage inflation, non bona fide employment,  and abuse of the system), yet the challenges applicants and employers have in addressing the NOC is a pressing issue for potential economic immigrants.

 

Challenge now is. How can we change this process for the better?

Expressly Challenging: A Numerical Analysis and Three Takeaways from IRCC’s 2015 Express Entry Report

On April 1, 2016, Immigration, Refugee and Citizenship Canada (“IRCC”) released it’s Express Entry Year-End Report tracking the progress of its economic immigration management system, Express Entry, since its inception in 1 January  2015.

Acknowledging the program’s growing pains throughout the report, overall IRCC seems to  insist that Express Entry has met its objectives so far. In the report, IRCC writes:

Express Entry was designed with three main objectives in mind: 1) flexibility in selection and application management, 2) responsiveness to labour market and regional needs and 3) speed in application processing. Although there have been adjustments to the system during its first year and policy concerns expressed by stakeholders, Express Entry has met its expectations.

This report,  Express Entry Year-End Report (EN) is filled with very informative statistics as to how Express Entry has been operating so far.

In my mind there are (at least) three important takeaways that I will explore in this post:

#1 – English/French Language and Canadian Temporary Residency appear to be major assets for Express Entry

Currently, official language skills make their way into economic immigration in several ways.

First, as a baseline requirement, an individual who wishes to qualify for the Federal Skilled Worker program needs CLB 7+. Scores lower than this would make the applicant ineligible for assessment on the initial points grid. For the Canadian Experience Class. there is also a requirement that the Applicant meet the language requirements of CLB 5+ for NOC B and CLB 7+ fpr NOC 0, A positions.

As provided by IRCC:

If an applicant has work experience in both NOC 0, A or NOC B occupations, the applicant must satisfy the officer that they meet the minimum language proficiency threshold for the skill type/level in which they have obtained most (i.e., more than half) of their qualifying work experience [R87.1(2)(e)].

Once in Express Entry, language factors itself in up to 410 of the available 600 points (360 for most candidates). Those without strong language scores will inevitably be stuck in  a Comprehensive Ranking Score (“CRS”) range currently not being invited to Apply for Permanent Residency.

The report seems to concur with this theory. Looking at the top 10 source countries of citizenship for Express Entry, one can adduce that English/French language skills poke its way into the selection process.

The report listed the top 10 countries of citizenship for those who receive Invitations to Apply (“ITA”) allowing them to apply for permanent residency via an electronic Application for Permanent Residency (“eAPR”). You will note that 8 of the 10 countries listed have English or French as an official language.

Screen shot 2016-04-03 at 8.27.07 AM

Countries of residence also appear to follow a similar trend, with the added fact that a large majority of those successful in obtaining an ITA reside in Canada. These are individuals who can we deduce have first come to Canada, likely as temporary resident workers or students.

Screen shot 2016-04-03 at 8.37.08 AM

I do wonder what percentage of these stats are skewed by the use of authorized representative portals but nonetheless it still suggests a key trend that language and Canadian residence matter.

Perhaps, the above stats change the way we as practitioners may want to advise those without Canadian temporary residency/work experience. Rather than suggesting that the client “do another language test and increase their scores”, there may be some benefit to crafting a short-term strategy (based on work or study) that could potentially lead to eligibility under the Canadian Experience Class. The added benefit is such a strategy would likely increase their possibility of obtaining a Labour Market Impact Assessment (“LMIA”) based offer of arranged employment or a Provincial Nomination.

You can also see this reflected in the fact that final decision processing for Canadian Experience Class is 1.3 months faster than for Federal Skilled Worker presumably due to the scrutiny required with overseas-based qualify work experience.

Screen shot 2016-04-03 at 10.15.13 AM

#2 – Applications are being bounced more than refused and at a higher rate than one would expect

As I discussed in an earlier post commenting on the trends I was seeing with Express Entry incompleteness/refusals, the problem of bounced applications is a major barrier to applicants.

Express Entry applications can be bounced for a variety of factors. Some of the common ones are:

  • Missing police certificates or certificates not yet received (very prevalent due to change in rule requiring police certificates for countries resided in cumulatively for 6 months or more and well-documented FBI police certificate delays);
  • Insufficient letters of reference (often times challenge in getting references for old jobs or where old employers refuse to provide adequate letters);
  • Failure in properly uploading complete documentation; and
  • A11.2 findings where an applicant has had a birthday, a new child, forgotten/failed  to submit a document or new evidence that has now decreased their points etc.

This is just to name a few.

The 2015 report seems to confirm that bounced applications are a big problem for Express Entry;

Screen shot 2016-04-03 at 8.47.24 AM

If we go back to our overall chart for final processing, we see that out of the 16,491 applications finalized, 14,058 were approved and 2,433 were refused.  On the surface, this statistic does not look bad and accounts for a ratio of about 5.78 Approvals to 1 Refusal.

However, if we look at this other statistic from earlier in the report, the situation looks much more bleak.

Screen shot 2016-04-03 at 10.31.54 AM

This statistic tell us that out of the 37,424 applicants (21,562 applications received), 15,246 are in progress and 14, 058 have been approved. Doing simple math, we are left with 22, 178 applicants received of which only 16,491 were finalized as approvals/refusals. From this, we can deduce the bounce/incompleteness  rate to be somewhere in the neighbourhood of ([22,178-16491]/22,178) or 25.64%.

The consequences of a system where 1 out of 4  eAPR applicants are not even making it to a final decision (some perhaps through abandonment) are staggering. It means the system is not as intuitive as it can be and there is much room for improvement. It also means that Applicants may need more legal advice than they are currently seeking out for Express Entry.

 

#3 – The Backlog from Pre-Express Entry Continues to Exist and Eat Up Cap Space

If we return to the Conservative Government’s 2015 immigration levels plan, we can see how much of that space appears to have been made up of Express Entry.

In 2015, the projections were:

Screen shot 2016-04-03 at 9.38.17 AM

Assuming, just the low for now the projection was for 68,000 economic applicants to be granted permanent residency.

We know the actual number of 2015 Express Entry Approvals were 14, 058.

There are two possible conclusions from this. Either a majority of processing (79%) is still occurring on backlogged Canadian Experience Class/Federal Skilled Worker files from before January 1, 2015 or the Government has grossly missed its economic immigration targets for 2015.

In 2016, it now seems somewhat more understandable that the Liberal Government would reduce its target to 58,400 by 25,600. Perhaps Express Entry is indeed a system where promising less and delivering more may be the best strategy.

 

Conclusion

Many applicants and their representatives around Canada have been expressing their frustration with Express Entry. It appears that those frustrations are understandable. The old, the non-English speaking, even the slightly imperfect applicant is subject to either a low score or a bounced application.

With even lower projections in 2016 and no sense that the scores will be raised to unattainable thresholds, the only logical consequence is more refusals and bounced applications.

Applicants through Express Entry may want to think of pursuing dual intent (concurrent permanent and temporary) options or seek assessment under a provincial nomination program while Express Entry figures itself out. One of the strategies IRCC should employ, in addition to further educating applicants, is a secondary review/reconsideration mechanism.

Counsel for these Applicants should also be reviewing refusals more closely. Several of my colleagues have seen their Judicial Review practice increase quite significantly and many of these refusals/incompleteness findings are being overturned prior to the case ever reaching the Courts.

 

 

Not-So Hidden Prejudice: Visa-Office Specific Document Requirements and Chinese Applicants

Canada’s historic mistreatment of Chinese migrants through immigration policy and law, though under-appreciated, cannot be understated.

It began with the introduction of the Chinese Head Tax in 1885. This led to the Government to carve out the Chinese Exclusion Act of 1923. It was not until 1967, that  race and ethnic origin were removed as a valid consideration of inadmissibility in 1967. However, even after this date – spouses of Chinese applicants faced greater scrutiny and heavier requirements.

One would assume that in 2016, any government-endorsed effort (asides from the visa requirements that a nation is legally able to set out), that treats individuals of one nationality different than individuas of another may evoke some concern.

I have ALWAYS denied that institutional-supported discrimination exists in Canadian immigration. Have I seen one off cases? I have certainly read my fair share of visa officer decision and member decisions that could have been much more culturally sensitive. In many of these cases, competent counsel took their cases to appeal and judicial review and won on those grounds. Rare wrongs that mostly were righted at the end of the day.

Even, in the  face of the May 2015 debacle where “uneducated” Chinese students in relationships with Canadian sponsors were revealed as a triggering characteristic for bad-faith/marriages of convenience, I somewhat accepted the then government’s response/defense. If there was a heavy incident of fraud among Chinese applicants, having an internal guide to try and shutdown the fraud  can be somewhat  justifiable in the circumstances.

As well-documented, the current Liberal government is focused on “sunny ways.” Many of us can feel the many rays of light that this has brought – be it through increasing family class sponsorship numbers or ending several court interventions relating to immigrant rights.

However, there are still some dark undertones in the system, recently updated and reviewed, that in my opinion still exist.

Specifically, I think these elements project Chinese applicants in a negative light, reinforce negative stereotypes, and ultimately should be  amended or eliminated in an effort to re-enforce the government’s commitments to the Charter and equality.

 

Example 1: Visa Office Requirements China v. Western Europe

As a bit of a juxtaposition, I want to put up the Visa Office specific checklists for two visa posts – the London Visa Office and Beijing, Shanghai, Hong Kong China (Chinese) offices for study permit applicants. These form the basis of supplemental documentation required by the Visa Office to make a decision on a particular application.

Here is the one for London Visa Office:

UK Study Permit RequirementsIn the event the picture is too small, the additional documents are made up of only a ‘proof of employment or current studies’, ‘evidence of previous studies and travel’, and proof of income. For purpose of study, only a CV and any additional documents showing why you want to study is required.

Let’s move now to the Chinese Offices

The preamble…..

 

 

Preamble to Chinese Study Permit App

Before we begin, a preamble. Unlike for London, for China we see immediately that Immigration is concerned about complete, truthful and accurate materials and failure to do so could lead to fraud.

I have no qualms about this particular warning. I think the integrity of our system needs to be protected above all else.

However, I do not think it makes sense to include this only on the Chinese form and not the form for other countries.  Perhaps, China statistically has higher incidents of fraud than other countries. This is certainly something that needs to be addressed – and must be through greater regulation of those who are providing immigration advice. However, to slap a misrepresentation warning on one group because of a perceived reputation of that group is the definition, in my mind of, the word  ‘prejudice.’ Imagine, if the goverment’s checklist warned all Middle Eastern study permit applicants that it was against the rules of immigration to be a member of a terrorist organization.  The effect is the same here.

After this preamble, in my opinion more questionable content:

Required Docs - Chinese study permit - 1

For an applicant apply through the London Visa Office, there is no requirement for the disclosure of information relating to the applicant’s mother and father.  As this application does not age discriminate, even a 30-year old applicant must provide information about his/her father and mother in order to meet this requirement.

From my perspective, this is a view of an Asian ‘student’ as being an individual low on self-reliance and self-independence – inexplicably tied to their family rather than to self.  Again, I have no qualms with requiring each family member to fill out a form – but should this not be a global requirement for visa offices?

 

 

Requried Docs - Chinese study permit - 2

Next, a study plan. Note that is much more detailed than the one for London. Finally, you have a list of notarized documents, for college, senior high school, and including all transcripts. From a cost perspective, notarized documents with certified translations can run up to 400-600 RMB (equivalent to CDN 100-150) per document. Easily making the immigration process an additionally CDN $1000 more expensive.

For applicants who have not already visited Canada or the United States on a valid visa, the document requirements are even higher.

Docs - dependent on what type of application- China study 2

We see again, a concern with not only the Applicant’s employment put the employment of the parents and any financial support. The details required to be divulged are quite detailed.

China Docs - All other students 2

In fact, the checklist gets detailed to the point of requiring that if an applicant’s parents must provide details about their business registration.

In my opinion, if you make this a requirement for one, it should be for all. Furthermore, I would suggest that the students that you genuinely want in Canada are those who may not be able to shell out CDN $1000 for transcripts, whose parents aren’t necessarily bankrolling their education or running businesses, and who wish to study here on their own merit. None of this is contemplated, within the supplementary form. This creates several challenges, particularly where you have a potential student applicant who may not be under the care, auspice, or even favour of their parents in trying to pursue Canadian education.

 

Example 2: Warning Message – Application to Sponsor a Family Member Outside Canada (China v. Western Europe)

Beyond the study permit context, there is also a similar type message for Canadian/PR spouses sponsoring their loved ones from abroad.

Here is the beginning of the guide to Western Europe:

Screen shot 2016-03-20 at 12.03.13 PM

 

Here is the beginning of the guide to China:

 

Screen shot 2016-03-20 at 12.02.40 PM

Other than the fact that the 2-years for misrep should actually say 5-years (as of the January 2016 date that it was last update), I have serious concerns with the implication of warning one group but not another.

As this is a guide for both sponsors and applicants, as a future sponsor of an applicant from China, I feel like I am beginning purposely pointed out as a potential for fraud simply based on the nationality of my future spouse.

To compare, I did a spot check on other guides. This same warning does not exist for India, Japan, or even Africa. However, it does exist for  the Middle East and Central Asia applicants:

Screen shot 2016-03-20 at 1.48.04 PM

Indeed, it you want to read into a little more the box is even bolder in font for Middle East and Central Asia warning of misrepresentations. Accident or not, it is clear and obvious that the visa office requirements, and by extension the Canadian immigration system, is not treating all applicants similarly.

More Evidence – More Problems

Perhaps a defense that may be raised to the hierarchy of ‘distrust’ argument, is that India’s guide does not discuss fraud, even with it’s pre-existing reputation. If it is indeed, right now, the decision of individual visa offices to choose the content on their office-specific forms, I would argue that more harmonization is desperately needed.

In my opinion, a fair and just immigration system treats applicants and potential applicants as fairly and equally as possible without pre-conceived notions as to who they may be and what they may do, without evidence.

Warning an applicant from a particular country or region without warning another is a preconceived notion.

The fact is these requirements, directly affect results as well. I have seen more than one refusal decision where an female applicant from China was called “young” and “mobile”, leading to the conclusion she would not leave after the end of her intended stay – a requirement for temporary residents.

Furthermore, the documents themselves pose major privacy and even evidentiary issues. The more evidence an applicant provides in an immigration context, inevitably the more scrutiny they will face in so-doing. From an applicant’s perspective, the more they are being scrutinized, the more they will think that there is a distrust of them.

Additionally, the document quality standards in most countries pale in comparison to the Canadian standards. In many countries and particular poorer/less affluent regions, translations into English/French are not accurate and prohibitively expensive.

Fraud needs to be combatted, but at the same time it needs to be done in a way that equal, just, fair, and upholds the value of our Charter – one that does not discriminate by nationality.

 

Don’t Shoot the Airline Company- CBSA’s IAPI is the other side of the eTA

155278373 aircraft stock

There is no doubt that Canada’s electronic Travel Authorization (“eTA”) regime, set to go into full legal effect  a little over a month from now, will be disruptive to the process of travelling to Canada.

As I have covered in an earlier blog on the topic, the eTA will create several consequences for those seeking entry by air into Canada. Some of the expected follow out could include permanent residents being trapped outside Canada with expired cards, Canadian dual citizens lacking proper documentation unable to fly home, and foreign nationals being unable to board planes to Canada. It will also have spillovers to those seeking to enter by land via private vehicle. One immigration lawyer suggested jokingly that a local U.S. land border was likely to get very busy due to the number of individuals forced to drive across in private vehicle in order to return to Canada. Individuals who drive by private vehicle are not under a  requirement to produce a valid PR card upon entry.

This all begs a question.  How will the eTA be enforced from the other side – by airlines companies? To look more closely we need to study Canada Border Services Agency (“CBSA”) Interactive Advanced Passenger Information (“IAPI”) system and the increased role airline companies now play as the front line to screen out individuals flying to Canada with improper/expired documents.

IAPI

Prior to the eTA, individuals with expired permanent resident cards has several options. One of them (for individuals who did hold travel documents), was to present a visa-exempt passport in order to get past airlines and hop  the plane. Upon arrival they would then attempt to enter Canada on the basis of the expired PR card and a confirmation of permanent residence. For many  passengers this worked. Very little was done to keep the individual off the plane and little was enquired of the passenger’s immigration status.

IAPI changes that by requiring that “pre-departure traveller and flight data to be submitted by commercial air carriers prior to an international flight’s departure for Canada.”

For all international flights for Canada, CBSA will both require the advanced passenger information and ultimately issue a board/no-board message for each passenger. This means that prior to the flight, CBSA will no whether an individual is required to have a valid travel document (eTA or visa), is a permanent resident, or a Citizen. They will also be able to track if the individual is subject to a removal order or an Authority for Negative Discretion (“AND”).

The technical nature of the IAPI system is at first glance very confusing and complex. I expect that the airline companies that already have state of the art IT  will likely try and figure out internal systems to facilitate the provision of passenger information to CBSA.

Exit Controls Coming Soon.

The next major development will be the implementation of exit controls, which to my best estimate will occur sometime in early-mid 2017. From my review of CBSA briefing material for airline companies, much of the technical infrastructure is in place for this already. Once exit controls get rolled out, I think we can see integration with both PR and Canadian passports as well allowing the CBSA to better track and record the entries and exits of all air and land border.

For more information about the eTA, IAPI, and how it may affect your travel plans feel free to email me at will.tao@larlee.com

CIW Post #3 – Not All Trade Agreements Treat Professionals the Same

We’re extending the CIW (Corporate Immigration Week) to the end of the month! 

R. 204(a), of the Immigration and Refugee Protection Regulations (“IRPR”)  provide certain Professionals exemptions from the onerous Labour Market Impact Assessment (“LMIA”) process.

Whether a Professional qualifies depends on the specific Trade Agreement Canada has entered into and the terms of the Trade Agreement. Each Trade Agreement has it’s own unique textual nuance that can have quite dramatic effects in whether the exemption can practically apply.

In this piece, we will look at the North-American Free Trade Agreement (“NAFTA”), Canada-Columbia Free Trade Agreement (“CCFTA”), Canada-Korea Free Trade Agreement (“CKFTA”), and the soon-to-be signed/may be ratified Trans-Pacific Partnership (“TPP”).

NAFTA

Under NAFTA, a party shall grant temporary entry to a business person seeking to engage in a business activity at a professional level in a profession set out in Appendix 1603.D.1. Appendix 1603.D.1 contains around 63 different professions/subprofessions that qualify.  Among the professions, lawyers are included. The Minimum Education Requirements and Alternative Credentials are listed in the chart – most requiring a Baccalaureate or Licenciatura Degree; or a post-secondary diploma/professional license depending on the profession.

It is also important to note that NAFTA does not specifically cover the spouses of Professionals but spouses of NAFTA Professionals, who by nature of their positions are in a Skilled National Occupation Classification (“NOC”) Code under NOC 0,A,B, are eligible for a open-work permits pursuant to R. 205(c)(ii), code C41.

CCFTA

Under the CCFTA, professionals are defined as follows:

professional means a national of a Party who is engaged in a specialty occupation requiring:

(a) theoretical and practical application of a body of specialized knowledge and the appropriate certification/license to practice; and

(b) attainment of a post-secondary degree in the specialty requiring four or more years of study, as a minimum for entry into the occupation;

CCFTA includes a list in Appendix 1203.D of the 19 occupations that are not included as professionals under the agreement. Several social sciences professions, in particular judges, lawyers, and notaries are excluded.

What sets the CCFTA apart is a seemingly minor footnote detail. It states under footnote 2 (attached to the definition of professional).

In the case of Canada, these requirements are defined in the NOC.

Unlike NAFTA, the CCFTA does not contain a table list of minimum educational requirements and alternative credentials. A CCFTA professional must meet and is guided by the NOC requirement.

For example, for Civil Engineers (NOC 2131) and Computer Engineers (NOC 2147), the NOC requires the following:

  • Licensing by a provincial or territorial association of professional engineers is required to approve engineering drawings and reports and to practise as a Professional Engineer (P.Eng.).

The contrast between CCFTA and NAFTA is strong in the sense that a Bachelors degree appears all that is needed for NAFTA’s qualifications while a provincial license appears necessary under the CCFTA for several required duties.

It is to be noted that the CCFTA does create an specific exemption (T25) for spouses of successful CCFTA work permit applicants, allowing them to obtain open work permits.

CKFTA

The CKFTA provides yet another different classification of professional. The CKFTA provides one general definition but also two-subcategories.

The general definition is:

professional means a national of a Party who is engaged in a specialty occupation as stated in Appendix 12-A-2 who is not engaged in the field of education; and

Specifically, professionals are split into two categories.

contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied. The contract and duration of stay shall comply with the domestic law of the other Party;

independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level, provided that the person possesses the necessary education, or satisfies accreditation or licensing requirements as stipulated for the profession;

IRCC clarifies how the two different professionals are to be assessed: 

Professionals (work permit required / LMIA exemption code T23)

The Canada-Korea FTA differentiates between two types of professional—the contract service supplier and the independent professional. Both must be requesting entry to provide a pre-arranged professional service and possess the necessary education, or satisfy accreditation or licensing requirements, as stipulated for the profession.

The following definitions apply:

  • contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied.
    • example: A Canadian high tech company contracts the services of a Korean firm to provide services in the field of engineering. An experienced software engineer employed by the Korean firm in Seoul seeks entry to Canada to provide the engineering services under the terms of the pre-arranged services contract.
  • independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level.
    • example: A self-employed Korean management consultant seeks entry to Canada to provide services to a technology company under the terms of a pre-arranged contract.

Similar to the approach used in the NAFTA, the Canada-Korea FTA uses a positive listing of professionals (set out in Appendix 12-A-2), however, it is divided between Contract Service Suppliers and Independent Professionals, as coverage in each category differs.

This provision is quite unique as it suggests that a Korean national cannot be employed (as an employee) by the Canadian entity but rather either has to be an independent contractor OR an employee of the Korean entity that has contracted with a Canadian entity.

In effect, for several Koreans seeking to use this exemption as a temporary bridge to future permanent residency options and who may previously or continue to work for a Canadian employer, they would necessarily need to reformulate their employment contracts.

It is to be noted that CKFTA does create an exemption (T25)  for spouses of successful CKFTA work permit applicants, allowing them to obtain open work permits.

TPP

Canada’s commitments under the TPP with respect to Professionals shows a tightening up of the category. The scope of the TPP’s extension of R.204(a) LMIA exempt work permits is enormous.  It covers countries including Australia, Brunei, Chile, Japan, Malaysia, Mexico, and Peru . While there are several industry restrictions for each of these countries, I expect the effect of TPP on the foreign worker landscape in Canada will still be pronounced.

For example, an Australian national who obtains a Canadian Bachelors degree graduating at the age of 21 arguably could theoretically (assuming no application of the four-year cap) apply for a post-graduate work permit (up to 3 yrs),  the working holiday/young professionals plus international co-op (up to 3 years), and the TPP (1 year initially) for a combined 7-years of employment in Canada without the need for a LMIA or an Application for Permanent Residency.

Understandably, the restrictions on the professionals are tighter than they are for NAFTA, CCFTA, and the CKFTA aookucabts. For starters, the initial  work permit is to be issued for one rather than two years. Importantly, the definition of professional is also stricter:

professionals means business persons engaged in a specialty occupation requiring:

  • (a) theoretical and practical application of a body of specialized knowledge; and
  • (b) a post-secondary degree of four or more years of study, unless otherwise provided in this schedule, and any additional requirement defined in the National Occupation Classification, and
  • (c) two years of paid work experience in the sector of activity of the contract, and
  • (d) remuneration at a level commensurate with other similarly-qualified professionals within the industry in the region where the work is performed. Such remuneration shall be deemed to not include non-monetary elements such as, inter alia, housing costs and travel expenses.

In addition to the CCFTA’s requirement that the NOC requirements also be met. There is also a requirement for two years of paid work experience in the sector and remuneration at a commensurate level (which I expect  would be prevailing wage as per Job Bank).  This exemption will be very difficult for a transitioning post-graduate work permit holder to meet so expect it mainly to be used for senior employees/contractors unless the provision changes.

Conclusion

NAFTA, CCFTA, CKFTA, and the pending TPP all provide very interesting insight into the nuances but important differences in each Trade Agreement and how they affect immigration options.

I would be happy to assist any individual from any of the Trade Agreement countries in figuring out how an LMIA exemption can be used for them either in a primary or secondary role to support work/future permanent residency ambitions in Canada.