In this post, I announce that I am providing Canadian Immigration Second Opinion Services (#CDNIMMSOS). I would like you to tag this hashtag on Twitter, Facebook, or in an email to us, whenever someone in your network needs a second opinion on their immigration matter. I pledge to do provide this opinion affordably and with your (the client’s) best interests at stake, with the support of my competent legal team at Heron Law Offices.
First, A Bit About the Why
Over six years now in this industry, and as a Canadian immigration lawyer – and I have to admit things have changed.
When I entered practice, we were in the midst of an enforcement-minded Conservative Federal Government. I remember doing many detention reviews, Immigration Appeal Division matters, and judicial reviews. Post-Graduate Work Permit refusals were frequent and the lapse time between refusal and removals was much shorter.
Back then too, there appeared to be less chefs in the Kitchen – or at least everyone knew who the good chefs were and went to them. Nowadays, and a credit to our industry and incredible Continuing Professional Development (CPD) programs, very good young lawyers and extremely competent immigration consultants have received top notch training. The overall quality of Canadian immigration work has increased. We have also seen the entry of accounting firms, and other service providers that are able to do volume work.
Government too has carved out a much more Do-It Yourself (“DIY”) approach to immigration processing. Their new portals, centred on the user experience, will drastically change the role of immigration representatives from primary applicant shoe-filler to support (and possibly tech support worker).
I remember when Express Entry was in its infancy and applications were being rejected as incomplete, front, left, and centre. Now there are some incredible video tutorials and courses (my mentor/colleague, Mark Holthe’s just to name one).
There is also a major change coming with the new College of Immigration and Citizenship Consultants. These changes will put more scrutiny on the flow through of recruitment fees. The Code of Conduct will hopefully ensure that representatives for employers are not utilizing the client as a vehicle for generating additional revenue – a process that has been at the heart of labour market exploitation.
There is a Risk to All This – A Less Than Competent and Non-Partial First Opinion
We have seen the explosion of online and social media driven immigration advice giving. Whether it is from an individual who navigated it successfully themselves and seeking to help others, to a growing trend now of YouTube ‘Study Permit, Statement of Purpose’ advisors, one can see both the good and the bad.
As I have said on numerous occasions, even I on occasion check in online forums (especially those that have crowd-sourced application timelines) to get a sense of what is occurring on the ground. The Pandemic has brought together incredible online advocacy efforts – for separated spouses caught in backlogs, to migrant workers seeking permanent residence, to students pushing against tuition fees and exploitation.
Everyone has an opinion it seems on immigration. Everyone who has read a few government websites or gone through it themselves – thinks of themselves as being able to help. Every lawyer/consultant who has submitted an application or two – considers themselves specialized.
The reality on the ground is it is much more complicated. The representative’s (authorized or not’s) own positionality – goals, aims, interests, financial benefit – meets up with the client’s and is ultimately in the hands of a third party, non-rational actor who constantly changes up policy.
Too often what I hear from clients who seek us out the most, are that the representative who advised them previously told them everything would be okay and that approval rates were high, provided them little transparency into what they were doing, and deflected responsibility when the file was refused.
Employer-Driven Processes and Left-Out Employees
Another common feedback item we have been receiving is from foreign workers under the Temporary Foreign Worker Program (“TFWP”) and International Mobility Program (“IMP”) seeking their own immigration lawyers.
In traditional employer-driven immigration processes, especially for more established companies, it is the employer that retain the lawyer, drives the offer of employment/Labour Market Impact Assessment (“LMIA”) process, and then facilitates the work permit process.
Other than signing and authorizing the final forms, the employee often has little to do. This model worked when things were much simpler. Now, employee situations are complex and companies often have to push forward their business in ways that may leave the foreign worker on the sidelines. The pandemic – where mass temporary layoffs took place, was a prime example.
From accepting an initial offer (which may pose immigration hurdles) to getting terminated/let go/placed on leave or having to navigate a Provincial Nomination Program (“PNP”) and Bridging Open Work Permits (“BOWP”), employees must begin taking more autonomy over their immigration matters.
Having worked at Firms that acted primarily for employers, seen the way those retainers were crafted, and the type of conversations that were happening between HR and counsel, I decided for myself that I wanted to act on behalf of employees. This work primarily now is often being handled by legal clinics, but this work cannot hit the scope needed. It cannot be just the serious cases with abuse – it needs to be a widespread first step for an employee to ensure their immigration best interests are always being taken care of.
I am of the opinion that all employees on work permits, should seek independent legal advice outside of that being provided by their Employer’s counsel. The earlier this can be done – the better. Many times it may be something in the past as well – employment experience, misrepresentations, criminality, non-compliance that factors into the future. Do not wait until a refusal or employment issues arise, as you may find yourself abandoned.
Similarly it is my opinion that all employers, especially big employers, should seek to understand the foreign worker’s perspective outside of the advice given by their own counsel. That is – they should continually attend trainings and resource themselves to ensure they are compliant with immigration legislation and understand the employees perspective as well. The hard truths and realities are often what are shielded in the name of business efficiencies but are what ultimately what can severely affect a business, when relationships sour and parties threaten to report each other to relevant authorities – a common theme I have seen at my offices of late.
Canadian Immigration Second Opinion Services (#CDNIMMSOS)
We’re launching this project because we want to shift our services away from necessarily taking on entire initial files – such as initial study permit applications or work permit applications and instead be your second opinion person. The one who acts as a check and balance in your corner, devoid of any ulterior motives – other than to support you.
Our services won’t be popular. We never entered this work to be. We want to be the one emailing your Employer on your behalf advocating for you, the one that stops you from falling into an exploitative situation. You are likely not going to get referred by your current consultant or company’s lawyer to us. You need to seek us out, but we’ll be here waiting.
The Problem With Independent Legal Advice (“ILA”)
When it comes to independent legal advice, the reality is that the very referral of the file to a trusted colleague for ILA can be impartial. When I refer out files for ILA, I tell clients that they should choose their counsel independent of my recommendation.
If, for example, there was incompetence of counsel, an oversight, a misstep – it takes a certain level of true independence to pursue it on behalf of the client you are providing ILA for.
Again, going back to my earlier premise – the network of chefs in a local immigration network is quite small. Most of us respect each other’s work.
When seeking a truly independent legal opinion or a second opinion, always ask if the receiving party knows the initial party who did the application. Ethical second opinion providers will pass on a matter if they may believe their opinion could be compromised.
For example, one time a colleague and I were referred a file for a second opinion. The original counsel was one we both had on Facebook and knew was going through mental health challenges – based on their private postings. It would have been unethical and sharp practice for us to take on such a file, with this private knowledge.
On the other hand, be aware of lawyers and advisors who appear to promote a pure litigious/negligence approach without highlighting actual substantive advice for your file – especially if immigration remedy rather than punitive/financial damages are your primary need.
Aren’t I Paying Twice for Advice?
The short answer is: it depends. Most employers, if the process is done ethically, cover the costs of the LMIA or the Employer Compliance fee – and many will also foot the bill on the work permit application.
However, what I am proposing with providing second opinion is simply to seek a consultation at the start of your matter, to double check that your materials are being submitted correctly, and then also when any major challenges arise. The cost of a consultation early, to catch an issue, could save you thousands on the back-end if you require responding to a complex procedural fairness letter or going to Court.
#CDNIMMSOS – Contact Information
We look forward to helping. Email us at info@heronlaw.ca to set up a consultation with one of our (soon-to-be) three lawyers on your Canadian immigration matter.
