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Feb 1, 2017

Canadian Immigration Law Blog

How a Simple Hole Can Turn into a Big Difficulty to Mend – Case for Greater Client Access to Immigration Applications (IRCC Policy Recommendation)

In Chinese (it was Chinese New Year last week, so feeling a bit cultural today), there is a proverb that goes as such:

小洞不补，大洞吃苦 xiǎo dòng bù bǔ, dà dòng chī kǔ

In essence, if a small hole is not fixed (I guess in this case a small leak), it can lead to a bigger difficulty (like a flood).

For those that work with me, transparency and ethics is at the center of my practice. I have never and will never keep a client in the dark about their immigration matter (good news or bad news) and no form gets submitted without the client actively participating in the process.

However, for many that practice (and in a large part I find common among unlicensed agents abroad), this is not the way immigration works or is advertised to work for their clients. Part of it is the cultural of immigration. Overseas, and for many countries, immigration is akin to applying for a business license or doing an incorporation. You hire someone to get it done and as long as it was done it was successful. Doesn’t matter how it is done.

The exact opposite is true for Canadian immigration. Content you unknowingly or unwilling submit (let’s say in a basic Temporary Resident Visa) can rear it’s ugly head years later in permanent residence matters, post-permanent resident matters, and even citizenship matters. Overseas agents generally don’t bother asking clients to confirm things, and many times the client (who does not speak English themselves) signs with no real understanding as to what is being signed for and what is contained in applications. In egregious cases, client’s sign blank application forms before the content is even prepared.

Furthermore, Use of Representative Forms expressly say it is okay for a family member or individual to help you out as long as they are not getting paid. Ironically, the names that sign almost always do get paid, and to my understanding very little has been done to track or identify them.

By letting someone “take care of it” without any input by you several things could occur:

a) Misrepresentation

Misrepresentation, as defined by the Immigration and Refugee Protection Act, which has application up until an individual is granted Citizenship and even possibly beyond (if revoked). For non-citizens, establishing misrepresentation has occurred does not require there to have been an intent to establish misrepresentation. The fact a consultant or agent misrepresented on your behalf – as long as you sign, and even in many cases when you don’t sign your forms (and sign the Use of Rep) is broad in application and scope. It is detrimental in consequence – five year bar on entry and making applications and currently no room for negotiation as to length. Misrepresentation is often coupled with other exclusion orders (overstay, failure to comply, etc.) which combined can lead to a deportation order, for which return to Canada is subject to the Government approving an Authorization to Return to Canada application.

b) Practitioners who keep clients in the dark – missed refusal letters

Another issue that I find has increasingly come up in my practice is seeing individuals who do not receive timely updates or information requests as a result of what many (non-competent) practitioners do in what I will label “screening.” The process of screening essentially allows them to screen what they provide to their clients. Rather than send them original requests from IRCC, they only send them quick email updates or attached forms rather than the full request. The Client is then absolutely in the dark as to what is going on. Requests are often sent long after they are actually received and at a point where it is too late. In some cases, responses are not provided leading to A16 refusals for not providing requested documentation.

Another process I have seen, that is even more troublesome, is delaying the delivery of refusals. In some cases, I have seen practitioners delay delivery of refusals, falsely giving the applicant the notion that they continue to be on implied status. Unfortunately, not only does this open up the individual to be removed from Canada for working without authorization, but it also eats into the critical 90-day window from a refusal where they could possibly seek restoration of their status.

Once out of status, out of restoration and from a visa-requiring country, the chances of returning to Canada as a temporary resident take a huge hit.

Possible Solution – Secondary Access for All Clients

I believe that there needs to be a way, particularly in this electronic age, where there is more than one individual allowed to access their immigration file. Just because an authorized representative has been appointed, I do not think the client themselves should be completely locked out of their account or of updates. As it currently stands, clients are entirely hamstrung from seeking independent legal advice without access or copies to materials filed.

My recommendation would be for IRCC to provide explicit instructions and access for clients to at the very least view their own materials submitted and actual IRCC correspondence – regardless of the type of application. This would be an expansion of e-CAS as it currently stands.

Short of having them able to act on information requests or take incorrect steps (which I believe Authorized reps should be able to enable as part of their primary account), I think all clients should be able to see what is going on from the eyes of their immigration representative.

This would mirror what is currently done with the Employer portal with primary and secondary users.

I also believe that there needs to be some control over the process of having representative’s create portals on behalf of their clients to submit applications. In so doing, there needs to be some front-end verification to show that the individual client has provided permission for this and is aware that they are responsible (by virtue of their name being on the file) for all the updates that accrue. Practitioners would need to necessary sign some sort of authorization for their client in order to pursue.

The common (and I believe unethical) practice of creating accounts on behalf of unwilling clients to shield the representative’s own involvement and yet to also hide the client’s own access needs to come to an end.

What do you think about my suggestions above? Shoot a comment below!

Jan 25, 2017

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.

Jan 25, 2017

Canadian Immigration Law Blog

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

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

pgwpp_eligibility_in_bc_-_updated_september_2016

I have reprinted the list below:

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

Why this is so important is that Officer processing for students, particularly of private colleges and university, has been inconsistent. Some designated learning institutions (remember just because an institution is designated, does not mean they are eligible for the PGWPP), were actively advertising to their students and the public that post-graduate work permits were available. In other institutions, students would submit post-graduate work permit applications regardless of school policy and would in many cases receive it.

This obviously creates a system ripe for problems and, unfortunately in some cases, even fraud.

Dissemination of clear information and hopefully the sharing of this information with IRCC officials who process the post-graduate work permit applications will make a big difference to ensuring that the PGWPP works effectively and students are incentivized to pursue quality education at an institution that is held to higher standards of review. It protects all stakeholders and, most importantly, it protects international students who are vulnerable to misinformation.

Students, particularly before enrolling in private colleges, should ensure their programs are on the list of eligible PGWP programs.

I suspect this list to expand, and I would be happy to assist educational institutions looking for advocates and immigration advice to try and get on the designated list.

Jan 6, 2017

Canadian Immigration Law Blog

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

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

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

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

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

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

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

Lesson 1: Building Client Relationships

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

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

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

Lesson 2: Learning to Manage Emotions

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

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

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

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

Lesson 3: Knowing Your Stakeholders

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

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

Lessons 4: Knowing to Be Concise

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

This is even truer today in practice.

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

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

Lesson 5: Knowing Your Laws and Regulations Inside/Out

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

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

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

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

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

What Does 2017 Hold in Store for Me?

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

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

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

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

As I tell all my clients, I cannot […]

Jan 5, 2017

Canadian Immigration Law Blog

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

Expression of Interest – Possible Issues

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

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

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

interest-to-sponsor-web-form

Initial Concerns

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

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

Minimum Necessary Income to Sponsor Parents and Grandparents

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

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

We know this much about previous years:

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

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

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

Living in Canada Requirement

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

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

Concluding Thoughts

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

Jan 3, 2017

Canadian Immigration Law Blog

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

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

CHANGES – AN OVERVIEW

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

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

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

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

Specifically, the changes are as follows:

THE GOOD

Less Onerous Front-End Requirements

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

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

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

Better Forms and Clarification

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

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

Spouse Checklist

Common-Law Check List

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

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

Four Month Processing for Spousal Work Permit

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

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

THE BAD

Basic Guide Leaves Out Important Information Found in Comprehensive Guide

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

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

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

The Basic Guide states the following:

This issue appears to be repeated in the forms.

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

Incentivizing Inside Canada without Explaining Legal Consequences

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

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

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

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

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

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

And this:

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

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

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

Technical Issues

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

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

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

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

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

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

Incomplete Applications

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

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

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

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

Is an application where the individual sends more than the required documents […]

Dec 14, 2016

Canadian Immigration Law Blog

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

christmas-296381
Canadian Immigration Santa

IRCC Has Delivered Some Gifts This Holiday Season

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

Without further ado, here are the recent gifts:

A. Parent Sponsorship Changes

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

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

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

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

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

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

B. Spousal Sponsorship Changes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IRCC Needs to Deliver a Few More Gifts This Holiday Season

1. Clarifying International Student Compliance

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

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

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

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

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

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

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

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

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

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

3. Ending Conditional Permanent Residence – For Good

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

4. More Transparency With Permanent Resident Card Investigations

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

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

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

Three Holiday Tips for Canadian Immigration Applicants

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

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

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

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

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

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

Immigrants, particularly younger students or recent […]

Nov 9, 2016

Canadian Immigration Law Blog

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

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

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

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

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

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

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

Sep 18, 2016

Canadian Immigration Law Blog

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

Introduction

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

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

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

Restoration of Temporary Resident Status

Marginal note:Restoration

182(1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

Marginal note: Exception

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

SOR/2013-210, s. 2;

SOR/2014-14, s. 3.

Previous Version

R. 220.1(1) states as follows:

Conditions — study permit holder

220.1 (1) The holder of a study permit in Canada is subject to the following conditions:

(a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and

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

The effect of these two regulations create a major headache for Post-Graduate Work Permit holders who have their applications refused and must now pursue restoration.

This is because the Post-Graduate Work Permit guidelines (note, not in the Immigration and Refugee Protections Act or Regulations) state that you must have a valid study permit at the time you apply for a Post-Graduate Work Permit, meaning that this study permit is also required when restoring status to Post-Graduate Work Permit (emphasis added):

Determine your eligibility — Work after graduation

To obtain a work permit after your graduation, you must meet the following requirements:

You must have continuously studied full time in Canada and you must have completed a program of study that lasted at least eight months.

In addition, you must have graduated from:

a public post-secondary institution, such as a college, trade/technical school, university or CEGEP (in Quebec), or

a private post-secondary institution that operates under the same rules and regulations as public institutions, or

a private secondary or post-secondary institution (in Quebec) offering qualifying programs of 900 hours or longer leading to a diplôme d’études professionnelles (DEP) or an attestation de spécialisation professionnelle (ASP), or

a Canadian private institution authorized by provincial statute to confer degrees but only if you are enrolled in one of the programs of study leading to a degree as authorized by the province and not in all programs of study offered by the private institution.

You must apply for a work permit within 90 days of receiving written confirmation (for example, a transcript or an official letter) from your institution indicating that you have met the requirements for completing your academic program.

You must have completed and passed the program of study and received a notification that you are eligible to obtain your degree, diploma or certificate.

You must have a valid study permit when you apply for the work permit.

Unless a student were to throw in an extension of their student status after they graduated (a logically counterintuitive step), there could be issues.

Historically, and I have this from a very good source at a local designated learning institution (“DLI”) , Immigration, Refugee and Citizenship Canada (“IRCC”) has been giving presentations encouraging International Student Advisors not to send their students down to the port of entry unless it is an absolute emergency. However, particularly for TRV-exempt applicants, a port of entry (“POE”) application allows a student to get finality in one day as opposed to several weeks if not several months.

Resultingly, where some work permit processing takes up to several months or where a student is unable to apply for a post-graduate work permit extension immediately after they are eligible to graduate, the resulting consequence is a refusal could be one where restoration is not an option.

Why Nookala v. Canada (Citizenship and Immigration) 2016 FC 1019 is a bad case for Post-Graduate Work Permit Applicants

In a very strict, black letter law decision, Madam Justice Mactavish ruled that it was reasonable for a IRCC to refuse the Post-Graduate Work Permit Restoration Application of Mr. Nookala, the applicant, who had applied for a post-graduate work permit after the expiry of his student permit.

As an aside to the above, I recently went to Federal Court on two separate cases (that were resolved prior to hearing), one where the applicant accidentally restored to worker status instead of student status (although the difference was this was on the advice of IRCC) and the second where a student restored to student and attached a work permit application (where IRCC failed to even see there was a work permit application attached).

In Nookala, the immigration officer held that because Mr. Nookala was not in possession of a valid study permit at the time of his application for a Post-Graduate Work Permit (“PGPW”) that he was not eligible for the PGWP and thus also refused the restoration application.

Mr. Nookala had argued that section 182 of IRPR allowed an individual who had been studying in Canada on a study permit to restore their status after 90 days and that in restoring his status as a worker (as per his restoration application), he was in fact seeking a momentary student restoration for the purposes of a work permit application.

In her decision, Madam Justice Mactavish found that the guidelines did not offer any discretion to fetter and that a reading of subsection 216(1)(e) of the Regulations in accordance with the wording of section 182 required that Mr. Nookala had to establish that he had been accepted into a program of study at the time of his restoration application. Because he did not hold a study permit he failed to meet the requirements of section 182 of IRPR.

Interestingly, in an addendum provided by Mr. Nookala, it was put forth that the operative guidelines for restoration suggest that the phrase “initial requirements for their stay” should not be considered too literally in the context of restoration.

Justice Mactavish dismissed this assertion stating that the guidelines confirm that “the preferred interpretation in this context would be that the person seeking restoration must meet the requirement of the class under which they are currently applying to be restored as a temporary resident” and that as the refusal accorded to section 182 of the Regulations it was therefore reasonable.

My Assessment

Importance of Restoring to Student First to Student

The arguably “right” pathway to restoring to work permit status, should have been a restoration to student attached with a work permit application. This has been well established by Rehman v. Canada (MCI) 2015 FC 1021. However, right now, where IRCC themselves are providing contradictory instructions – suggesting a restorer should restore to the status they wish to acquire (in this case worker status), such a mistake is foreseeable and in my mind requires some forgiveness by IRCC. Of course, this runs up against the “reasonableness” standard and opens up the argument that judicial review is not an appeal, particularly where the applicant chooses the wrong path. However, at the very least some sort of reconsideration or triggered procedural fairness request should be created to allow those applicants to switch their applications.

Failure of Federal Court to Consider R. 182(2) of IRPR

The bigger challenge with the Federal Court’s decision in this case, is that there was no analysis done by Madam Justice Mactavish of R.182(2) which in my mind gives breath to what it means to meet the conditions of their initial stay.

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

If we look back at subsection 220.1(1) (emphasis added) :

(a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and
(b) they shall actively pursue their course or program of study.

An individual is not required to enroll until they make their post-graduate work permit application but required to enroll until they “complete their studies.” That is why most study permits are extended for 90 days after an individual completes class.

An individual who is restoring their status, cannot be actively pursuing studies (as per sub b) as by definition, they have no study permit so they must fall under (a) and I argue do fall under (a) as they completed their studies and were enrolled there until they completed their studies.

I believe failure for the Officer to consider subsection (2) does constitute an important omission of relevant law – which Qin v. Canada 2013 FCA 263 at para 31 seems to suggest could even attract the correctness standard.

A Bar on Restoration for Post-Graduate Work Permit Holders Not Aligned with Spirit of Act/Regulations

Finally, if we look at the very spirit of the act under the Immigration and Refugee Protections Act (“IRPA”) s.3(1)(f) “to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the Provinces.” Section 3(1)(g) also emphasizes that IRPA is to be facilitative of temporary workers.

A legislative bar, a requirement that any applicant for a PGWP who may have spent four years studying in Canada under a valid study permit for the opportunity to apply for […]

Sep 13, 2016

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:

Is access to a lawyer’s private life something that can be marketed as an asset to the lawyer-client relationship?
Is exposing this information to a potential client opening up vulnerabilities down the road?
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 […]

Aug 15, 2016

Canadian Immigration Law Blog

Improving the Immigration Detention Process – My Thoughts and Experiences

On 15 August 2016, Minister of Public Safety and Emergency Preparedness, the Hon. Ralph Goodale made an announcement that the Government of Canada will be investing up to CDN $138 million dollars to transform the immigration detention infrastructure in Canada.

This announcement comes on the heels of a string of deaths that occurred within immigration detention, that many in the legal and immigrant/rights advocacy community believe may have been entirely preventable.

Minister Goodale’s speech his reforms have several objectives. As reported by the CBC, the reform objectives are as follows.

The reform objectives

Increase the availability of alternatives to detention.

Reduce the use of provincial jails for immigration detention.

Avoid detaining minors in the facilities as much as possible.

Improve physical and mental health care offered to those detained.

Maintain ready access to facilities for agencies such as the Red Cross, United Nations High Commissioner for Refugees as well as legal and spiritual advisers.

Increase transparency.

With respect to the Vancouver/Pacific Region, Minister Goodale specifically noted the need for a new detention facility.

As per a simultaneous backgrounder titled Federal Immigration Detention Infrastructure, the Government of Canada notes that the only Immigration Holding Centre is a short-term facility in the Vancouver International Airport that can hold 24 detainees for a maximum of 48 hours. The release notes that there is “no on-site access to the IRB, no access to educational programming, nor health care providers on site.”

As a bit of an insight to the detention process from a practitioner’s perspective and as well to shed light into some of the on-going issues I have seen I wanted to do a post highlighting the detention process and my experiences, broadly speaking.

In so-doing, I do want to note that my personal experiences with individual Canada Border Services Agency (“CBSA”) officers has generally been very good. They have some of the most consummate professionals working there doing what I can see from their eyes too is often an unenviable and heartbreaking task of removing individuals from Canada and in some cases, separating families.

In writing this post, and sensitively so, I will not mention any names of any individuals or even refer to my own cases and speak to everything in a very broad manner. Given that I still actively provide services to many clients (and hope to continue to do so) I hope my readers forgive me for the lack of intimate detail in this post and my emphasis on protecting privacy and the legal process. I also want to share various recommendations I have relating to the process of detention.

Investigation and Detention

Before the individual gets detained, generally speaking there is the requirement for a preceding investigation. The investigation is usually undertaken by CBSA (often times on the recommendation of another agency, such as the police or Immigration, Refugee and Citizenship Canada (“IRCC”)) and in a majority of the circumstances CBSA will attend to the investigated subjects door with little to no warning.

I will specifically gloss over, for the purposes of this overview piece, the quite important discussion of the Right to Counsel and when it arises in the context of an immigration detention. This issue is legally sensitive and as such will require it’s own post and a later time. What is important is that the Right to Counsel must be provided to the individual upon their detention.

During the detention, and as alluded to Minister Goodale’s speech, in addition to assessing the potential grounds for issuing an inadmissibility report, the CBSA officer will be determining whether the investigated individual should or should not be detained for immigration purposes. This inquiry depends, broadly, on three factors as set out the Immigration and Refugee Protections Regulations R.244. To summarize:

Is the person unlikely to appear for further immigration proceedings (i.e. are they a “flight risk”)?
Is the individual a danger to the public? and
Is the individual a foreign national whose identity has not been established?

Each of these three factors – flight risk, danger to public, and identity also have their own sub-factor assessment. I would suggest, as good reading sections 5.6 to 5.8 of CBSA enforcement manual ENF – 20 Detention, as these factors are very important but too lengthy to discuss within this summary-based blog post.

I did, however, want to touch upon two important factors that I generally find play a huge role and perhaps on points where changes can be made to the way the need to detain is assessed.

(1) Language Issues

I find that language issues, particularly where an individual attempts to answer questions in a language that is not their own, or has challenges with interpretation can be a major challenge. Being approached by two officers, often in broad day light and in a public place, can be very stressful but too often mistakes are made inadvertently.

These mistakes later can be used as evidence of non-compliance later on. It is important for an individual who is being questioned to be truthful at all times. I have seen several cases where individuals give false statements with hopes that agreeing or accepting the officer’s questioning may lead to further consequences.

Finally, the unenviable task of interpretation can often go wrong. Interpreters may have misheard or may be misinterpreting the statements of the detainee (for better or for worse). I have also seen on several occasions individual interpreters accidentally go beyond the job of translating to actually advising and assessing the individual’s statements. As the Officer generally does not speak the language, this becomes a major issue where this information is the sole basis for an Officer’s affidavit in support of justifying detention.

I would suggest expansion of Officer’s able to speak the language and assess the quality of the translation and in-person translation, where possible, would be desirable.

(2) Strong Ties to Canada

I find that this factor is a very tough one and tough to address. Rarely, having reviewed many Officer transcripts, have I seen Officer’s directly ask whether “if you were found inadmissible to Canada would you leave Canada if required?” The line of questioning usually goes around – “where is home?”, “do you have family in your home country?”, and “who do you live with in Canada?”

Strong ties to Canada, from a logical standpoint, would give way to the sense that an individual would appear for future proceedings but it is interpreted in immigration law often as a reason an individual may choose to hide and be a flight risk. Even if I were asked this question, with my knowledge, I would feel trapped between a rock and hard place trying to provide this answer.

I would suggest that there should be more policy guidance on how an individual is supposed to answer this question. For example, at a detention review, one of the strong factors that allows an individual to get released is the presence of a strong tie (immigration bondsperson, ideally who is a Canadian Citizen).

I can attest to the fact that most of the time, by the time I get the call from the potential client (usually through their family member) all of the above events have usually occured. Below I discuss briefly what happens when an individual “goes under” and is taken into CBSA custody.

What Happens When an Immigrant is Detained in the GVRD Area

Once detained, the individual is statutorily granted a 48-hour detention review where their detention is reviewed. Depending on when the individual is arrested, usually must occur within 48 hours. For example, if an individual is arrested on a Thursday, and it is a long weekend, they will not get their detention review until Monday.

In Vancouver, an individual is often transported to the Immigration Holding Centre at Vancouver Airport (“YVR”) before they are brought in either to the CBSA Holding Cells at 300 West Georgia Street or a Provincial Detention facility.

As addressed by Minister Goodale, one of the challenges is that the families of those detained often do not know what facility their detained family member is at and it is not uncommon for there to be a substantial gap between the individual detained and the individual being able to make their first call letting their family know where they are. This is a major challenge.

Furthermore, there is currently a mixing of general population and the immigrant detainee at many of the provincial correction facilities. Access to counsel is quite limited (many of these facilities are 1.5 hours+ outside of Vancouver), booking space to see the individual is quite difficult, and even family members have difficulties getting messages to their detained loved one through the prisons phone system, particularly where they do not even know the correctional facility. I have often tried to access clients in detention and are told that the earliest time I can book is two days after their hearing date. There is a lack of coordination currently between CBSA and Provincial prison authorities in providing this critical space.

In Vancouver, there is a great liaison at CBSA who does assist in connecting, where possible counsel to this information. However, often times, without a Use of Representative Form signed, this individual is hand-tied in providing that crucial information to non-retained counsel.

Overall, I think there needs to be some serious re-thinking of putting individuals who have committed immigration offenses that would be considered non-criminal (working without authorization, not actively pursuing studies, even overstays). Out of all the comments I hear from those I have assisted in being detained, the most repeated comment (other than the comments about the food) is that they were very shook-up by having to share a cell with a common criminal and felt very intimidated and frightened.

Having represented several clients through the immigration detention process and assisted several families in the process of tracking their loved ones down after the process.

Interview and Questioning

After detention, it is not uncommon for other Officers to meet or call the individual. This is where Inland Enforcement at CBSA gather their evidence. They often will simultaneously call other individuals/witnesses who may have knowledge of the inadmissibility claims.

A more formal interview with a second Officer is not uncommon for the facts to be better flushed out in support of the inadmissibility report/finding.

Minister’s Delegate Review/Referral to Immigration Division

The next step, which usually occurs on the first full day of the individual’s detention, is the Minister’s Delegate Review. Depending on the immigration […]

Aug 4, 2016

Canadian Immigration Law Blog

The Case for Writing Employment Reference Letters in an Employer’s Working Language

A recent Federal Court decision from Justice Alan Diner in Ouedraogo v. Canada (Public Safety and Emergency Preparedness) 2016 FC 810 raised a very interesting question that has at least sparked a strategic shift in the way that I prepare employment reference letters.

In Ouedraogo, a reference letter was submitted in English for a period of employment where the Applicant claimed to have worked as a chef in Iran. One of the reasons for concern which was a contributing factor to the refusal was that the reference letter was written in English, which from the visa officer’s perspective was out of the ordinary for Iran and raised credibility issues.

In my own practice, having taken carriage of many files where a poorly written (or in many cases copied/pasted) employment reference triggered procedural fairness letters, I have started to employ a new strategy – encouraging the drafting of employment letters in native languages rather than English.

This process is clearly more time consuming. Rather than having a draft start and end with as their representative, I assume a role as a middle assessor. I ask the client to approach their former employer, with the guidelines served by the NOC code and strict instructions that any copy and pasting or even paraphrasing does more harm than good. For some reason (having again seen these employment letters) there is some misconception that the actual duties must reflect point by point all of the duties listed in the NOC. This is wrong and in fact, a trigger for credibility, in my perspective. In fact, for me the perfect reference letter duties have a right balance of the expected duties from the NOC but also the unique duties of the work place. Rarely do jobs cookie cutter fit the NOC and this is not a weakness – as long as the other elements are there and credible (i.e. education/wage).

One of the consequences of not writing reference in the writer’s original language is that IRCC has been (and I applaud them for taking resources to do this work) following up with employers. However, often times this follow-up is not through a written request but rather through a phone conversation where an interpretation may or may not be present. My gut feeling is where IRCC sees the letter in perfect English they assume the employer can speak perfect English and not that the letter was drafted on their behalf by a representative. I have seen a few cases where unsuspecting employers were caught in the middle of the road on their bluetooth or in the middle of a busy day, by immigration, eventually giving inaccurate details that had a negative affect on the client’s application. Particularly where English is not the letter writer’s native language, many of the answers will inevitably not satisfy an investigating officer.

My advice is to pony up the additional funds and have the reference letter written in the native language and then translated by a certified translator into English. I always include a line stating that the Employer does not speak English and prefers to be called via interpretation.

Should I employ English as the language of choice, I similarly instruct the Employer to write the letter and to carefully read any letter put forth to them by the Employee as their may be some long-term consequences if the information is untrue.

So far, this practice has been quite successful. Perhaps some of you have some thoughts on this strategy?

Aug 1, 2016

Canadian Immigration Law Blog

Canadian Immigration Updates – July 2016

In a throwback to my articling days, I was asked by the Firm to prepare a summary of the recent developments in Canadian Immigration Law for July. Writing it, I felt this information may be useful to some of the frequent readers of this blog. Note also, I am working on a more significant policy piece (involving some heavy statistical analysis). It isn’t quite ready yet but it should be coming sometime this week. Between an upcoming IAD appearance, a Federal Court appearance scheduled for month end, and several ongoing applications to get out the door, I apologize once again for the delay in posting. I am aware that many individuals read this blog to keep up to speed with immigration and I certainly owe it to all of you to try and update more frequently.

JULY 2016

CANADIAN IMMIGRATION UPDATES

Program Delivery Updates

July 29, 2016 – New summary for instruction on how to process applications from interns (link: http://www.cic.gc.ca/english/resources/tools/temp/work/unique/intern.asp)

Internship not defined in Immigration and Refugee Protections Act or Regulations – constitute work as per Section 2 IPRR
Three guiding principles:
1. If registered at foreign institution and wishing to come to Canada to take a position in research program = TFW;
2. IRPA and IRPR requires individuals who seek authorization to work in Canada to obtain a work permit unless exempted per R.186 IRPR.

Those who are not work-permit exempt under R.186 will need a positive LMIA unless LMIA exempt under R204 to R208 IRPR w/offer of employment/compliance fee;

Work permit required, LMIA-exempt (Cdn interest C10, post-doctoral fellow/awards C44, reciprocal employment general – C20, IEC – C21, Foreign medical (or dental residents/medical research fellows –C34, charitable or religious work – C50)
Work permit-exempt (work without permit – R186) – (Business visitors and health care students)
Reminder that employer responsible for info in offer of employment – and application can be refused if info wrong,

July 27, 2016 – Functional guidance on the Self-Employed

As of date of this update, the IRCC link on this is down
Reminder that IRCC does have instructions for self-employed (http://www.cic.gc.ca/english/immigrate/business/self-employed/apply-how.asp), the application package (http://www.cic.gc.ca/english/information/applications/fq-self-employed.asp), and the Selection factors grid (http://www.cic.gc.ca/english/immigrate/self_employed/selection_factors.asp)
As well, OP 8 – Entrepreneur and Self-Employed at 11.1 (pg 31) has some guidance http://www.cic.gc.ca/english/resources/manuals/op/op08-eng.pdf

July 21, 2016 – Update to the instructions concerning peer reviews under the start-up business class (http://www.cic.gc.ca/english/resources/tools/updates/2016/2016-07-21.asp)

Peer review requirement has been removed has requirement for start-up business class;
Previously held up potential applicant/projects for several years – angel investor group with commitment certificate had to have National Angel Capital Organization (NACO) organize group to review potential applicants;
Going forward, peer review only initiated where an officer has concerns about commitment Certificate and whether designated entity has performed due diligence to industry standards

July 13, 2016 – Update to the study permit instructions related to prerequisite programs

Old practice was for Officers to issue study permits for the duration of both the pre-requisite program (often times ESL or FSL) as well as the program that the international student received conditional acceptance for;
Now, Officers will issue a study permit for the duration of first program of study, after which they will be required to apply for a new study permit to demonstrate the requirements of first program met; and
As this was a response to students who were working while studying for ESL as their study permits allowed them too – this will likely put an end to that practice.

July 12, 2016 – Update to instructions related to post-doctoral fellows awarded a Doctorate of Philosophy and award recipients [C44] (link: http://www.cic.gc.ca/english/resources/tools/updates/2016/2016-07-12.asp)

IRCC issued these instructions to clarify requirement for foreign nationals who wish to use the C44 Labour-Market Impact Assessment Exemption;
Instructions clarify for a Post-doctoral fellow, the requirement that the foreign national have completed or is expected to shortly have completed their PhD and gives universities some flexibility in setting out the methods and criteria for assessing candidates;
Major change is in the academic awards – award criteria, where an applicant must show that the award was the result of a competitive assessment and review process. Onus is on applicant to provide details of award

Notices

Notice – Changes to the Pre-Removal Risk Assessment for Ethiopia (link: http://www.cic.gc.ca/English/department/media/notices/2016-07-27.asp)

Individuals from Ethiopia exempted from one-year PRAA bar given worsening conditions in country;
Reminder: About PRAA bar http://www.cic.gc.ca/english/refugees/reform-ppra.asp

Ministerial Instructions

Ministerial Instructions respecting invitations to apply for permanent residence under the Express Entry system #39 – July 27, 2016 (link: http://www.cic.gc.ca/english/department/mi/)

Number selected for ITA: 755
Minimum CRS score drawn: 488
Note that score hasn’t dipped below 480 since April 20, 2016

Important Federal Court Decisions

Ouedraogo v. Canada (Public Safety and Emergency Preparedness) 2016 FC 810 [http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/168655/index.do]
- Federal Court upheld reasonableness of decision to issue an exclusion order to the applicant who overstayed but was within the 90 day restoration period;
- As per paragraph 47, an application for restoration is not a shield against deportation and compliance enforcement.
Ramenzanpour v. Canada (Citizenship and Immigration) 2016 FC 751
- Federal Court (Justice Diner, notably) upheld decision of IRCC to refuse Ms. R’s Federal Skilled Worker Application
- Three important takeaways:
  - (1) The officer erred in assessing the adaptability points, but this error would not have changed overall decision. Justice Diner held that even with adaptability points – Applicant would have fell short. “This court has repeatedly held that no purpose is served by sending an assessment back for redetermination if, after correcting the error, the application would still fail”
  - (2) An officer on file raised question of whether woman could cook in Iran. Decision ultimately made by different officer + Officers permitted to rely on “local” knowledge.
  - (3) Officers permitted to draw concerns about English letters – unusual in Iran.

Jul 16, 2016

Canadian Immigration Law Blog

Reader’s Question: “I have a consultant working on my file, can I still see you for independent advice?”

One of the things I pride my practice on is the fact I maintain a positive relationship with several immigration consultants across Canada. In fact, in my opinion immigration consultants serve a very valuable role. Many consultants are able to provide services at a more affordable rate than lawyers, can provide services in different languages, and often come from a background (former Government, IRCC, immigrant/refugee, or CBSA) that gives them a unique insight that can be useful for clients.

I have met some amazingly passionate consultants in Vancouver who work in areas ranging from running their own private practice to advising designated-learning institutes. A topic for another blog post but I will post a list down the road.

On the flip side, particularly in the City of Vancouver, there are a lot of very shady and incompetent immigration consultants. Many of whom are either ghost consultants or registered consultants who don’t touch their own work (outsourcing to non-consultant assistants) or were never properly trained in the first place.

Some of the common issues arising from negligent work of unqualified/trained consultants includes the following:

having applicant’s sign off on forms they have never seen;
having applicant’s hide or not disclose work history, previous refusals, or criminal records;
having applicant’s sign off on their own forms (no mention of the consultant) while paying the consultant for their services;
having the applicant set up with a “friend” of the consultant who happens to have a business that will subsequently “hire” them to give the perception of work;
recommending the applicant a specific educational program or job without revealing that they are receiving a commission;
not adequately keeping the client in the loop on what activities have occurred on file including requests for further information;
recommending that the client make an initial investment or transfer in order to pursue business immigration options (note: all provinces don’t allow for this); and
not submitting any cover letters or legal bases for applications.

In addition to clients seeing us for the above issues, as immigration lawyers, we pick up a lot of work from consultants who simply have hit a barrier in the process or a fork in the road.

Consultants often call us up after refusals asking us if we can help take on their client and assist them through the appeal, reconsideration, and/or judicial review processes. Qualified consultants can themselves go to appeal and do the reconsideration process, but often times they are eager to ensure that the client has a strong legal position.

We often help out the client through their mess (limited scope retainer) and many times even recommend that the client can probably proceed with the help of the consultant on their file. Our law society rules prohibit us from splitting any legal fees from consultants and our retainers are always with the end client.

Why don’t see an immigration lawyer earlier? Your authorized representative does not have to be your sole representative.

If you are an individual who is physically sick and has let us say is having unexplained headaches, it makes sense for you to try and get to the root of it. Often times that involves going to see other doctors or arranging for other specialist appointments as need be. If the situation worries you, and you are uncertain of what is happening, you aren’t sitting wait for an emergency prognosis. You are being proactive and looking for solutions.

Immigration law is the same way. You may have a family doctor (your consultant, in this example) who has helped you throughout the process. However, if there are signs of hiccups or you begin having doubts on what is going on – it is probably a sign you need some independent legal advice on what is happening on file.

How to go about asking for your file from your conusltant?

Your immigration file belongs to you. Any immigration representative (doing their proper job) should be keeping you in the loop and providing you any document you ask for. In my case, I send screenshots to my clients, ask my clients to review all final documentation with me before it goes out, and send them copies of immigration correspondence.

Once you have that information, go see an immigration lawyer for one hour and book a consultation. Go over your concerns with them. Often times you may even be surprised that the issue is not with your consultant, but with immigration or due to some grey area in immigration legislation and policy. After the consultation, you will be in a position to either continue with the consultant or switch counsel. If you go with your consultant, you will have better knowledge of the remedies and be able to address or foresee any shortcomings. If negligence as occurred, you may be in a position to approach your consultant for a refund.

Too often, these days, I have seen client files come to me at the stage where the harm has already been done: misrepresentation allegations have already been established, deadlines have passed, and even removal orders already issued.

Second opinions are life saving.

As lawyers too, we often ask for second opinions. While respecting client confidentiality, we often ask each other and seek out experts in the field to help address issues. In fact, the Immigration Lawyer’s Bar has a whole Listserv dedicated to lawyers sharing their client’s legal situation with each other.

It is NEVER a mistake to ask for a second opinion and to seek a lawyer’s advice (even if it is for one hour) and it could make the difference for you down the road.

Jul 14, 2016

Canadian Immigration Law Blog

Regionalism and Geographic Discrimination in Canadian Immigration? – A China Case Study

Recently, my colleague Steven Meurrens uncovered via Access to Information and Privacy Request officer training guides used by Immigration, Refugee and Citizenship Canada (“IRCC”) Beijing’s Temporary Resident Unit from 2013-2015.

These guides are enlightening, opening our eyes to the inner workings of an overseas visa office. While I won’t share the entire ATIP here, the pages range from discussion on officer working hours, to how to organize files, and importantly how to prescreen and assess temporary resident applicants.

Steve broke the scoop by tweeting the following:

IRCC training manual states that borderline visa cases from the following Chinese provinces will likely be refused. pic.twitter.com/7h180tZ9tV

— Steven Meurrens (@smeurrens) July 13, 2016

I followed with another tweet, disclosing a few more pages providing greater insight into the way Chinese applicants were viewed by region:

Per @smeurrens, 2015 training guide adds Tianjin/Hunan. Total 7 places where applicant genuineness high risk #cdnimm pic.twitter.com/qeBgUnd1tT

— Will Tao|陶维 (@TheWillTruth) July 13, 2016

Yesterday, I was interviewed by Ming Pao Newspaper to share my views on the content. The Ming Pao piece (in Mandarin) has so far stirred a lot of reaction within the Chinese community as individuals debate whether IRCC’s practices are fair in this regard.

I want to take the context of this situation outside of just the Chinese community a little, and share a few more tidbits and why I think this training guide opens up a vulnerability in IRCC’s decision-making process that may face judicial challenges moving forward.

Whether or not files are re-opened because of the revelation that regional discrimination is taking place is beyond the scope of this post, However, I certainly want to also express my position that regionalism, regional or geographic discrimination, is likely not a reasonable basis for refusal that can be relied on by Canadian immigration officers moving forward. However, at the same time, I question whether it is inevitable given the already inherent biases of our Temporary Resident Visa regime.

What We Learned From the ATIP Results

The above map is very important and telling. As I mentioned in my initial tweet, this map is from a training guide titled 2015 while the one Steve posted earlier was from 2013- 2014. The 2014 one is important for the line that states “40% of claimants (I am assuming this means IRCC applicants) were from the provinces Liaoning, Guangdong, Hebei, Fujian, and Henan. It states further that “borderline” cases should be refused.

The 2015 map is revealing in that it appears to add even more specific detail. In addition to the four above it adds Tianjin (a special economic zone in Northern China) and the province of Hunan. Because of the black and white nature of the ATIP results we cannot see the entire colour scale of the map which in addition to the circled “risk provinces” appears to show a sliding scale of risk.

The side note states that the risk is in regard to “genuineness” which taking it a step further can equate to risk of misrepresentation. Misrepresentation as we know caries with in a 5-year bar and exclusion order and is a finding that often affects Chinese applicants who often times are poorly represented by incompetent counsel.

Overall, as per this chart, these are the provinces where applicants are presumed to have a greater likelihood to be misrepresenting on their applications.

We receive even further insight from the chart below which set out numerically what the risks are.

What is fascinating in the above chart is that different cities within the provinces across China are giving numbers reflecting the risk. Again, we don’t have access to the exact scale or the process by which the numbers are assigned.

However, extrapolating the fact that Beijing and Suzhou receives high numbers and the cities that are/are not redacted, we can assume the higher the number, the lower the risk. The redacted portions therefore reflect therefore the riskiest regions as aligning with the “group of seven” high risk regions.

We also can deduce through this chart what each of the colours and categories represent.

While the above is unfortunately redacted for colour, we see here on another page how the colour coding system works.

Breaking down the categories further

Green = Visiting families or Friends
Pink = Tourist (includes large approved ADS/ADS-P Groups)
Green = Visiting Family or Friends
Grey = Business – Private Delegations
Orange = Business – Personal or Professional Affairs;
Krat/Tan = Transit
Blue – PRTD = previous landed – require a Travel Document
Purple: Short Term (<5 months) students.

Below the labels clarify further that

CAN + are individuals with a U.S visa or Previous travel to Canada/US in past 5-10 years.

Here we can assume the increased risk label in the chart is put on perceived “tourists” from Tianjin, Hebei, Liaoning, Jilin etc and “private delegations/business” from same.

Notwithstanding the above, the training materials themselves clarify that Beijing’s approval rate is 87% – giving the perception that this is to be a standard to be met.

Where is the “Genuineness” and “Risk Evidence” coming from?

The first question that pops up is where the evidentiary burden behind this. As IRCC trains their officers and provides them a global map and provinces that they should look out for- what would the answer be if a trainee officer asked – “why Hunan over Yunan?”

Does IRCC have in its coffers a master statistics list of applicants and their hometowns, number of refusal per hometown, and results on appeal?

In the alternative, could the entire basis for the risk factors be on the ground anecdotal data.

What is striking about the list for China is that the regions that are highlighted as being at risk for genuineness are also among the provinces that receive the most regional discrimination from Chinese within China.

For example. the prejudice felt by individual from the central provinces of Henan and Hebei have been covered frequently in Chinese media. See here for example and Dan Harris’s China Law Blog post on regional employment discrimination here.

Is the Chinese media potentially feeding into these perceptions? I don’t find it ironic that within China, I also hear from individual’s on the street similar regional biases to the “dongbeiren” of the North for being more aggressive and harder to deal with, or the “central chinese” as being farmers, or the Cantonese being “shady.” How much are these stereotypes (purely prejudicial comments with no factual basis) seeping into Chinese policy?

Presence of Global Risk Tiering Chart

The Global Risk Tiering chart is fascinating. Each city appears to have a country code and the codes appear to be hundreds of numbers off assuming there are more than just the list here. The ORG/Entity classification code appears to mirror almost a Designated Learning Institute Code.

If I were to select Jalandhar, Manila, or Tehran would I get results? Would there be a similar number system?

Are these practice utilized by Beijing in their visa office unique to the visa office or shared across different visa offices? Particularly, in this day and age where applicants primarily apply online and IRCC has the ability to process in Canada or send abroad to any visa office, what roles do the risk tiering chart play (potentially in place of on the ground knowledge)?

What if I am from a “genuineness” risk Province and my application is refused?

If these cases where positive and negative temporary residence factors both exist and the difference maker is based on the province the applicant is from, I would argue procedural fairness and reasonableness issues both may be triggered in challenging refusals.

From a procedural fairness perspective, I would argue that this risk tiering chart would be considered extrinsic evidence not available to the Applicant. It could not be reasonably expected that the Applicant is aware that their region of residence is particularly at risk unless the charts were made public (which would have never occurred but for this ATIP). A lack of genuineness if equated to a “lack of credibility” may also trigger the requirement for concerns to be put directly to the Applicant rather than immediately refusing as the training guide suggests. If refused, the Applicant could argue that they were not given a reasonable opportunity to respond to the credibility issues.

From a reasonableness standard, as highlighted by the recent decision of the Supreme Court of Canada in Kanthasamy, it is not reasonable, and a fettering of discretion, to treat IRCC policy as a legal standard.

So far, issues such as travel history (which cannot be a stand-alone reason for refusal) have been tied into the issue of ties to the home country as a permissible contributor to refusals. I would suggest that regionalism as a factor for refusal begins to create major challenges for IRCC as it would be difficult to link the fact an applicant is from a certain part of a country as evidence that they would not leave Canada or would not comply with the terms of their stay in Canada. I think fettering discretion is a serious consideration in these cases.

Conclusion

As I mentioned in the Ming Pao piece, I see this ATIP as the tip of the iceberg. I have a feeling that there may be grounds for opening several files to look at how the temporary resident factors were balanced in the decision.

Remember the law states:

Obligation on entry

20(1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,

(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and

(b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by […]

Jul 10, 2016

Canadian Immigration Law Blog

Port-of-Entry Examination Procedures – Walk Through YVR (via IRCC’s Enforcement Manual 4)

With summer season upon us. the end of the leniency period of the Electronic Travel Authorization (eTA) regime, and the development of Canada’s Interactive Advanced Passenger Information (IAPI) system, Canadian Border Officers are about to get very busy.

Upon arriving at a Canadian airport, as many traveller’s have experienced, those without Canadian permanent resident status, citizenship, or special travel document (e.g. APEC) are often forced to wait in a long-line of fellow travellers preparing for primary inspection.

At YVR, you enter into a large blue-carpeted, room where you join others in a winding line. Canadians and PRs get a separate automated computer line.

For those nervous about border entry and how to best express themselves to an officer upon entry, I highly recommend ENF 4 – Port of entry examinations, IRCC’s enforcement manual. While this is not the exact training manual provided by Officers nor does it hold legal authority, it is as close to an instruction manual as is publicly accessible.

I found two portions of the manual quite interesting (found on pages 28-29, 31 of ENF 4 and may be of use to many of you.

Primary Immigration Line

First, contrary to public perception, there is some rhyme and reason to CBSA’s line of questioning. As stated in the manual (section 7.5) in primary examination questions will be asked such as:

What is your citizenship? (to gauge citizenship/eTA related issues)
Where do you reside? How long have you been away? (to gain information about residency – A28 residency obligation questions)
What is the purpose of your trip to Canada? (to gain information for control purposes)
Do you intend to take or seek employment while in Canada? (this triggers enquiries into whether the individual is seeking entry into labour market)
How long do you intend to stay in Canada (this triggers whether an individual is seeking a visitor record for longer than 6 months and perhaps (although not written in manual) whether there is a risk of overstay
What is your name? (this helps clarify any identity related issues – re: declaration card).

According to ENF 4, Border officers are not supposed to canvas criminality issues at Primary and refer these cases to Secondary. In the case of visa-exempt foreign nationals and TRV applicants, much of this will already be in the system (unless misrepresented) usually already triggering the referral.

TELO Coding

The Border Services Officer is to access four reasons for referral – the time of stay, intent to seek employment, lookout (i.e subject to watch for/flag), or Other (reasons not covered). Lookouts are most common as flags in GCMS, the automated system that the Border Officer will have upon entering your vitals into the system. Everyone should now expect that a GCMS entry has been created for them – this is triggered by any eTA application, any temporary residence or permanent residence application, and even being a listed family member on any existing Canadian temporary or permanent resident’s application.

Consider the above the triggers for secondary.

Immigration Secondary

If you are sent to secondary or you are an individual making or finalizing a temporary resident application or permanent residence landing you will be sent to a separate area. At YVR, this involves gathering your luggage, parking it in a fenced off area, and walking into a very cold room to await an Officer.

On pages 37-38 of ENF 4, the manual canvasses basic questions the border officer should ask at secondary. It is important to note many of these are repeats – as discrepancy in answers can itself trigger follow-up investigation.

The questions (follow by issue triggers) are

What is your name (identity)
What is the country of your citizenship? (citizenship)
Where do you reside? (residency)
What is the purpose of your trip? How long do you intend to stay in Canada? Where in Canada are you planning to go? Do you intend to look for work in Canada? Do you intend to study in Canada? (intentions – whether holding relevant visa/whether will leave at end of stay)
May I see your ticket, please? What sources of funds do you have access to while in Canada? (funds available)
What is your occupation? Do you intend to visit anyone in Canada? Do you have any family or friends in Canada? (personal history – ties to Canada/home country, will they leave at end of stay)
Do you or have you had any health problems? Have you ever been convicted of a crime or of an offence? Have you ever been refused entry into or removed from Canada? (background – in admissibility).

At YVR, several steps usually follow. If it is a simple application (i.e. an approved study permit that needs to be printed), the border officer will print it on the spot and provide it to you. If it is for a family or may take some time, you may be asked to sit down for a few minutes as the Border Services Officer completes the printing. If there are concerns about you or you require further examination, you will be placed into yet another area where the appropriate inquiries will be made as you wait.

Conclusion

Before entry into Canada, especially if the circumstances, may be factually convoluted, it is useful to seek advise (or advise in the case of counsel) on how to truthfully answer CBSA’s questions in a manner that is honest, forthcoming, but does not trigger unwarranted suspicion.

Many times, coming off a flight jetlagged, documents in a scattered pile, it is easy to make very human errors that are not intended as misrepresentations. Unfortunately under Canadian immigration legislation, misrepresentation does not require intent and the statements you make will be recorded and could have severe long-term consequences upon your future entry.

Having myself seen the secondary process a few times both at airports and land borders, I can tell you that the mood is nervous, the uniform’s intimidating, and often times the questions (if English is not your primary language) seem like personal investigations.

Having a plan in mind and responses prepared to concerns is always good practice and one that I review with my clients before any attempted border entry or application.

Jul 6, 2016

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

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.

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?

Jul 5, 2016

Canadian Immigration Law Blog

Exciting Announcement Vancouver! – After Hours/House Call Immigration Legal Services Beginning September 2016

Image 1 from Wikipedia Commons

Image 2 by Russell Lee - U.S. National Archives and Records Administration, Public Domain, https://commons.wikimedia.org/w/index.php?curid=17047107

Vancouver!

Over the past two years of meeting hundreds of potential clients, one common theme has come up time and time again – lawyer hours don’t work for the working class immigrant.

You often have a difficult time getting time off form their employers, you worry about losing valuable pay-time, and your immigration plans are often thing you would rather not discuss during work hours.

That is why I will be offering Vancouver’s first after hours immigration service. I will see clients after 5pm when most law firm’s close their doors and on Saturdays when you and your family finally has a second to breathe from a stressful 9-5, Mon to Fri. I also can see you during lunch hour if that is your preferred strategy.

For those that would prefer to discuss immigration in the comfort of their own home, I will also offer limited house calls with a simple booking process.

Virtual Meetings

Do I need to be in Vancouver? Is it easier to find someone in my local community?

Canadian immigration has evolved these days where I would estimate 65-70% of the work I do are for clients not currently in the city. There are so many ways for us to communicate virtually and share in real-time documents and information that may affect your application.

I look forward to continuing to serve you better 🙂

Jun 29, 2016

Canadian Immigration Law Blog

Five Tips to Paper Trail Like a Canadian Immigration Lawyer!

I have been very busy. Still there are no excuses I realize I owe about a billion posts for my one month hiatus. This represents the beginning of my seeking for forgiveness from my faithful readers/followers.

Introduction

I wanted to put out a post today that will help self-represented litigants dealing with immigration. I have several of these types of clients who a post like this is directed at. Good/working class command of the English language, a basic understanding of the immigration system, and possibly without funds to hire a lawyer to larger engagement unless a problem occurs.

However, this is also a group that may be very prone of falling into traps or being the victim of administrative mistake. I really like this quote by Prothonotary Kevin R. Aalton in John v. Canada (MCI) 2016 FC 572. The underlying decision was a successful extension request for time to file an applicant’s record.

Like with any job, there are obviously some tricks to the trade that I can’t share. These are best strategies for which we provide a value add as legal professionals and by which we carve our living. However, in my mind, a well-functioning immigration system is not one where 90% or even 60% of applicants should have to speak to a lawyer. This is a system-made for the layperson and I want to give some advice (non-legal/substantive) that can help you organize your immigration file.

Below are five “layperson” tips for papering (or digital papering) an immigration file.

Why is papering important?

In too many consultations, I run into individuals who don’t keep accurate records of their immigration file. After a negative decision, they merely hold a one page-standard form letter from Immigration, Refugee and Citizenship Canada (“IRCC”) that frankly doesn’t provide even the starting point for what has happened. Many individuals do not keep copy of submitted forms, others lose correspondence, and I find few take proper screenshots of electronic applications.

In the event of refusal or a request for further information, these paper trails are critical in defending one’s position. For example if a document is lost or claimed to be not received by IRCC, if you have no proof that you sent it you will have a difficult time seeking reconsideration or judicial review of a negative decision. For an example of this in IRCC policy see OB 265-A here.

More specifically, on the issue of police certificates and Express Entry, showing you have met the document requirements when a police certificate has been applied for but not received is a crucial step. Individuals who cannot provide this proof are subject to their application being refused for incompleteness – which is equivalent to a Monopoly “Go Back to Start. Do Not Pass Go.” See below:

These are just two small examples of what I would say is currently the biggest non-legal barrier to successful immigration.

The ultimate consequence of not papering is when you do seek legal advice, the lawyer/consultant will have to start at square one with your file. This involves obtaining an Access to Information request (“ATIP”) which itself will take at least 30 days and often more to obtain. During this period you may lose out on important deadlines – to respond to information, file an appeal, or file a judicial review as your case may be.

Where a file has a long history, getting those documents may be further delayed by ATIP officers asking for an extension of time to deliver your documents.

During this gap, there is very little to do but wait and see if no accurate records are kept.

Papering Tips

TIP ONE – Screenshot everything – use Print to PDF where ever possible

One of the challenges with many immigration applications and processes moving digitally now is that there is no longer a physical paper trail but a series of screened pages that may not reappear again.

A good practice is to print everything to PDF. Often times you may be tempted to a simple screenshot:

However, something like this short excerpt from a policy guide may be useful now, but perhaps by the time a decision is made on your application the website no longer exists or the policy has changed.

Printing to pdf ensures that you get this critical portion showing when you accessed the document:

This also is especially relevant when submitting online applications. For example, several online applications currently do not charge individuals correct fees and require an additional receipt upload or that have document checklists where you need submit 20 plus documents.

Printouts showing what you have uploaded are very important and can often time be trigger points for self-identifying mistakes and deficiencies.

TIP TWO – Document Your Third-Party Document Requests

Canadian immigration is becoming increasingly dependent on third parties, often times putting your future in Canada at the hands of a third party state police office or educational credential assessment companies. Mistakes can happen there and it is good practice to keep accurate records of all requests tied to your immigration record. For example, you may need to request a name change to an educational credential assessment or police certificate or even follow-up with a doctor to fix an upfront proof of medical certificate. All of these would not be possible without keeping accurate records of third party documents.

This is also particularly important when dealing with Visa Application Centres or Provincial Nomination Programs which often have a line, but not necessary the most perfect line, of communication with IRCC. You want to have paper trails of communication in the event of any discrepancies or gap where information provided by one party can supplement information needed by another.

TIP THREE – Number/Folder Your Documents

When creating your paper folders/online folders it is important to properly number and folder your documents so you do not accidentally get duplicates. This is particularly important in the Express Entry process where you will have screenshots that you will need to take at the profile creation stage and later the permanent residence stage, each of which consists of hundreds of pages of information.

Doing so also makes it more intuitive for an Officer trying to review your file. I have mentioned this before, but I personally believe to submit a complex file without a specific document checklist (not just the one provided with the application forms) is a disaster waiting to happen.

Use (1), (2), (3) and (a), (b), (c) where appropriate and save a lot of headache from forgetting to upload or include required documents.

TIP FOUR – Don’t Mix Your Drafts With Your Final Copies

In the immigration process, there are inevitably times documents need to go through revisions. Perhaps you need to ask your boss to write you a reference letter but that reference letter needs to be edited. Perhaps, you are working with a family member abroad who is working on a portion of an explanation letter for a family sponsorship.

There are many ways to try and ensure drafts and final copies don’t mix. Some lawyers do a v1, v2, v3, final approach. Others I have seen keep a draft document folder that holds all unused copies. Regardless, nothing is worse than submitting a document that accidentally contains comments or is missing important information because it is a previous version. I recommend individuals to always submit PDFs as final copies and always label final copies as such.

TIP FIVE – Courier/Track Everything Coming in and Out and Make Sure Right Process is Chosen

One of the musts I have come to realize is that documents need to be tracked upon exiting your hands and entering your hands. I strongly recommend self-reps to invest in a date stamp to properly make sure all official documents are dated. This is important especially if a document is snail-mailed by IRCC and is received by you several weeks after the date. In the event, your own deadline is coming up you may need to show proof that are still within the time frame to respond or initiate further action or request an extension as required.

Second, I would suggest that when mailing immigration documentation (unless tactically otherwise), this mail should be tracked. Immigration applications contain several pieces of private information and particularly for overseas offices or domestic offices where there are many branches, it is easy to misdirect a piece of correspondence.

Also, it is important to follow IRCC’s instructions and read them carefully when choosing what medium to response. For example, often times a response can only be sent by one medium only as indicated in a letter (i.e. return email). Other times there is no requirement, so it may be in the interest of an applicant to send it via two mediums to ensure a document is received and tracked. Finally, there may be times where there are no channels and other channels (case-specific enquiry, case review, MPs office, etc.) need to be contacted in lieu.

Conclusion

Papering (or digital archiving) in Canadian immigration is increasing in importance. I have not even begin to touch on the other implications (for example Employer Compliance) which will be subject to future posts.

Please contact me at will.tao@larlee.com if you ever have issues with papering/records. I have a good track record with reconsideration requests and I hope to help you moving forward!

May 20, 2016

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

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:

Advertisements from the company for the position;
Internal role profiles;
Paystubs;
Internal Contracts; and
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?

Recent Blog Posts

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

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

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

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

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

Restoration of Temporary Resident Status

Marginal note:Restoration

Marginal note: Exception

Conditions — study permit holder

Determine your eligibility — Work after graduation

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Improving the Immigration Detention Process – My Thoughts and Experiences

The Case for Writing Employment Reference Letters in an Employer’s Working Language

Canadian Immigration Updates – July 2016

Reader’s Question: “I have a consultant working on my file, can I still see you for independent advice?”

Regionalism and Geographic Discrimination in Canadian Immigration? – A China Case Study

Obligation on entry

Port-of-Entry Examination Procedures – Walk Through YVR (via IRCC’s Enforcement Manual 4)

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

Exciting Announcement Vancouver! – After Hours/House Call Immigration Legal Services Beginning September 2016

Five Tips to Paper Trail Like a Canadian Immigration Lawyer!

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

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Restoration of Temporary Resident Status

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Obligation on entry

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