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OPINION: IRCC Should Prioritize Work-Permit Holding Self-Employed/Contractors Seeking PR via Express Entry
As the debate goes on over whether the changes to Express Entry allowing for the Minister of Immigration, Refugees and Citizenship to tweak invitations and draws to target specific occupations or groups, I have a suggestion in the case it does go that way.
The current system of Canadian Experience Class (“CEC”) and Federal Skilled Worker (“FSW”) (and how the points are divided up) is at odds with the way the economy and workforce is going – around the issue of self-employment/contract work. Anecdotally (I do not yet have stats on this), individuals are now more interested in the gig economy, the ability to pursue multiple opportunities, of working virtually. Many of these types of opportunities are provided a contractor/self-employed basis.
Canada’s much-maligned self-employed program is both limited in scope (with a focus on athletics, arts, music requiring a certain level of cultural activity/world class performance and farmers) and in the excessive processing delays and lack of regulation to ensure carry-through of successful applicants. Spots are few and those clients of mine who have gone through the program recently have taken many years of precarious status to get to the finish line.
What I have seen a trend in at my offices over the pandemic and into this post-pandemic, are individuals who are self-employed/contractors in Canada – many either doing work that does not meet the requirements of the self-employed program but in other areas of research (on grants) or contractual work (as entrepreneurs and small businesses owners) who are excluded from the CEC. While their work counts towards the FSW, because their work does not count towards the Canadian Work Experience points, they often fall short of the draws.
If IRCC does choose this model of micro-managing and selecting occupations and subgroups, perhaps one group that could get early attention would be these individuals. They would not be hard to find in the system. Ask that applicants update their profile to also include self-employed/contractual history in Express Entry, and to put it in the work history section (rather than just in personal history). Based on these submissions, scoop a portion of them through an FSW draw specifically aimed at those who have Canadian contractual/self-employment experience in the past three years.
I really hope we shed light on this group. Among a recent consultation I had was with a PhD researcher who as been in Canada since high school, but because they are performing their work (equivalent to full-time hours) on a grant rather than as an employee they cannot get the extra points to be selected as current Comprehensive Ranking Score (“CRS”) thresholds. Because they are older (having chosen to go the PhD route), they lose points for language. An individual like this is forced by our Economic immigration options to abandon the research they are doing – which significantly benefits Canada – in order to likely hold a survival skilled employment position for a year, only to return back after becoming a PR. This defies logic and does not support our overall goal. Employers, I can even draw an example of my own legal industry, increasing are relying on contractual arrangements to keep doors open and indeed, the flexibility of choosing hours and balancing hybridity (not to mention the potential tax benefits for contractors/self-employed individuals) make these models also attractive for those we contract with.
I hope we shed light on how we are falling short and find solutions to help this important subset of migrants seeking permanency and support in Canada.
Harvester: Why IRCC is Harvesting Your Submitted Application Documents With Their Latest Automation Tool
We have re-produced IRCC’s Harvester user guide from 2021 below (with additional redactions added to preserve passwords that were likely erroneously disclosed).
Harvester Program Guide_Redacted 2_Redacted FINAL
What is Harvester?
Per page 5 of the PDF, it is an automation tool that downloads eDOCs from GCMS and organizes (read: reorganizes) the file using clear detailed names. The use of Harvester has improved productivity in pre-assessment by over 25% with minimal training.
Like Chinook (and compatible with Chinook), it also uses an Excel interface and Microsoft Access. Documents are harvested in silos, allowing an Officer to secure, control, and monitor access to a file. Reading between the lines, the use of Microsoft Access also allows all documentation to be displayed on one horizontal screen (to be used , alongside GCMS, and Chinook in a streamlined way. 7-zip is used to encrypt the documentation and similar to Chinook there’s a deletion system after use. Importantly, there appears to be added security functions on who can access the documents and also a trail of records for auditing. I suspect that this could come in handy in future litigation with respect to whether documentation was considered or not. Some docs are excluded from Harvester – either purposely by an Officer where the visa officer does not need to review said doc OR if the harvest does not succeed. I was not able to gleam from my reading where harvests are unsuccessful but one must assume there would be some tech explanation.
Much like Chinook, it appears quite innocuous on the face. It speeds up assessment, heck even I could use a Harvester download and saving (automating) the organization of a file before I review – tasks we often leave to legal assistants and case managers.
However, there may me more than meets the eye. We’re getting a clearer picture of what the Officer actually sees in front of them when they render a decision. What the Chinook 3+ Platform looks like, the various tools and prompts that may or may not be providing information to guide a decision being rendered. Harvester is another one.
I would love feedback from our readers to see if they have any ideas but at this stage, I am looking at a couple major ones.
- Does the way we name and number our files mean anything any more? We often are creative with the way we try and flag specific names or combine documents, but how does Harvester extract or parse this apart? Is Harvester used (usable) on all apps or just select types that are already streamlined online?
- How meaningful is the ability to view the documents on Microsoft Access. From my understanding Harvester replaces the need to utilize other applications such as possibly PDF, Word, or an image reviewer. What does that mean for the way an Officer scrolls through various documents. What other tools does Microsoft Access provide in this regard (I’ve only watched a few online videos so maybe some of the tech-minded can advise);
- Why are there silos created for multiple applications? I am concerned again about this ability to string together various applications and harvest all at the same time. Is there a purpose to this? It would make very much sense within a family of applicants to be able to do so, but why would multiple applications un-related be harvested unless its simply to get the files ‘set up’ for review.
Would love for some of you to take a look at Harvester and let us know what you think!
Delaying Decisions on Post-Graduate Work Permit Refusals Have Cruel Implications + Creates Backlogs
(First of all – Happy New Year! I might not be very happy in this post, so I’ll get it out of the way first).
For the past month, we have been dealing with several inquiries from folks who have been refused Post-Graduate Work Permits (PGWPs).
These have mostly been for small administrative issues such as a failure to send a proper final transcript, pay appropriate fees, or uploading issues. Some other cases are those where there is one semester that was not a final semester and that was part-time, usually do to some school scheduling or academic issue. Many had increasing mental health challenges due to COVID-19 related issues, such as the passing away of family members and the need to travel back for those arrangements.
The crux of the problem is that these applications are being refused more than 180 days after the Applicant completes studies. Why is this significant? Well, even though an Applicant is able to restore their status within 90 days of losing their status, at 180 days after the completion of studies, the restoration to PGWP option ceases to exist. Applicants are required to apply for a PGWP within 180 days of completing studies.
Restoration, becomes therefore meaningless as an option outside of the 180 day window. This leads to two applications flooding the system.
- Reconsiderations – many of which (time and time again I find) fail to address the legal test for reconsideration as set out by IRCC and as I have discussed in this past blog.
- Temporary Resident Permits – we have been retained for several of these of late and unfortunately it is heading to the 8 month + range for a just graduated student to wait which is simply not feasible for most.
- Unnecessary Return to Studies with Unclear Implications of Past Studies – many students go back to school – which makes sense from a Diploma to Bachelors level (perhaps) but for many who graduated from a Bachelors or higher, it really makes little sense to force them to take another program. These decisions are being made rushed, finances are being secured urgently (but with huge impact to families) – all to have to remedy a small admin or one part-time semester issue. It truly is overdoing things.
IRCC needs to urgently render timely decisions on study permit refusals – I would argue 90 days from a student’s completion of studies (i.e. less time if the student applies later) is an absolute maximum time that can be taken (freeing up another 90 for restoration in a feasible time). Given the use of Artificial Intelligence (“AI”) in this space, it should free up Officers to consider some of these cases where there may be admin issue to see if it can be addressed in reconsideration or in applying discretion, rather than having to put students in the loop. Right now, the Courts, are taking a position there is no discretion so litigation is of limited use to force change.
If in fact, the refusal of PGWPs is now a policy directive to try and tackle the backlog or filter the number of PGWP holders perhaps this should be communicated. Students could choose to transition out of classes back home, or return back after graduation, rather than stick around in limbo waiting for a TRP.
Too many mental health issues are being burdened by students who simply are going things that students go through, such as taking part-time classes to better their education outcomes or to save money. Students are making honest mistakes following confusing immigration application instructions. They should not be punished the way they currently are under our Canadian immigration system.
Agree? Disagree? Feel free to engage with me on Twitter or email me at firstname.lastname@example.org with your thoughts.
Five AI-Decision Making Questions We Need Answers To From IRCC
In this short post, I will canvass five relatively urgent questions we need the collective answers to as we represent clients who are now being addressed by artificial-intelligence built decision-making systems. For clarity and to adopt IRCC’s status quo, I will not consider Chinook to be one of those systems, BUT it is clear Chinook interacts with AI and the role of Chinook as it pertains to decisions, especially as advanced analytics skips eligibility assessment become increasingly more important.
1) If IRCC is basing Advanced Analytics decisions of historical data, what historical data is being utilized? Does it represent a reasonable/ideal officer and how can it be re-programmed?
How do we ensure it represents an ideal period (not a stressed officer/overburdened)? IRCC has been overburdened with applications for the last decade having to create systems to shortcut decision-making and has been openly acknowledging their resource crunch. If historical data does not represent what we want for future processing – how can projections be changed. How, in practice, does bias get stripped or de-programmed out of data? We have seen positive impacts (for example Nigerian study permit approval rates) since recent advocacy but is that programmed in manually by a human? and how?
2) How does Advanced Analytics interact with Chinook?
In the past Chinook was utilized for only a portion of cases, we understand to both bulk approve cases and bulk refuse. If Advanced Analytics serves to provide auto-positive eligibility, why is Chinook even needed to sort the Applicant’s information to decide whether to approve or refuse. Is there column in Chinook that allows an Officer to see if Eligibility has already been met (i.e. it was AA’d) and therefore altering their application and use of Chinook? The fear is Chinook becomes just a refusal tool and is no longer needed for approvals.
Furthermore, what does an Officer see when they have to perform eligibility assessment? Are they given any information about data trends/key risk indicators/etc. that Advanced Analytics helped generate presumably during the triage? Is it something the Officer has to dig for in separate module of Chinook or is it displayed right in their face as they render a decision to remind them?
Are Officer’s made aware if a case goes into manual review for example as QA for an Automated Decision? How are those cases tracked?
3) What is the incentive to actually process a non-AA decision if AA decisions can be processed more accurately/quickly?
For those files that are triaged to the non-Green/Human bin, if it becomes a numbers game and the situation is no longer ‘first in, first out’, why even process the complex cases anymore? Why not fill the slots with newer AA/low risk cases that will create less challenges and just let decisions that are complicated or require human intervention to set for one, two years until the Applicant seeks a withdrawal? Other than mandamus, what remedies will Applicants have to resolve their cases. It is simply about complaining hard enough to get pulled out of review and for an eventual refusal? How do we ensure we do not refuse all Tier 2/3 cases as a matter of general practice as we get more Tier 1 applications in the door (likely from visa-exempt, Global North countries).
4) What does counsel for the Department of Justice see in GCMS/Rule 9 Reasons versus what we see?
Usually, the idea of a tribunal record or GCMS is that it a central record of an Applicant’s file but with increasing redactions, it is becoming less and less clear who has access to what information. Client’s are triaged utilizing “bins” but those bins are stripped from the GCMS notes we get. Are they also stripped for DOJ or not? Right now local word flags and risk indicators are stripped for applicants, but are they also stripped for DOJ? What about the audit trail that exists for each applicant that we have not been able to obtain via ATIP?
Taking it a step further – what constitutes a Tribunal Record anymore? Is it only what was submitted by the Applicant and what is in the Officer’s final decision? I know my colleague, Steven Meurrens has started to get even email records between Officers, but there’s a lack of clarity on what that Tribunal Record consists of and whether it necessarily must include the audit trail, risk indicators, and local word flags. Should it include the algorithms?
How does one even try to make fettering arguments if we do not know what the Officer had access to before rendering a decision (how they were possibly fettered)?
The other question becomes how do we let the judiciary know about these systems? Does it go up as a DOJ-led reference (and who can intervene and be on the other side)? The strategic litigation likely will be implemented again in a weak fact case. How do we ensure counsel on the other side is prepared for this so they can not only fight back but provide a counternarrative to the judiciary on these issues?
5) Will the Triaging Rules ever be Made Public?
Currently, the AI is quite basic from our understanding. There are key rules inputted and applications that meet the requirements go through a decision-tree that leads to auto-eligibility approvals. However, as these AA programs adopt more machine learning components, allowing them to spot out and sniff out new flags, new rules, new issues – will there be some transparency around what the rules are? Should there be different treatment between rules that are more on the security/intelligence/system integrity side versus more black and white rules such as only individual applicants can get tier one processing, or applicant’s must not have had a previous refusal to benefit from X, or holding a U.S. visa or previous Canadian visa over past ten years is a Tier 1 factor.
If the ultimate goal is also to use these rules to try and affect processing (lower number of applicants and raise approvals), presumably telling the public these factors so they may be dissuaded from applying when they do not have a strong case could be of benefit.
Just some random Monday morning musings as we dig further. Stay tuned.
My Value Proposition
My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.
You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.
I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.
I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.
I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.
I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.
I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.