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Jul 6, 2015

Canadian Immigration Law Blog

BC Re-Opened July 2nd With New Programs and Criteria

I apologize for the long period of no posts. Even checking twitter for #cdnimm news has become a bit of a luxury with several urgent client files on the go.

I wanted to update everybody on important changes that have been made to the BC PNP.

Note that the folowing post was co-written with (and, on that note, substantially written) by Steven Meurrens and can be found on his blog. We hope this piece serves as a good summary and breakdown of the information made available by the BC PNP. I have reposted it with his permission and ask that anybody who wishes to repost it does the same.

Introduction

On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP”) re-launched with new program requirements and processes. The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream.

The most significant changes to the BC PNP include:

Introducing an online application process with an electronic payment system;
Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program;
Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap); and
Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test.

Skills Immigration and Express Entry BC

The Skills Immigration is divided into the following substreams:

Skilled Worker
Health Care Professionals
International Graduates
International Post-Graduates
Entry Level and Semi-Skilled
North East Pilot Project

As well, the Express Entry BC stream is divided into the following substreams:

Skilled Worker
Health Care Professional
International Graduate
International Post-Graduate

Most of the requirements to the Skills Immigration streams and sub-streams remain largely unchanged. However, in addition to requiring that applicants apply online, the following are new program requirements:

In the Skilled Worker substream the BC PNP has clarified that “several years of directly related work experience” means two or more years;
The “Market Rate” for a position is based on an applicant’s employment and educational experience. It is unclear whether this mean that the Low Rate on the Working in Canada website remains the threshold; and
Applicants with job offers in NOC B occupations must demonstrate English language proficiency at Canadian Language Benchmark (“CLB”) level 4.

The BC PNP will only be accepting 200 new Skills immigrant applications in 2015 [Update: this filled up 24 hours after it opened]. This limit does not apply to Express Entry BC, the Health Care Professional stream, or the Northeast Pilot Project. New applications from individuals residing in Metro Vancouver are restricted to employment offers above the British Columbia median wage of $22.00 per hour.

Entrepreneur Immigration Stream

While the Skills Immigration Stream remains largely unchanged, the Entrepreneur Immigration Stream has been completely overhauled.

The Entrepreneur Immigration Stream is an expression of interest program similar to CIC’s Express Entry. Applicants must register with the Entrepreneur Immigration Registration (“EIR”), and registrations will be ranked using a points system. The highest scoring individuals in the EIR will be invited to apply to the Entrepreneur Immigration stream. The BC PNP anticipates processing Entrepreneur Immigration Stream applications within 3 months. Successful individuals will be required to enter into a Performance Agreement with the BC PNP stipulating time-frames for the completion of their business commitments. Once the entrepreneur satisfies the terms of the Performance Agreement, the BC PNP will issue the individual a nomination certificate which can be used to apply for permanent residency.

It is important to note that the BC PNP will only accept a maximum of 200 registrations per month.

To submit an EIR, a prospective individual must meet the following requirements:

Be lawfully admitted in the country that they reside;
Not be inadmissible to Canada or have an unresolved refugee claim in Canada;
Have a personal net worth of $600,000.00;
Have either:
- a minimum of more than three years experience as an active business owner-manager;
- more than four years of experience as a senior manager; or
- a combination of at least one year of experience as an active business owner-manager and at least two years of experience as a senior manager;
Have a minimum of two-years of post-secondary education or experience as an active business owner-manager with 100% ownership of the business for at least three of the past five years;

When registering for the BC PNP Entrepreneur Immigrant stream applicants will also need to submit short business concepts that will have to demonstrate that their proposed business meets several requirements, including:

that the business be an eligible business established either through starting a new business, purchasing an existing business, partnering with an existing business, or partnering with a local or foreign entrepreneur to establish a new business;
that the individual make an eligible personal investment of at least $200,000 in the proposed business (or $400,000 if a Key Staff member is proposed); and
that the business will create at least one permanent new full-time equivalent job for a Canadian citizen or permanent resident in the proposed business.

The BC PNP has introduced very stringent and complicated requirements regarding what constitutes an eligible personal investment that are extremely circumstance specific and beyond the scope of this update.

Scoring in the Entrepreneur Immigration pool is as follows:

Scoring Sections	Points
1. Experience	24
2. Net Worth	12
3. Personal Investment	30
4. Jobs	36
5. Adaptability	18
6. Business Concept	80
Total Points Available	200

Experience points are calculated as follows:

Experience	Total Duration	Points
Business Owner-Manager Experience	Less than 12 months	0
	12 to 24 months	4
	25 to 36 months	6
	37 to 48 months	12
	49 to 60 months	15
	61 months or more	20
Senior Manager Work Experience	Less than 24 months	0
	24 to 48 months	4
	49 to 60 months	8
	61 months or more	12
The maximum score available for this section is 24. The minimum points requirement is 8. Individuals cannot get points for both Business Owner-Manager Experience and Senior Manager Work Experience, but rather have to choose.

Net worth points are scored as follows:

Personal Net Worth		Points
Total Current Assets (cash and liquid funds)	Less than $50,000	0
	$50,000 to $199,999	1
	$200,000 to $399,999	3
	More than $400,000	6
Total Personal Net Worth	Less than $600,000	0
	$600,000 to $799,999	1
	$800,000 to $1,999,999	3
	$200,000,000 to $4,999,999	5
	$5,000,000 or more	6
The maximum score available for this section is 12 The minimum points requirement for personal net worth is 1.

Eligible personal investment will be scored as follows:

Eligible Personal Investment	Points
Less than $200,000	0
$200,000 to $399,999	6
$400,000 to $999,999	20
$1,000,000 or more	30
Applicants must score at least 6 points, or 20 points if they are proposing key staff, to meet the minimum requirement for this section. The BC PNP will not consider as eligible any investment made prior to the date that an individual is invited to apply for nomination.

Jobs will be scored as follows:

Number of Full-time Equivalent Job Positions Created and Maintained	Points
Less than 1	0
1	2
2	6
3-4	12
5-6	20
7-8	28
9-10	32
11 or more	36
The maximum score available for this section is 36. The applicant must score at least 2 points, or 12 if there is key staff. The jobs created and maintained must pay wages that are consistent with the skill level of the position created

Adaptability will be scored as follows:

Factor		Points
English language proficiency	None or minimal, similar to CLB 3 and below	0
	Basic understanding, similar to CLB 4	2
	Intermediate and advanced, similar to CLB 5 and above	4
Education level	Less than two years of post-secondary education	0
Education level	Two years or more of post-secondary education	3
Age	Less than 20	0
	21-39	3
	40-60	4
	61-64	2
	65 or older	0
Business Exploratory Visits to British Columbia	No	0
	Yes, 1 or more years ago	1
	Yes, less than 1 year ago	2
Canadian work experience, business experience, or studies from within Canada for at least 12 months	No	0
	Yes	5

The scoring for Business Concepts remains unclear. 12 points out of a possible 80 are based on the location of the proposed business as follows:

Population of BC Regional District	Points
More than 500,000 people	0
200,000 to 500,000	1 point
100,00 to 200,000	3 points
70,000 to 100,000	6 points
60,000 to 70,000	8 points
35,000 to 60,000	10 points
Less than 35,000 people	12 points

The remaining 68 points are based on a variety of factors whose exact point allocation has not been released, and will be based on a 1,000 – 1,500 word business concept that EIR registrants must submit. The points will be based on commercial viability, transferability of skills, and economic benefits. Applicants must score a minimum of 32 points, based on what at this point appears to be an unpublished checklist.

As noted above, the highest ranking applicants in the EIR will be invited to apply for nomination. Those applicants that are invited to apply will need to engage a qualified supplier to review their personal net worth and accumulation funds as part of the nomination process. Once the nomination is approved, the applicant and the BC PNP will enter into a Performance Agreement, and the entrepreneur can start their business. The BC PNP will support the entrepreneur in a work permit application to facilitate this.

Once the entrepreneur completes the terms of the Performance Agreement, he/she can submit a Final Report to the BC PNP to be issued a nomination certificate. The entrepreneur must demonstrate to the BC PNP that they:

are actively managing a business (i.e., be accountable for the day-to-day operations of the business) in British Columbia;
reside within 100 kilometers of the business;
have been physically present in British Columbia for at least 75% of the time that the individual was on a work permit; and
have complied with any other terms of their Performance Agreement.

The nomination certificate can then be used to support a permanent residency application.

More information about the Skills Immigration and Express Entry BC programs can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Skills-Immigration/Skilled-Workers.aspx

More information about the Entrepreneur Immigration Stream can be found here: http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Entrepreneur-Immigration/Program-Requirements.aspx

Please contact us if you have any questions or concerns about his upcoming change.

Jun 22, 2015

Protecting Yourself From Canadian Immigration Employment Fraud – Three Preliminary Steps

Introduction

Unfortunately, as I have blogged and written about on numerous occasions, there are way too many cheaters currently operating in the global world of Canadian immigration consulting, recruiting, and employment of foreign employees. There’s a whole other issue of incompetent practitioners, but in this post I want to tackle those who purposely are operating fraudulent schemes.

I feel for the victims. Being cheated on is absolutely devastating, regardless of what context. Immigration cheating is another level – individuals quit their jobs, take their kids out of school, and prepare several steps in order to begin what is expected to be a hopeful journey to Canada. All of this to find out there is no job, no position, no work authorization, and no prospects of anything other than heartbreak and financial loss.

This blog post is not a panacea to those challenges. Excellent, well-operated schemes may require competent legal experts to untangle. However, a majority of schemes are so bad and so illegal that a few steps should be able to get to the bottom of it.

So here goes….

1) Read the Contract and Research the Company (Get Advice if Necessary) – In many countries, contracts don’t carry that much legal weight. They carry a lot of weight in Canada. They especially do in the Employment Context.Fraudsters try and put together something fancy looking and expect that you will sign it without reading because it “looks official” and “Canadian.” Especially for non-English speakers, a fancy seal or clauses may immediately give you a false sense of trust. Every clause needs to be read and advice sought on every clause that smells fishy.

Prior to signing your name, consider some of the following (basic W’s)

Who are you contracting with? An employer or an agent? What is there name? Do you have any independent proof they exist?
What is the content of your contract? Many of these fake contracts are doctored up by individuals with no legal or business experience. Are the terms of the contract even feasible? For example I’d be very concerned if a contract contained clauses that didn’t clearly set out a salary, a location of employment, or necessary immigration steps that needed to be taken prior to effecting the contract.
Where is the contracting party located? Start with a basic google/baidu/whatever your country uses search? Where are their offices located? Do they have any other employees? Are they listed in local business guides? Have you performed a Linkedin search? Is the same contracting party the one hiring you? A related issue is whether your work is to be performed at a specific “location”, but that will be a topic of a whole separate future post.
When are you expected to start? Begin your immigration process? Hiring a foreign worker is not easy. Any job that states you can come next week with a simple “visa” or “work visa” should raise red flags. Any company that asks you to pass over money to assist in your own hiring is an absolute red flag! There are strict rules against employees paying for their own Labour Market Impact Assessment fees. Companies that ask you to pay a “lump sum” to the company for your own work permit or visa processing fees in the contract should be viewed with some suspicion.
Are there third-party agents involved? This should be an immediate red flag, particularly if the agents are from a foreign country and not located in the country you are getting your job in. Recruitment agencies are regulated (although not enough) in Canada, but arguably roam free globally. Be very careful when dealing with them and their purported job offers.
How are the companies aesthetics? Do they have a reputable website? Are there pictures of corporate executives/employees listed? Does the contract have a corporate letterhead? Is the signatory page properly effected?

2) Key = Find a Local Canadian Liaison

You don’t necessarily need a lawyer but you need someone knowledgeable and trustworthy on the ground who can make inquiries. At the very least, they need to be able to go to the company that offered you the job, knock on the door, and confirm that the company exists and that you are indeed the chosen candidate of the company.

I would not sign a contract until I have at least that personal knowledge or knowledge of a trustworthy individual.

3) Watch Your/The Communication

As giddy as you may be to get an awesome job offer from a company, make sure to protect your own personal identity. Don’t send information to anyone, definitely without solicitation and always cautiously when solicited. My general rule is I want at least a phone call or a Skype meeting with an individual before I sent personal information outside of my email signature.

Carefully track the communication – who is responding to the emails? Are they professional (do you know their name?)? Are they asking for reasonable requests?

If you have any doubts, remember a simple Google search is your friend (although not always a perfect one). If it is indeed a fraud or a scam there are likely other experiences. If the individual has provided fake contact information, it will likely come up as spam in a Google search. Several consumer protection sites exist that also look at the roots of domains. If a website purported to be a well-established Canadian business is showing up as a recently created site from the United States, red flags should definitely be raised!

Here’s to a fraud-free Canadian immigration system 🙂

Jun 21, 2015

Canadian Immigration Law Blog

Complex Immigration Scheme or Applicant in Impossible Position ?

Complex Immigration Scheme

Particularly in cases where a bad faith relationship pursuant to r.4 of the Immigration and Refugee Protection Regulations is being alleged, Minister’s counsel may begin on a process of what I call “scheme formulating.” A process by which they will theorize the primary purpose of immigration as an elaborate scheme.

First of all let me say flat out, I hate fake relationship schemes. As an immigration lawyer and someone who wishes to lawfully sponsor my genuine spouse down the road, nothing sickens me more than a fake sponsorship scheme. There are tons of companies out there that for a few hundred bucks can cook up a way to get someone into Canada – fake refugee claim, fake sponsorship. These individuals are the reason scrutiny is that much heavier on genuine applicants.

Because of the knowledge of these schemes, inevitably some individuals with genuine sponsorships have their relationship labelled schemes. Particularly at the Immigration Appeal Division (“IAD”), the schemes end up making up a large part of the written decision.

Placing the Applicant in an Impossible Situation

How is an application put in an impossible situation?

In Sandhu v. Canada (Minister of Citizenship and Immigration) 2014 FC 1061 Justice Montigny sets out as follows (emphasis added):

[29] It appears from a careful reading of the decision that the Board member was prone to speculation and disregarded significant portions of the evidence. For example, the Board member found that because the Applicant’s husband knew details about her life, including her address, that he “either memorized or read out the address of the applicant with its postal code in order to try to show he is knowledgeable” about her. Not only is this mere speculation, but it also puts the Applicant in an impossible situation: as was the case in Paulino v Canada (Minister of Citizenship and Immigration), 2010 FC 542 (CanLII), “[a] detail … that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication” (at para 58).

In Sandhu, the IAD decision both the stated knowledge of the Applicant about the Sponsor as well as an Affidavit from the Applicant nothing that an “uncle” was a family friend (the Board Member concluded was her ex-husband) were disregarded.

In Paulino v. Canada, cited in the Sandhu decision, provisions were made by the Applicant to support the Appellant’s son. The IAD member found that these provisions were part of a scheme. At the Federal Court, Justice Russell, in allowing the judicial review, wrote (emphasis added):

[57] For example, in paragraph 32 of the Decision, the Officer refers to different information which the couple gave “about the cause of the dissolution of the Appellant’s first marriage.” The Applicant has referred to a mental disorder and Mimi had referred to jealousy over the material possessions of neighbours and frequent arguments. There is nothing inherently incompatible about these explanations. Someone with a mental disorder can be jealous and initiate arguments. The Officer then goes on to speculate about the Applicant’s relationship with his ex-wife and mentions that he has made provisions for Mimi’s son. All of this is then subsumed by a general finding that whatever the couple says is all part of a general scheme of fabrication:

There is evidence that he has made provisions even now for the Applicant’s son. However, this is likely integral to the complex scheme the Appellant’s (sic) has fabricated; if he is to be believed, the full extent of which was not known to the Applicant. The panel finds that the couple’s shared knowledge, especially in the personal aspect of their lives, are not reflective of what one reasonably expects to be shared by a couple in a genuine relationship, who avers to be head-over-heel (sic) in love with one another.

[58] Based on the Officer’s approach, it is clear that the couple cannot win. A detail (here the provision that the Applicant has made for Mimi’s son) that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication. All of their supporting documentation, and even positive factors, are left out of account because they are, according to the Officer, part of a general scheme of fabrication. The Officer says that “their answer about their mutual feelings for one other and their plans are vague: nothing is specific.” Yet there was considerable documentary evidence before the Officer, some of it pre-dating the visitor visa application, that spontaneously reveals the couple’s mutual regard and love for each other. All of this evidence is discounted.

The following are several possible examples I have seen in addition to the two above cases:

Appellant opens a joint bank account for Applicant (Canadian spouse) – Shows financial interdependence, but can be construed as a credibility concern because shows financial scheme -;
Appellant provides financial support to Applicant (Canadian Spouse) – Sign of financial interdependence, but can be construed of evidence of ‘buying way into Canada’.
Appellant has a child with Applicant (Canadian spouse) – Shows purpose of relationship and love, but can be construed as “tool” for immigration;
Appellant states that they have no immigration purpose to be with Applicant (Canadian spouse) but lack of immigration purpose taken as negative credibility finding because “no other reason appears to exists” – Appellant being honest about purpose should be a positive factor, but honesty treated as dishonesty and grounds for negative credibility finding;

Some of these situations have not yet ruled on by the Courts but I strongly believe they fit the mold (assuming the finding contributed to the the unreasonableness of the overall decision and tainted the overall reasoning).

Challenges with the Argument

I think there are certain issues that will challenge the ability to rely on this decision as a blanket. First and foremost, the “reasonableness standard” still provides that the tribunal-member has discretionary jurisdiction to decide questions of fact. Decisions also generally will not be overturned on one or two unreasonable factual aspects if the decision as a whole is still reasonable. I believe that the difficulty will be in Counsel showing that the one interpretation of a positive primary purpose element as a negative primary purpose element had the effect of leading to the discounting of additional evidence which led to the negative finding.

Conclusion

Every negative credibility finding and negative primary purpose element should be carefully viewed in context. Is that element strictly a negative factor? Can it possibly be a possible factor construed to place the Applicant in a positive situation? It may be a difficult argument to establish (given only a few judicial precedents), but it is one that becomes increasingly important as marriages, relationships, and the ‘bad faith’ scrutiny gets stricter and more complex.

As a post-script, we used this argument in the above example involving bank accounts in recent Judicial Review and were successful. The decision was a brief one and it was only one of many factors the Judge considered, but we arguably ‘won’ on this issue. It has some legs for sure.

Jun 21, 2015

Canadian Immigration Law Blog

Opinion: Gentle Recommendation Not Firm Laws Should Guide the Citizenship Oath/Niqab debate

Introduction and Background

The debate between the place of niqabs in Canadian Citizenship ceremonies is a complicated one.

Well-reasoned arguments have been put forth by both sides, some like Omar Aziz who pointed out in his piece that while a woman’s freedom to dress as she wishes must be protected, the niqab itself challenges our foundations of liberal democracy in Canada. Gerald Kaplan, in his piece admits that he was first put off by the niqab but that having met several Muslim women (many of whom proudly wore the niqab), he changed his views and believed that both the infringement of a woman’s right to choose how to dress and the making of the niqab a political issue was not appropriate.

Just recently, through a last-minute Bill introduced into the House of Commons prior to its pre-election summer recess, Minister of Multiculturalism and State Tim Uppal, has solidified that the Government’s position that the niqab must not be worn at a Citizenship ceremony. Bill C-75, or the Oath of Citizenship Act, would make it a requirement for all individuals to have their face uncovered and be seen and heard taking the Oath of Citizenship. This comes in light of another recent development, which saw Tim Uppal support his fellow MP Lisa Raitt in a decision to waive a new CATSA requirement for individual who wear headgear (i.e turbans) to have them inspected during secondary screening.

What is very interesting about Bill C-75 is that it comes at a time where it has no possibility of being passed into law prior to the election in the Fall. It also comes at a time where the Federal Court of Appeal has yet to decide on the Federal Government’s appeal of the ruling of Justice Boswell of the Federal Court of Canada in Ishaq v. Canada (Minister of Citizenship and Immigration) 2015 FC 156.

In Ishaq, the Applicant filed a Judicial Review for declaratory relief of the requirement that she reveal her face during the Citizenship oath. She had completed all of her other obligations, and had even revealed her face prior in order for her identity to be confirmed. At the time there was both an Operational Bulletin and Manual which required as a matter of policy that an individual visibly reveal his or her identity during the oath. Justice Boswell found that this policy was unlawful both in light of the Citizenship Act and Regulations which required only that the oath be sworn and that a signature be signed and contained no language regarding visual identification. Justice Boswell did not, however, tackle the Charter issues raised and decided it was sufficient to find the policy unlawful.

Bill C-75 thus represents the Government’s steps to address many of Justice Boswell’s concerns regarding the pre-existing policy. As discussed the Federal Government’s appeal in the case is still in process.

My Perspective

I think the main challenge we are having with this debate is that the harm principle (as set out by famous utilitarian political thinker John Stuart Mills) appears to split us two different ways. The harm principle although not enunciated word for word within our legal texts find its way into our case law and into our legal tests (such as the Oakes Test to determine whether it is acceptable to uphold a Charter violation).

In one sense, the niqab represents to many Canadians (what the Government has stated is a majority of Canadians) something they culturally disagree with as un-Canadian – i.e. it doesn’t make us happy and doesn’t bring us utility. They see the niqab as a symbol of misogyny, of a religious/societal modus where women are not recognized on equal footing and where men subject to patriarchally-created rules. For the record, I do not conform to this over-simplified belief and know both individuals who wear the niqab and the hijab out of free will and as part of their complex, strong identities.

Moving to Mills’s second tenant of the principle, the niqab does not apply in the traditional harm principle sense as it does not create any harm to the freedom of any individual or the operation of the state. Ironically, wearing headgear through security is an issue that does possibly trigger the harm principle. The harm principle arguably came through and was applied in the 2009 case of Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37 where a religious group argued its religious inability to appear in photographs exempted them from the requirement to take photo license pictures. The Province argued that highway safety and licensing problems were created for the Province and that it was a demonstrable legal concern. Within the Citizenship context is hard to say that the security of other individuals or the state is compromised. There is no harm to either fellow oath takers, the judge or the audience if an individual with a niqab does not show their face. The physical identity is revealed and confirmed in several steps prior to the actual oath taking. There are minimally impairing options that would allow an oath taker to reveal their identity right before in a private setting or through biometric technology.

On this point, I think the harm principle is not challengeable. It is difficult to buy an argument from the Federal Government that public safety is harmed by not confirming the individual’s identity at that exact moment they swear the oath. I don’t think anybody can put forth a strong argument that the niqab harms anyone’s freedoms other than the perceived “western-sensibilities” of Canadians.

The argument that the niqab harms the “liberal democracy of Canada” is also a little far-fetched (with respect to Omar Aziz’s argument). While the principles of democracy may have been formed in Ancient Greece through face-to-face talking circles of aristocratic white males, and arguably developed in Canada and North America by similar artistocratic white men in face-toface meetings, democracy does need to be spoken or expressed face to face. This is even more true in today’s diverse North American society. Individuals with disabilities, individuals from different religious backgrounds, from different countries of origin, can all participate in our democracy simply by wearing what they want, living where they want, and supporting politically whom they want. They don’t need to tell anybody or say anything, and importantly show their face and reveal their identities. Even the act of voting, once registered by name, is inherently private. If our only justification for the niqab requirement is anchoring on tradition, arguably we should be celebrating Citizenship ceremonies with Aboriginal traditions, dance, and drumming (by the way, which unrelated we should start doing).

What about the utility argument? What makes a majority of Canadians happy. The defense for the niqab-ban is that a majority of Canadians are supportive of this policy (in a sense, that it makes a majority Canadian’s “happy.”) This makes sense in the context of most decisions we have the unique democratic to vote on. We get to vote for elected officials, for transit reform, for support of certain policies. We vote for the individuals who bring us some utility.

However, there are two problems with this line of thinking. We don’t vote, and we shouldn’t vote, on issues that threaten to take away from the fundamental human rights of other individuals. This includes the Charter right of religion. Along this line of reasoning, the Government’s logic could be extended to things such as same-sex marriages. The Government could come out with a policy that banned same-sex individuals from taking the Oath simply because a majority of Canadians support it (which thankfully, which most Canadians no longer do). We cannot allow legal decisions to be made on the normative feelings of the tyranny of the majority and without a sufficient legal basis (which the Federal Court has yet to find in support of the policy).

Second, if this was indeed an issue where a “majority of Canadians” do not support the niqab, we need to ask ourselves where the statistical proof is coming from. Without any sort of reliable, independent census, we cannot rely on scattered polls of 1,000 individuals. Most immigrant families I know do not even bother or risk answering any of these questions by phone. I do not for one minute think that a small survey sample (regardless of whatever mathematical formula is used) can suddenly represent all Canadians. However, this same justification is being used time and time again to support new legislative change in immigration.

We are also forgetting, in all this debate (and that the Federal Court alluded to in Ishaq), that the Citizenship Oath itself is a celebration of the transition of an individual from one Country to another and many feel proud of being able to maintain both religious and cultural traditions. Individuals can choose to swear to the Queen of England upon any religious book of their choice, including the Quran. It is indeed a beautiful hybrid of our British tradition and our multiculturalism openness, one I hope is maintained (plus a little more Aboriginal perspective).

What I Think Should Be Done – Set Non-Binding Recommendations. A Woman’s Right to Clothing Preference is Not a Legal Debate.

Laws are different than policy. That was made clear in Ishaq. Policies are problematic when they are attempted to be enforced as laws or defended by institutions as the only way or traditional way things operate. Recommendations serve a different function. They seek to recommend that certain things are not done but that the ultimate “right” lies with the individual to choose or not to choose to follow the guideline. Recommendations may suggest normative guidelines (you should wear clothes that allow you to show your face) but do not ultimately impose normative laws. There are no consequences to an individual who does not follow a recommendation.

A recommendation could be made and disseminated as follows: “Applicants are recommended to wear to the Citizenship Oath, clothing that allows individuals and the Judge present at the Oath to visibly see them and to celebrate the important event alongside them. Individuals are permitted to wear religious clothing and are encouraged to do so in a way that is respectful to themselves and the other new Canadians who are in attendance.”

This recommendation achieves several goals. It suggests, without specifically pointing out a specific article of clothing, that what should be worn should be done […]

Jun 17, 2015

Canadian Immigration Law Blog

Counsel’s Increased Liability under the new Citizenship Act/Regulations

Many of you have may have noticed that I have been quite active in writing about the recently in-force Strengthening Canadian Citizenship Act [“SCCA”] and how it may affect Applicants. Earlier this week, I wrote this piece for New Canadian Media where I looked at good, bad, and ugly provisions of the SCCA and ultimately concluded that it’s contradictory effect on immigration policy may be more harmful than the provisions themselves.

I’ve also been looking at how the SCCA may affect the work of Counsel (which I will use interchangeably with the term Authorized Representatives) for Citizenship Applicants. In my forthcoming article in the Citizenship and Immigration Law Bulletin for Thomson-Reuters, I present a case that Counsel may be drawn into greater responsibility for tax law issues now that Social Insurance Number-sharing provisions have been introduced into the Citizenship Regulations.

In this piece, I want to look briefly at another issue which may affect Authorized Representatives as a result of the changes to the Citizenship Act and Regulations, the issue of ethical and professional liability and regulations that now allow for disclosure of wrongdoings from CIC to the regulatory body.

The Changes

As a result of amendments via the SCCA, The Citizenship Act now provides that it is illegal for an individual who is not designated as an authorized representative. to represent a Citizenship Applicant for consideration, whether this advice is direct or indirect.

18. The Act is amended by adding the following after section 21:

18. La même loi est modifiée par adjonction, après l’article 21, de ce qui suit :

Representation or advice for consideration

21.1 (1) Every person commits an offence who knowingly, directly or indirectly, represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.

21.1 (1) Commet une infraction quiconque sciemment, de façon directe ou indirecte, représente ou conseille une personne, moyennant rétribution, relativement à une demande ou à une instance prévue par la présente loi, ou offre de le faire.

Représentation ou conseil moyennant rétribution

Persons who may represent or advise		(2) Subsection (1) does not apply to
		(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
		(b) any other member in good standing of a law society of a province; or
		(c) a member in good standing of a body designated under subsection (5).

(2) Le paragraphe (1) ne s’applique pas aux personnes suivantes :		Personnes pouvant représenter ou conseiller
a) les avocats qui sont membres en règle du barreau d’une province et les notaires qui sont membres en règle de la Chambre des notaires du Québec;
b) les autres membres en règle du barreau d’une province;
c) les membres en règle d’un organisme désigné en vertu du paragraphe (5).

Students-at-law

(3) Subsection (1) does not apply to a student-at-law who offers or provides representation or advice to a person if the student-at-law is acting under the supervision of a person described in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with a proceeding or application under this Act.

(3) Il ne s’applique pas non plus au stagiaire en droit qui représente ou conseille une personne, ou qui offre de le faire, s’il agit sous la supervision d’une personne visée à l’alinéa (2)a) qui représente ou conseille une personne, ou qui offre de le faire, relativement à une demande ou à une instance prévue par la présente loi.

Stagiaires en droit

Agreement or arrangement with Her Majesty

(4) Subsection (1) does not apply to an entity, including a person acting on its behalf, that offers or provides services to assist persons in connection with an application under this Act if it is acting in accordance with an agreement or arrangement between that entity and Her Majesty in right of Canada that authorizes it to provide those services.

(4) Enfin, il ne s’applique pas à l’entité — ou à la personne agissant en son nom — qui offre ou fournit des services relativement à une demande prévue par la présente loi si elle agit conformément à un accord ou à une entente avec Sa Majesté du chef du Canada l’autorisant à fournir ces services.

Accord ou entente avec Sa Majesté

Designation by Minister

(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.

(5) Le ministre peut, par règlement, désigner un organisme dont les membres en règle peuvent représenter ou conseiller une personne, moyennant rétribution, relativement à une demande ou une instance prévue par la présente loi, ou offrir de le faire.

Désignation par le ministre

Regulations — required information

(6) The Governor in Council may make regulations requiring the designated body to provide the Minister with any information set out in the regulations, including information relating to its governance and information to assist the Minister to evaluate whether the designated body governs its members in a manner that is in the public interest so that they provide professional and ethical representation and advice.

The above-language used in the SCCA suggested that further regulations governing the conduct of authorized representatives would be introduced.

The new Citizenship Regulations now in-force (supplementing the corresponding SCCA changes to the Citizenship Act) provide those further details.

Among the Citizenship Regulations introduced are those which clarify that ICCRC-designated Immigration Consultants can advise on Citizenship for consideration. Also, there is clarification that any application where an Authorized Representative listed is not in fact authorized will result in applications being returned, unprocessed.

REPRESENTATIVES AND ADVISORS

Purposes of subsection 21.1(5) of Act

19. For the purposes of subsection 21.1(5) of the Act, the ICCRC is designated as a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the Act.

Person not authorized under subsections 21.1 (2) to (4) of Act

20. If an applicant is represented or advised for consideration in connection with a proceeding or application under the Act by a person who is not referred to in subsections 21.1 (2) to (4) of the Act the application will be returned to the applicant because it is not accepted into processing.

The new Citizenship Regulations also create that vehicle by which CIC can privately disclose to professional regulatory bodies such as the Immigration Consultants of Canada Regulatory Council (ICCRC) and provincial law societies, conduct which may raise ethical and professional concerns [emphasis added] (see full language of regulations: here).

DISCLOSURE OF INFORMATION

26.1 If the Minister determines that the conduct of a person referred to in any of paragraphs 21.1(2)(a) to (c) of the Act in connection with a proceeding — other than a proceeding before a superior court — or application under the Act is likely to constitute a breach of the person’s professional or ethical obligations, the Minister may disclose the following information about that person to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct:

(a) their name, postal address, telephone number, fax number and email address;
(b) the name of the professional body of which they are a member and their membership identification number;
(c) any information relating to that conduct, but — in the case of any information that could identify any other person — only to the extent necessary for the complete disclosure of that conduct.

Increased Risks

I believe this later provision may pose some risk to authorized representatives who advise on Citizenship.

For example, the ICCRC Code of Professional Conduct (here) contains several provisions regarding competency and quality of service. I don’t see anything preventing Citizenship and Immigration Canada (CIC) from disclosing to ICCRC poorly or incompetently filed applications or where a representative has failed to meet deadlines or Citizenship Act requirements. This could ultimately be used against the Authorized Representative, either if the regulatory body or an upset client decides to raise a complaint against the Authorized Representative.

What makes this challenging is that CIC ultimately stand on opposite sides of the coin when it comes to assessing an application. I’ve read of numerous occasions in case law where counsel for the Applicant takes a perfectly legal, but highly risky approach, on a file and CIC has taken a position against the strategy or approach is abusive or frivolous. The line between […]

Jun 14, 2015

Law Student Advice and Mentorship

Excerpt from My Law School Personal Statement Back in 2010/11

personal statement

A lot of individuals and friends of mine have now completed their LSATs and are in that second part of the battle, putting together a law school application.

I thought it would be useful to put to and excerpt of what I wrote back in the day. I’m lucky and fortunate to be able to live out the words I wrote below:

On a sweltering summer day in 2007, I was assigned to be the clinic assistant for a low income African immigrant named Naomi. She had spent the past six months suffering from severe back pain and was unable to work as a result of the Plaintiff’s reckless driving. At the time of the accident, the plaintiff had been apologetic, leading Naomi to feel compassionate and not pursue further action. A recent immigrant from Africa, she was also unaware of her legal recourse.

Hearing her story, both on the phone and in person I was reminded of my own father, who arrived in Canada at 26, a doctor from Shanghai, similarly compassionate, but unaware of the struggle for recognition he would face. Walking an exhausted Naomi to the lawyer’s downtown firm, I was reminded me of my own mother, struggling to bring the weekly vegetables up the hill. Without the vegetables, there would be no dinner for the wealthy diplomats who offered my family free rent in exchange for three cooked meals a day.

Perceiving me to be a paralegal, Naomi praised me for my earlier efforts and asked me countless questions in hopes of gaining my advice. As much as I wanted to provide my own advice, I knew that my volunteer position required me to be merely a listener and a recorder of relevant detail. Inside, however, I knew that I had to continue my commitment to studying immigration. I also decided that day that I would become a lawyer, to help those like Naomi and my parents.

As a side note, it is imprudent to send the same personal statement to every single law school in the country. Consider it the same as if you were to send the same cover letter to every single employer in the country just because they offer the same position.

Jun 14, 2015

Canadian Immigration Law Blog

Guest Post: “Marouf” by Abigail Cheung

I’m proud to feature today the guest post of a friend of mine and soon-to-be lawyer extraordinaire, Ms. Abigail Cheung. Abigail has a long-standing interest in immigration law, and I am sure will continue to be very active both from a legal and policy perspective for years to come. Currently, Abigail is a Summer Articled Student at one of Canada’s top law firms based out of it’s Vancouver office.

In this piece, Abigail talks about her work in U.S. Immigration Law and at an Immigration Law Clinic while she was an undergraduate student at Yale University.

Kabul does not have mailing addresses the way other cities do. So imagine my surprise when I received a response to a letter I’d sent to the address “opposite the Dutch Embassy, Kabul,” a week after mailing it from the US to Afghanistan. Even more incredible than the package’s arrival were its contents: three intifadas handwritten by members of the Taliban. I know these things because, in my third year of university, I met Marouf.

Although I had taken a course on US Immigration Law before participating in a clinic called Immigration Legal Services at Yale Law School, no amount of training could have prepared my partner or me for the man we would come to know intimately over the next four months. The first time we interviewed Marouf, Scarlet and I were nervous, but Marouf was positively skittish. It quickly became apparent that the questions we had prepared weren’t altogether appropriate. Before us was a man who told us he had been kidnapped and tortured and had left everyone and everything he knew behind because people had threatened to kill him. And here we were, wanting to know details like how long Marouf had lived in a refugee camp, and whether or not he had a graduation certificate from the school he’d attended there to prove that.

Sometimes, Marouf would get frustrated. Why were we asking prying questions about his family members’ lives? Why were we asking him to delve into memories he had tried to forget? Sometimes, we would get frustrated. Marouf told us his story one way; the next time we met, his story, or its chronology, had changed. Was it possible, we wondered, for someone to forget how many times his kidnapper had beaten him? Could one fail to remember the contents of a personalized death threat?

For months, we worked feverishly. We made timelines and checklists. We found translators who helped us maneuver between Farsi and Dari. We perused country of origin information, sought out expert testimony and outlined the basis for Marouf’s claim. Four months later, we had a comprehensive story.

Over the course of our interviews, I noticed changes in Marouf. Scarlet and I worked on building trust with Marouf until he was willing to volunteer information without prompting. Initially afraid of the dark, Marouf eventually overcame his fear and even drove to one of our interviews at night. Gradually, Marouf opened up and excitedly told us about his brothers, sister and nephew.

Marouf also changed me. When you realize that failing to complete your homework to the highest standards could result in your client’s deportation and potential death, you develop a new type of work ethic. When someone calls you on a Friday night to ask you if committing suicide might protect his family members from danger, you gain a new level of compassion. When someone explains what it’s like to have handwritten death threats posted on his family home’s door on three separate occasions, war takes on new meaning.

Marouf attended his immigration hearing in December 2010. One month later, Marouf was granted asylum.

After meeting Marouf, it was hard not to think about war and migration in human terms. The summer after I met Marouf, I met a Rwandan who ran a computer shop in South Tel Aviv. A long, framed photo of men dressed in traditional costume and their cattle hung over the store’s entrance. After he caught me looking at it, Sentwali invited me to sit down. He explained that it was his only picture of him in his hometown, which had since been razed to the ground. Two years ago, I met an Eritrean woman in Hong Kong. During one of our interviews, she rolled up her sleeves to show me scars she had had gotten from having been tied to a tree and left under the baking sun for hours—punishment for being a Copt in a country that didn’t recognize the religious sect.

Several years after first meeting Marouf, I am no longer satisfied with listening to immigrants’ stories; I’m determined to change them. A few months ago, I attended a rally in downtown Toronto where participants spoke out against the governments changes to live-in caregivers’ pathway to permanent residency. My hope is that by speaking up, we can make sure immigrants’ stories are not just stories on a page.

Jun 13, 2015

Canadian Immigration Law Blog

Cultural Challenges at the IAD

Two weeks ago, I attended a very interesting workshop held at the Law Courts Centre discussing the issue of how issues around ethnic diversity and race may affect the overall judgment of a legal decision-maker. Given that the speakers were a current judge and a former judge (now lawyer), I expected a very cautious discussion. I was surprised to find that both admitted there were significant cultural competency challenges facing decision-makers, particularly around such things as cultural traditions (re: marriages and families) as well as the importance of effective interpretation/intepreters.

The Use of Interpreters

I recently had the privilege of sitting in on an Immigration Appeal Division (IAD) spousal appeal where I witnessed interpreting challenges in practice. The interpreter admitted at the forefront that there were dialect issues and in general was having difficulty keeping up with the fast pace of the witness (who was testifying by phone). The decision-maker was noticeably irritated by the witnesses inability to be concise and cooperate with the interpreter. Cantonese for many who do not speak it comes off very fast and harsh (even to someone who speaks mandarin like myself). The Member at the hearing was noticeably unamused by the tone of the witness.

At the workshop, the judges both recommended that if the witness is able to speak English they should use that as the language of testimony. I completely agree. The individual used (particularly in immigration hearings) is not a professional certified interpreter. Furthermore, many terms and human emotions simply do not pass through interpretation. I believe that the credibility of the witness is is inevitably weakened and definitely not aided.

Mental Illness

Another cultural challenge that I have seen in several IAD cases (a few that have led to Judicial Reviews) is the issue of mental illness and disability. In the West, we have a very advanced view of mental illness and disability compared to many countries of the world. While undoubtedly stigma and prejudice still exist, parents generally know from an early age from their family doctors and educators what the child suffers from and what type of treatment options are available.

In much of the world this is not true. Mental illness is not well-studied nor understood and it is often not an issue that families enjoy discussing at the dinner table. Rather than relating to the specific name of the disease, the Chinese name for many of these illnesses is simply the blanket term “mental illness” or “personality illness.”

Consequentially, I have seen quite a few cases where family members and spouses were unaware of the diagnosis of the mentally-ill/disabled individual and only able to describe several of the key effects (i.e lower IQ, trouble functioning in public, etc.). These factors were later turned around and used as signs that the underlying relationship (in the immigration context) was non-genuine and therefore excluded the family relationship and rejected the appeal.

I think decision-makers, particularly at the IAD stage need to be very aware of the different cultural stigmas around mental health and how lack of knowledge of diseases may not necessarily be a sign of a non-credible witness or a non-genuine relationship.

The ‘I Love You’ Factor

Another issue that I have seen arise in the IAD is in the assessment of the types of actions which demonstrate love.

Perhaps to the archaic nature of case law in the area, the genuineness of a relationships is still defined in large part on things such as telephone records and love letters. Importantly, the relationships must be centred around love and the need for proof of the “I love you’s.”

In the modern day however, this evidence of genuineness may not always be true. Several couples use Whatsapp, Skype, or some cultural chat software (QQ, Kakao Talk, WeChat) to communicate. Many of these platforms do not allow for message histories to be effectively kept and furthermore some of the sending of media images back and forth and video chats, and conversations in foreign languages, are not readily transcrible. In one IAD refusal decision I read, the sending of media back and forth between a couple was described as “illogical.” The individual Member had likely never used Whatsapp before.

A second challenge that bogs many foreign couples (particularly older ones), I find, is the actual use of the words “I love you” in various contexts. Even in my own parent’s generation, the words I love you are rarely ever said or heard around the house. If asked why they are together or attracted to each other, I am sure my parents would come up with issues related around responsibility, similar view on household chores/economics, etc.

I think it is important to be sensitive to the way love is expressed in different cultures and not draw negative inferences based on different understandings.

Just a few thoughts on this Sunny Sunday in Chongqing, China.

Jun 13, 2015

Canadian Immigration Law Blog

Canadian Film or Video Production Tax Credit and Canadian Immigration (Part 2)

Introduction

In this section, I will look at the Canadian Film and Video Production Tax Credit’s (CPTC) provisions around Key Creative Personnel and why, consequentially, Telefilm Treaty Co-Production Agreements are desirable from an immigration perspective.

Telefilm Treaty Co-Production Agreements

The first stage in determining whether the Key Creative Personnel are met is to determine what type of production is in question. the CPTC Guideline sets out two different types, Live Action Productions and Animation Productions, each with their own set of scoring rules.

For a Live Action Production the following positions are considered for a maximum of 10 points. To qualify, one of two of the director positions and one of two of the lead performer positions must be filled by a Canadian.

Director – 2 points
Screenwriter (see s.4.06) – 2 points
Lead performer for whose services the highest remuneration was payable (see s.4.05) – 1 point
Lead performer for whose services the second highest remuneration was payable – 1 point
Director of photography – 1 point
Art director – 1 point
Music composer (see s.4.07) – 1 point
Picture editor – 1 points

For a Animation Production the points are as follows:

Director – 1 point
Screenwriter and storyboard supervisor (see s.4.06) – 1 point
Lead voice for which the highest or second highest remuneration was payable (see s.4.05) – 1 point
Design supervisor (art director) – 1 point
Camera operator (in Canada) – 1 point
Music composer (see s.4.07) – 1 point
Picture editor – 1 point
The following points will be allotted if the work is performed solely in Canada.
Layout and background – 1 point
Key animation (must be in Canada) – 1 point
Assistant animation and in-betweening – 1 point

With respect to Animation Productions, there are some additional requirements. Either the director or the screenwriter and supervisor must be Canadian. Either the highest or second-highest remunerated lead voice must be Canadian, and all key animation must be done in Canada.

There are also several general rules that apply to all types of Key Creative Personnel. Among the general rules are several important for immigration purposes. No points are to be awarded for Canadians who share key personnel roles for other non-Canadians. Also, the camera operator role for Animated Productions must conduct his work in Canada. Also, scoring on a collection of films or a series of films must be done individually and the production company should make a separate list of individuals who worked on each production.

Why are Telefilm Treaty Co-Productions So Valuable from an Immigration Perspective?

Canada has currently 55 Co-Production Agreements and Memorandum of Understandings with several countries. The full list can be found here.

The benefit of a Treaty Co-Production Agreement is that pursuant to the CPTC Program Eligibility Requirements, these films operate under the specific Treaty Co-Production Agreement rather than the CPTC Guidelines with respect to the Key Creative Personnel and Producer-Related Personnel. The CPTC Guidelines regarding the Key Creative Personnel point system and the rules surrounding production-related personnel need not apply.

The language in these agreements is generally much more favourable than the CPTC Guidelines. For example, in the 2014 Audiovisual Co-Production Agreement Between the Government of Canada and the Government of the Republic of India ( the “India Agreement), Articles 3 and 5 provide that producers and participants can be a national of one of the parties and that through mutual consent in writing by administrative authorities, can also include third countries.

The India Agreement also provides in Article 6 that the Parties shall facilitate temporary entry and residence in the respective territories for creative and technical personnel and performers.

Importantly, one of the countries that does not have a Treaty Co-Production Agreement with Canada is the United States. One of the areas I will be researching into in the future (possibly through ATI requests) is how American film productions, through filming in Canada, partnering with local production companies, and utilizing Canadian actors in key lead roles have been able to take advantage of the CPTC tax credit.

Hope you enjoyed the post 🙂

Jun 12, 2015

Canadian Immigration Law Blog

New Express Entry Italian Page, Immigration Resources, and the Importance of Optics

On June 12, 2015, Canada’s National Defence Minister Julio Fantino on behalf of Canada’s immigration minister, Chris Alexander announced the creation of a new Italian-language resource to help promote Italian immigration to Canada via Canada’s online processing system for economic immigration, Express Entry. The news release can be found here.

I think that recognition by the Federal Government of the imbalance of immigration from certain parts of the world is a good thing. More Italian immigrants to Canada, where many of our top politicians, athletes, and businesspeople have Italian roots is also a fundamentally good thing.

I also think providing resources in languages outside of Canada’s two national languages is fundamental and crucial to attracting top-class immigrants. Before an applicant goes off to taking language exams in one of the two languages, they often times (and many years prior to actually landing in Canada) have to decide to begin the very process of pursuing permanent residence. Without access to resources in the native language of Applicants, it is ripe for individuals who purport to know what they are doing (ghost consultants and the like) to provide immigration services. Many of these services are substandard and ultimately illegally performed.

My major qualm with the Federal Government’s launch of an Express Entry Italian page is that I believe it is not good optics to have resources available in one language and not other languages. With something like the Express Entry Italian page I understand that it is not as simple as creating a page and paying interpreters to translate the resource into many languages. There are discussions that need to be had with consulates, even with domestic governments who do (particularly in the case of China, the country I am now in) the type of web resources available on sensitive issues such as immigration.

However, to provide a page in Italian that is not correspondingly available in Arabic, in Farsi, in Hindu, or in Mandarin suggests Canada is aiming its resources at immigrants from select countries rather than the most economically and socially desirable immigrants from around the world. Optically, I hope many more third-language resources are made available to explain an Express Entry system that frankly is counterintuitive and confusing for many overseas applicants.

Jun 7, 2015

Uncategorized

A Day One Problem: Post-Graduate Work Permit to Permanent Resident

In December 2014, my colleague Steve Meurrens predicted that the introduction of Express Entry would have a devastating effect on the ability of international students to obtain Permanent Resident status in Canada (see: http://canadianimmigrant.ca/slider/are-options-for-international-students-to-immigrate-permanently-narrowing).

It seems like Steve’s epiphanies have come true. Just this past month I have received no less than 5 inquiries from individuals on the last year of Post-Graduate Work Permits (PGWP) asking about how they can obtain Permanent Resident status.

The challenges are quite clear. Time spent working on PGWPs, while earning some Canadian experience points, do not earn any extra points that appear necessary to obtain an Invitation to Apply. Individuals with PGWPs will have to not only meet the requirements of the Canadian Experience Class or Federal Skilled Worker Programs (at least 1 year of NOC 0, A, B experience), but also likely need either a Provincial Nomination or a Labour Market Impact Assessment.

The Labour Market Impact Assessment, which used to allow for advertising breaks for Employers hiring PGWP holders, now requires a $1000 application fee in addition to the 1 in 4 likelihood of a compliance review. Such burdens are heavy for Canadian employers to bare, particularly when the international graduate is likely entering only a mid-level NOC B position. Furthermore, the advertising exemptions have been removed and Canadian Employers must demonstrate that the PGWP holder is more suitable than Canadian candidates who have many more years of relevant experience and often times higher educational credentials. It is also hard, to make a business case, to pay someone with little experience a prevailing wage that reflects a skilled labour market generally with more experience and demanding hire wages.

One of the biggest problems facing PGWP holders is actually on the front end. Many recent graduates are unable to obtain positions right out of university that are NOC 0, A, B. Many start in NOC C, D positions (often unaware) that there is a requirement to obtain a promotion in order to qualify for Express Entry. Couple this with the fact that options for Entry-Level/Semi-Skilled (EE/SS) workers to obtain Permanent Residence (at least in B.C.) is limited to the currently-closed B.C. Provincial Nomination Program for EE/SS workers.

The Importance of Employer Communication Re: PGWP Status

One of the challenges is that many employees are hesitant to get into the conversation with their employers about their immigration status for fear of job security and other issues. However, this conversation needs to happen and ideally happen at the front end. Unless, it is in an Applicant’s plan to return to their home country following work on a PGWP, continue further studies, or pursue another guaranteed NOC 0, A,B vacancy within two years, not discussing immigration status with an employer can be disastrous. Currently, Canada’s economic immigration programs are all employer driven. If you are to obtain permanent residence in the future an Employer needs to be there to support you – write you a confirmation of employment, make recruitment efforts, provide your paystubs and their own tax/corporate information. Most importantly, they have to put their neck on the line in representations to Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).

Your pathway to permanent residence starts on Day 1. Your employment contract or at the very least, your unofficial understanding with the employer needs to involve your ability to be promoted to a NOC 0, A, B position so you can get at least 1 year of skilled-work experience.

You can check the skill level of your position using the NOC matrix available online. Note that the BC PNP uses the 2011 NOC Matrix (here), which ESDC uses the 2006 NOC Matrix (here) Make sure, however, to obtain proper advice as to the wording of your job duties. Several positions, particularly those designated by Canadian employers who are unfamiliar with the NOC or your requirements to have skilled employment, may inadvertently hire you to a purported “skilled position,” while giving you job duties more akin to a lower-skilled worker. For example, one may assume that an administrative assistant (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=1&val1=1241) and an office support worker (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/ProfileQuickSearch.aspx?val=1&val1=1411) would both be considered under the same NOC Code given the similar nature of their duties, but an administrative assistant is a NOC B position (thus qualifying for Express Entry) while an Office Support Worker isn’t (NOC C low skilled position).

It is furthermore important to broach your Canadian employer because of the number of hybrid positions that are subject to classification under lower NOCs by ESDC. A great example of this is in the banking industry where a Customer Service Representative is a NOC C position (http://www23.statcan.gc.ca/imdb/p3VD.pl?Function=getVD&TVD=122372&CVD=122376&CPV=6551&CST=01012011&CLV=4&MLV=4) but a Financial Service Representation is a NOC B position (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=6&val1=6235).

There is arguably a ton of overlap between the two positions and a ton of Customer Service Representatives I know who are gaining in seniority begin to take on some of the responsibilities of Financial Service Representatives. Complicating things, I know some banks call their Customer Service Representatives, Financial Service Representatives.

Another complicated matter are individuals who take on hybrid Account Manager (NOC B) and CSR (NOC C) roles. For immigration purposes, these type of positions will be under heavy scrutiny.

Know your Provincial Nomination Programs

Until the non-Express Entry British Columbia – International Graduates Program is announced in the beginning of July, the Express Entry version is a very good option for applicants (http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Express-Entry-British-Columbia/Express-Entry-British-Columbia-International-Gradu.aspx). Again, one of the challenges is the Applicant has to meet the basic requirements for one of three economic programs – which will require one year of NOC 0, A, B, either prior to coming to Canada and while holding a PGWP. As the International Graduates program requires you to apply within two years of completing your education program, this essentially gives you a two year window to get the requisite experience (assuming you don’t have it).

The International Graduates program is nice because there is no need for previous experience. The Applicant must only demonstrate that they have the means to support yourself and your dependents. For the Skilled Worker program, there is the requirement of several years of work experience, which is usually assumed to be two or more, creating a major time crunch for transitioning from a PGWP.

Regardless, it is important to keep up with the rapidly changing PNP program offerings. For example, on July 1st the BC PNP is reopening several programs, which I forsee may create more options for graduates of particular programs in professions that B.C. views in high demand (possibly LNG, Tech, and Medical fields).

I hope this article provided some insight into the challenges. As always contact me if you have any questions!

Jun 4, 2015

First Year as a First Year - Personal Reflections

“If You Build It, He Will Come” – Week 1

In “Field of Dreams,” the main character Kevin Costner is in the middle of the cornfields when he hears a voice that keeps saying: “If You Built It, He Will Come.”

In my first week as an associate, I feel the exact same way. I need to build a foundation. A solid foundation. It won’t always be a perfect foundation but it has to be one that people can rely on. It won’t happen today or tomorrow, but each incremental step – each successful client file, each hours spent on researching an area of the law, will go a long way.

My father told me a story. One that I also saw Ferran Adria (one of the greatest chef’s of our generation tell) also tell.

When he was doing acupuncture back in the day in Victoria, there were days when nobody would show up to the shop. They’d sit there. Worrying about how to get the next payment to pay the bills.

I have it a lot better and that I should be grateful for. I have a shelter, I have food, I have savings. I have great mentors and individuals who refer me files. But, I have to have patience above all else.

There’s two types of clients who generally consult counsel for immigration. Those who really need good work done for fear of damage to their businesses reputation or their families lives. They could be in a huge hole facing removal from Canada or separation from a loved one. These individuals will only trust and work with the best, most competent lawyers, as they should.

The second group of clients want the quick solution. They demand expediency and they are cost-sensitive. They are the most likely to choose counsel based on price-point and often do select inexperienced counsel simply because they found an ad in a newspaper.

Note: There’s an important third group and a group I care very passionately about. Those who need counsel but can’t afford it. That will be a post for another day. I’ll try and walk you through one of my Access Pro Bono sessions.

As a young lawyer, you aren’t the senior lawyer. You aren’t even the cheap lawyer. My job simply, at this stage, is to be the reliable lawyer. The one client’s can connect with, can trust, and feel like every service fee payment is deserved. It is about not overselling nor underselling my abilities. Even as a lawyer, I am a student of the law and I always will be.

On that note, this week has been a learning experience, but a very good one. As a student, you have people feeding you work and watching your every step. Training wheels. You feel obligated to put in X hours a day to justify your job.

In my position now, I have the ability to control my own schedule, the freedom to take on my own files, but also an responsibility to my Firm, to myself, and most wholeheartedly, to my future clients.

Next week I go to China for a little zen time. I have a girlfriend there I haven’t seen in three months and have seen all of three weeks in the last year. Battle scars.

When I come back, I will need to hit a next gear. I’m in a city with a struggling economy, at a time when immigration laws are uncertain and clients need the advice desperately.

I will try and do a few updates to this particular blog in China, as I read and learn more about the key issues in Canadian immigration law. Until I get to Chongqing… thanks to those who make this story possible.

Jun 4, 2015

Canadian Immigration Law Blog

Opinion: If Canadian Investor Immigrant’s Funds are Already Being Put “At-Risk”, We Might as Well Fund Social Projects

Without mincing work, it is clear from the opening, closing, reopening, and extension of Canada’s Investor Immigrant Venture Capital Program (IIVCP) that the program has been, currently is, and most likely will be a flop.

I have assisted several colleagues in writing pieces on the IIVCP and as optimistic as we have tried to make it sound in each piece, the front end program requirements are simply unattainable for most and undesirable for almost all who want to immigrate by investment.

Perhaps even worse is the back-end design of the IIVCP. I have had conversations with several seasoned investors about this program. The actual monetary value of the program does not bother them as much as the complete inability to direct any positive outcome from the program.

From what the instructions and legal requirements seem to set out, it is simply $2 million passed from the Investor Immigrant to CIC who passes it on to the Business Development Bank of Canada (BDC) who lets you know in 15 years whether you are entitled to any ROI.

The seasoned investors I have talked to want to be able to know whether their investments are being pooled or separately managed, whether they will be used to invest only in profitable companies or arbitrarily divided among all companies in the funds, hoping for one gold mine to pan out.

If we’re already going at risk, we might as well gain some social rewards

From a personal perspective, I have never been a fan of a purely passive investor immigration program. I completely agree with the Government’s shutdown of the old model, one that saw a lot of individuals and institutions make a lot of money, none of which was really reinvested into the Canadian economy and arguably has created political and social divisions in cities such as Vancouver.

I also am wary of the flip-side of the debate. Investor immigration is not economic immigration, and is separate from most of the entrepreneurial programs run through various PNPs. We cannot create a program that is so heavy on requirements for investors to meet, so much so that they feel so burdened and do not want to participate.

Unfortunately, rather than striking the fine balance between passive and active, we have the worst possible balance of active requirements on the front end and a passive process of the back end.

I think the right balance of passive and active is ultimately in the social beneficial outcomes an investor immigration program can produce. At a time when social funding for the arts, music, social housing, legal aid, adequate statistics, is at a low, here you have a group of investor immigrants who are willing to assist these groups and meanwhile gain some sort of tangible benefit.

This is not a novel concept – the United States EB-5 has element of socially-beneficial investment. Austria has the option of Citizenship through a $2million dollar charity donation [extreme], and Antigua offers a donation to one of the sugar-cane industry labour groups.

So What are You Proposing – Social Capital Immigrant Investor Program (SCIIP)

I don’t believe in tying investor immigrants up in the IIVCP. There’s a Start-Up Visa program picking up steam that adequately facilitates individuals who want to go that venture capital route.

I am proposing that we switch the IIVCP to the SCIIP. The Federal Government (working with its Provincial and Municipal counterparts) can set up a fund or projects designated for socially beneficial purposes.

The investment will be completely at risk (you can make it the same $2 million or go down to $1 million), regardless you are donating money to a good cause to get a PR. You are doing this much like you donate money at the door of a charity event in order to be able to enter and mingle with the guests.

Aside from the feel good nature of having helped an important cause, the amount of the investment can also returned if certain tasks are accomplished within a, let’s say, five year window. For example, if the Applicant starts up a non-profit charity, the amount raised by that charity can be partially deducted from the total amount. Alternatively, it the Applicant starts up a for-profit business, the number of Canadian jobs created can factor in to some sort of a return on initial investment.

This type of passive/active mix would work. You have the option to stay passive – pay your money and help someone while getting PR, or you can be active, pay your money and bring more benefit in the process of trying to earn a return on your PR.

I think it’s very much time we investigate these alternative options. When I studied the Labour-Sponsored Venture Capital Corporation Tax Credit in law school last year, one of our key findings was that mixing private-equity and government-supported equity may in fact crowd out, rather than promote further private investment.

Just my two cents on this matter.

Jun 4, 2015

Canadian Immigration Law Blog

Breaking down the Bridge – Open Bridging Work Permit

Two weeks ago, CIC introduced clarified instructions on when an Open Bridging Work Permit would be issued with respect to economic class applicants (see: http://www.cic.gc.ca/english/resources/tools/temp/work/prov/bridging.asp).

The parameters are as follows:

1) They are currently in Canada;

2) They have valid status on a work permit that is due to expire in four months or less;

3) They are the principal applicant on application for permanent residence under the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Worker Class, and the Provincial Nominee Class;

4) They have received a positive eligibility assessment on their permanent residence application under one of the Economic Class programs above;

5) They have applied for an open work permit; and

6) They have paid the required fees for the work permit and Open Work Permit holder fee;

It is equally important to look at some of the individuals who are not qualified to apply for a brdiging open work permit

1) Foreign Nationals (FNs) who are Work Permit-exempt Business Visitors;

2) FNs whose status has expired and must apply for a Restoration of their Temporary Resident Status;

3) FNs whose work Permits that expire in more than four months or if there is a new LMIA that can be used as the basis of the work permit application;

4) FNs who are applying for a bridging work permit at the Port of Entry;

5) Spouses and Dependants of PR Applicant -although they may be eligible for an open work permit but this on a separate basis, R205(c)ii) of IRPA, C41 (see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/policy.asp)

6. Provincial Nominees who have not submitted a copy of their nomination letter in an briding work permit application or their nomination letter indicates employment restrictions.

Acknowledgement of Receipt from CIO

The eligibility trigger for FSWC, PNP, and CEC applications is the change of Eligibility status in GCMS or, and Applicants will likely find out this way, through the receipt of an Acknowledgment of Receipt from CIC – CIO.

Express Entry

Express Entry is more peculiar in that there are two Acknowledgement of Receipt letters. The first, when you submit your electronic Application for Permanent Residence does not qualify for the purposes of applying for the Bridging Work Permit. You must wait until your application is considered complete pursuant to s.10 and s.12.01 of IRPR. Atrt this time you will receive an official Acknowledgment of Receipt indicating that the letter may used to support a BOWP.

Employment Restrictions

For Provincial Nominees, it is crucial to review the Nomination Letter prior to submitting this application. There may be an Employer indicated, a NOC indicated, but the key box to consider is whether there are employment restrictions, a separate box located on current nomination letters.

Term of Issuance

Based on the instructions, it appears that these are being issued for 12 months, with further extensions to stay on an open work permit considered on a case-by-case basis.

Jun 4, 2015

Canadian Immigration Law Blog

Express Entry Technical Amendment: You Can Get Scores for Non-Continuous Canadian Work Experience

Human Resources concept

Citizenship and Immigration Canada (CIC) has made several technical amendments which came in force May 30, 2015. These amendments are a welcome clarification and should assist those applicants with several years of Canadian work experience. Ultimately, it may give several applicants a big Comprehensive Ranking System (CRS) Score point boost!

Per CIC (http://www.cic.gc.ca/english/department/mi/express-entry.asp) [emphasis added]:

DEPARTMENT OF CITIZENSHIP AND IMMIGRATION

Notice: A technical amendment has been made to sections 15, 19 and 25 of the Ministerial Instructions for the Express Entry Application Management System.

Paragraphs 15(3)(b) and 19(4)(b) were modified to remove the requirement that Canadian work experience be continuous for determining points under the Comprehensive Ranking System for the candidate, spouse or common-law partner.

For consistency and clarity, the Ministerial Instructions were also modified as follows:

The term “with one or more employers” was added to paragraphs 15(3)(b), 19(4)(b) and 25(1)(b);

The term “full-time employment” in subsections 15(5), 19(6) and 25(3) was replaced by “full-time work;”

Subsection 19(3) was repealed; and,

The word “emploi” in subsections 15(6), 19(7) and 25(4) and paragraphs 15(7)(a) and 19(8)(a) of the French version of the Ministerial Instructions was replaced by “travail.”

These Instructions come into force on May 30, 2015.

Note: As of May 30, 2015, all valid Canadian work experience will be recognized under the Comprehensive Ranking System (CRS) of Express Entry as CIC is removing the requirement that Canadian work experience be continuous. As a result, foreign nationals with Canadian work experience could see an increase in their CRS points.

You can see a specific effort by CIC to address the challenges particularly faced by the increasing number of contractors (explaining the change in definition from employment to work) as several were negatively impacted by the continuous work experience.

If I am not mistaken, the challenge with continuous work got to the point where program officers at the latest CBA National Immigration Law Conference in Ottawa were recommending that Counsel fill in the gaps of employment (much in the way we do 10 year work history attachments) with explanations. Again, whether this is acceptable practice is not readily clear from the way the electronic form is formatted.

Do note:

Continuous, skilled (NOC O, A, B) work experience of:

at least 1 year (Canadian work experience) in the last 3 years for the Canadian Experience Class;
and 1 year (can be Canadian or Foreign work experience) in the last 10 years for the Federal Skilled Worker Program;

are still front end requirements to qualify for Express Entry and are not affected by these technical amendments.

Jun 3, 2015

Canadian Immigration Law Blog

Canadian Film or Video Production Tax Credit and Canadian Immigration (Part 1)

The intersections between entertainment law and immigration law has traditionally been a front-end discussion. Which type of entertainers can come in without a work permit? Which will require one? Are there any LMIA-exemptions?

Very little attention has been paid to the back-end, long-term benefit of having a Canadian permanent resident or Citizen involved in the production of a film. There is a benefit. That benefit is a refundable 25% tax credit for utilizing Canadians.

I will try to do this topic justice here in a series of posts.

Part 1 will provide an overview of the CPTC tax credit, review the general eligiblity guidelines relating to immigration, and highlight the “Canadian” Requirements for both Film Production and Distribution companies as well as Producer-Related Personnel.
Part 2 will look specifically at Creative Key Personnel, and why you may see so many films filmed in Canada with Canadian actors and directors. It will also look at some the key exceptions.
Part 3 will look at Joint Productions and how some of Canada’s Telefilm Co-Production Agreements can be implemented in an immigration savy way. I will also wrap up on some potential Canadian Immigration related strategies.

What is the CPTC?

The Canadian Film or Video Production Tax Credit (CPTC) is fully refundable tax credit, available at a rate of 25 percent of the qualified labour expenditure of an eligible production. The CPTC is jointly administered by the Canadian Audio-Visual Certification Office (CAVCO) and the Canada Revenue Agency. (see: http://www.pch.gc.ca/eng/1268752355851)

General Guidelines

In the CPTC Guidelines (the “Guidelines”) there is a list of 11 requirements in order to meet the program eligibility. Several of these criteria touch upon the importance of ensuring certain key individuals and entities are Canadian. I will address only the ones relevant to immigration. The Guidelines state (emphasis added):

All producer-related personnel (other than those receiving exemptions permitted in limited circumstances) must be Canadian. For productions involving non-Canadian development, financing or distribution, the producer should read s. 4.09 and s. 4.10 thoroughly before entering into any agreements with non-Canadians.
Not less than 75% of the total of all costs for services provided toward producing the production (other than excluded costs) must be payable for services provided to or by individuals who are Canadians, and not less than 75% of the total of all costs incurred for the post-production must be incurred for services provided in Canada. (s. 5.06)*

I will analyze s.4.09 and s.4.10 in Part 2 of my series on this topic.

“Canadian” production company and distribution company requirements

The guide goes on to discuss the requirement for the CPTC applicant production company and the Canadian distribution company to be Canadian (emphasis added):

To qualify for the CPTC, the applicant production company, and if applicable, the Canadian distribution company through which it will distribute the production in Canada, must be owned and controlled, either directly or indirectly, by Canadian citizens or permanent residents in accordance with definitions found in a combination of the Citizenship Act, the Immigration and Refugee Protection Act (which replaces the Immigration Act) and the Investment Canada Act (ICA). This requirement is set out in subsection 1106(1) of the Regulations of the Income Tax Act.

By virtue of s. 1106 of the Income Tax Regulations, CAVCO must determine, among other things, whether a corporation’s shareholders are “Canadian” within the meaning of s. 3 of the ICA. According to the ICA, Canadian means (emphasis added in original and in analysis):

A Canadian citizen;

A permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, who has been ordinarily resident in Canada for not more than one year after the time at which he or she first became eligible to apply for Canadian citizenship;

A Canadian government, whether federal, provincial or local, or an agency thereof; or

An entity that is Canadian-controlled, as determined under subsection 26(1) or (2) and for which there has been no determination made under subsection 26(2.1) or (2.11) or declaration made under subsection 26 (2.2).

For greater clarity, an individual is “Canadian” for the purpose of determining Canadian control of a corporation if it can be established that he or she is:

A Canadian citizen; or

A permanent resident, within the meaning of subsection 2(1) the Immigration and Refugee Protection Act, who i) is ordinarily resident* in Canada and ii) is not eligible to apply for Canadian citizenship or has not been eligible to apply for Canadian citizenship for more than one year.

*To be considered “ordinarily resident” in Canada, an individual must demonstrate that he or she has taken residence in Canada in his or her usual day-to-day routine.

As you can see, the CAVCO/ICA definition of Canadian in respect of permanent residents is stricter than the definition provided in IRPA. The individual not only must be a permanent resident but also one who is ordinarily resident (by definition essentially lives in Canada) and as well cannot have been eligible for Citizenship for more than one year at which time they have did not applied to obtain Citizenship status.

“Canadian” Production-Personnel Requirements

To further complicate things, a different definition of Canadian from the Investment Canada Act is applied when determining whether the producer-related personnel is Canadian.

It is written (emphasis added):

Production Personnel

4.01 Proof of Canadian Citizenship or Permanent Residency

4.01.1 Requirements

Other than where a production is a treaty co-production, a production company must provide proof that individuals for whom key creative points are being requested, as well as individuals occupying producer-related positions, are Canadian. With respect to producer-related or key creative personnel for a production, the term “Canadian” is defined as a person who is, at all relevant times, a Canadian citizen as defined in the Citizenship Act, or a permanent resident as defined in the Immigration and Refugee Protection Act. The person must be Canadian during the entire time he or she performs any duties in relation to the production.

The CPTC Guidelines do not specify or clarify what “during the entire time he or she performs any duties in relation to the production.” However, the Canada Radio-Television and Telecommunications Commission in their guide (see: http://www.crtc.gc.ca/canrec/eng/guide2.htm) to their own “Canadian content” certification and application process provides guidance that is likely cross-applicable. The CRTC guide states (emphasis added):

Canadian at all relevant times means that an individual must be Canadian at the time he or she begins his or her duties in relation to the production and during the entire course of the filming or taping and post-production. An individual cannot acquire permanent resident status in order to qualify as Canadian at any point during a production; such status must be confirmed before the individual begins engaging in any activity related to the production. An individual acquiring permanent resident status after he or she begins engaging in any activity related to the production will be considered a non-Canadian for the entire production. Likewise a corporation must be a Canadian-controlled corporation during the same time period.

Therefore it is important that applicants confirm the status of each person who will occupy a key creative position before the person begins engaging in any activity related to the production.

This issue is one that I will believe will be at the crux of where an immigration lawyer can add value. “Activity related to the production” seems very broad reaching, particularly where in the entertainment field there is a lot of cross-collaboration and sharing between film projects and also a very short transition (one day) between temporary residence and permanent residence.

Reading the above, it appears that it will be very important for Production Companies to keep a very good record of each production personnel’s start dates, along with their immigration status throughout the film production process. This along with important dates such as permanent residency card expiry dates, as expired PR cards will trigger the need to reapply to CAVCO to obtain a new personnel number (more on this in my next post!).

In part two, I will get to the fun stuff. A film (live production and animated) has several key creative personnel – directors, lead actors – what are the rules for them? How many need to be “Canadian” to qualify for the CPTC tax credit? STAY TUNED!!

Jun 2, 2015

Vancouver Immigration News Blog

Interview with Paul Sohn: Reflections from a Successful Korean-Canadian/American Immigrant

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Earlier this year, I had the distinct privilege of interviewing my former undergraduate colleague and friend Paul Sohn.

Paul (http://paulsohn.org/) is an award-winning author, mentor, leadership expert, and devout Christian among many other titles. He comes from very hardworking and successful roots, one that began when he came to Canada from Korea, by himself, as a 14-year old student.

He has since left Canada to pursue a successful career in the United States, which began at Boeing and has now landed him with GIANT Worldwide. He has some excellent and inspirational advice for those starting out in Canada, particularly from the Korean diaspora.

What is your name, age, and nationality? Where do you currently live and work?

My name is Paul Sohn. I’m a 28 year old Korean. I currently work as a Consulting Associate at GIANT Worldwide and am pursuing a Masters in Organization Development at Pepperdine University.

When did you first immigrate to Canada? Can you tell us why your family chose to immigrate to Vancouver from South Korea?

At the age of 14, I left everything I had in Korea – including my family and friends – to start a new life in Canada all by myself. Frankly speaking, I honestly didn’t see any future for in Korea. The societal and cultural pressures to conform to a certain lifestyle was overbearing. In many ways, I was deemed a “loser” and my prospects for a successful life eluded me. In an attempt re-design my life, I mustered the courage and decided to leave everything behind and start a new life.

What do you remember about your early days in Vancouver?

The first several years was about the transition from a young boy to young adult. I experienced many new things in life. New homestay family. New school. New friends. New language. New culture and so on. Everything was about new beginnings and I was doing my best to acclimate to the new culture.

What types of things did you do to help integrate yourself into this city when you arrived?

I had the privilege of living with a Canadian homestay family during high school. They treated me as if I was their real child. They poured out their love. They invested in my growth. They cared about my future. I remember spending countless hours talking about all kinds of topics. Our relationship has continued to flourish since then. Now, I call them “mom” and “dad” and the homestay children as my “brothers” and “sisters.” This support network enabled me to stay focused and adjust to the new environment.

Did you feel any challenges being a new immigrant and a Korean in Vancouver? Did that change over time?

As a Korean, the temptation to surround myself with same Koreans both at school and social life was real. After all, people find it a lot more comfortable being around with people who speaks the same language and understands your culture. However, I felt a strong need to go outside of my comfort zone and to stretch myself and challenge the status quo. Without focus and intentionality, it’s so easy to choose the easy road. Instead, I chose the narrow path. The journey wasn’t easy. I had to face my fears and overcome my weaknesses to become part of the mainstream.

Why did you choose to leave Vancouver?

After graduating from high school and university, I moved to Portland, OR in the United States for my first and new full-time job. Not only was it difficult to find a career that aligned my vocational interests, my parents moved from Korea to the States a few years prior to my graduation. Thankfully, I was able to obtain a green card allowing me to work in the States which offered greater career mobility.

Do you hope to return to live here permanently in the future?

I don’t have any immediate plans to return back to Canada at this point. At point, however, I’d like to come back and live for at least several years.

What would you recommend to new immigrants who may be unable to secure employment or develop networks in Canada?

First and foremost, learn the language. Without being proficient in English, your choices for secure employment becomes virtually impossible. I also think connections and building relationships with various people will help you to find career opportunities in Canada. Studies show that most people get a job through personal networks instead of submitting your application online.

What culturally specific challenges do you think exist for new immigrants from Korea to Vancouver?

Like I said earlier, there is a tendency for Koreans to limit their network with just Koreans. It’s vital to expand your network and build a culturally diverse portfolio of connections.

What do you see for the potential of Korean business in North America, and specifically Vancouver?

I have seen a growing number of bright Koreans moving to North America. As they engage with culture and immerse themselves as part of the mainstream, I believe this will generate more opportunities for growth. In addition, the rise of Hallyu (Korean Wave) worldwide will create greater interest for Koreans to create a blue ocean market.

As someone of the Korean Diaspora community who uses faith as a major motivation factor how do you believe faith can be a useful tool for new Korean immigrants to Canada? What local Vancouver faith-based organizations would you recommend?

Faith is a powerful source of hope for immigrants to Canada. In particular, Koreans are known for their religious fervor and belief in God. Many immigrants find churches to find a community where they can find “home.” Many rely on this religious community as a way to find new vocational opportunities as well. The practical benefits of joining a church cannot be ignored.

Jun 2, 2015

Opinion: Truth and Reconciliation Commission Has it Right on Canadian Citizenship

On June 2, 2015, the Truth and Reconciliation Commission released 94 recommendations after years of hearings and testimony from thousands of residential school survivors and several other key stakeholders.

Among those recommendations are a set related to citizenship and immigration (emphasis added):

Newcomers to Canada

93. We call upon the federal government, in collaboration with the national Aboriginal organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and history of residential schools.

94. We call upon the Government of Canada to replace the Oath of Citizenship with the following:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.

These changes, to me, are important beyond just a symbolic gesture of apology for past wrongdoing. From the Canadian history textbooks I grew up reading to today’s oath and exam materials, none has truthfully and honestly reflected the complex, diverse, rich, important, and at times very tragic history of our Aboriginal peoples.

For myself personally, I could not care less if a new citizen does not know the full name of our Prime Minister. Prime Ministers come and go. However, for a new citizen not to know of the events surrounding Residential Schools or know of at least the names of two Aboriginal bands in Canada, is inexcusable. Its a critical omission that will affect their future human interactions with Aboriginal peoples and thus our own Canadian identity.

As we welcome in new Canadians, it only seems right we reflect on and pay homage to the first Canadians. Our Aboriginal Peoples. Our brothers and sisters. Our forefathers.

I hope Minister Alexander or whoever becomes Minister of Citizenship and Immigration post-election, makes implementing this uncontroversial change, an early priority.

Jun 2, 2015

Canadian Immigration Law Blog

Sponsoring My Foreign Love – Preliminary Considerations (Part 1)

Recently, likely due to the summer wedding season being in full effect, I have been approached by several individuals considering the spousal sponsorship process.

The increased interest in sponsoring a spouse may also be tied to the increasing difficulty of obtaining permanent residence through other economic streams. Particularly for young international couples whose study permits, post graduate permits, and International Experience Class work permits are running out, the need to tie the knot in order to stay together becomes a date-ruining dinner time conversation.

As part one of a multi-part series, I will try and cover some of the challenges associated with spousal sponsorship applications.

So what are some considerations to consider prior to embarking on an application to sponsor?

1. Where are the potential Applicant and Sponsor currently residing and what is their legal status there? What is the Applicant’s immigration status in Canada?

This question is important for several reasons. To file an Inside Canada spousal sponsorship application, there is a requirement for the Applicant to actually be in Canada.

For Outside Canada spousal sponsorships, there is also the potential option of selecting the Visa Office that processes the second part of your Application. You can apply to a Visa Office that is not your country of citizenship if you currently hold legal status in that country and have done so for more than one consecutive year. This may be particularly useful for applicants who are citizens in a country such as Pakistan (currently 40 month processing time) but have legal status by virtue of study or work in London, England (currently 28 month processing time).

It is also important to consider their status (if they are in Canada). Do they have temporary resident status in Canada now? When does that status expire? Are they out of status?

These questions will affect what procedure you ultimately choose in sponsoring.

2. What is the status of your relationship?

Closely related to the above question of immigration status is the question of relationship status. Under Canadian Immigration Law you can sponsor a spouse or common law partner if:

(1) they are your legal spouse (i.e. you married);

(2) they are your common-law partner (at least 1 year of cohabitation and currently cohabiting in conjugal relationship);

(3) they have been in a conjugal relationship with you for one year (unable to cohabit due to persecution or penal control);

In addition to determining whether you have met the above categories, it is also important to ask yourself whether you have the evidence to show that you have met the above categories. For example for you and your common-law partner: Do you have proof that you have co-rented or co-leased a place to live for over a year? Do you have a joint bank account showing a conjugal (not just roommate) relationship?

These are all very relevant questions in determining common-law status as well as relationship genuineness at a later stage.

3. What are current application processing times?

Currently for Inside Canada spousal sponsorship applications the processing time is 26 months. This time is encapsulated in 17 months to obtain a first-stage approval that the relationship is bona-fide. In an Inside Canada sponsorship all of the processing takes place in Canada at Case Processing Centre Mississauga (CPC-M). Interviews, if necessary, are generally arranged at the local CIC office in the city which you reside and will require attendance by both Applicant and Sponsor.

Currently for an Outside Canada spousal sponsorship application, the processing time varies from 5 to 40 months depending on Visa Office. Note that this in addition to the assessment of the sponsor which currently takes 55 days. In an Outside Canada process, the sponsor assessment occurs at CPC-M before the application is sent to a visa post abroad for assessment of the bona fides. Interviews, if necessary, are arranged outside Canada and will require attendance by both Applicant and Sponsor.

Why is it important whether you have an immigration officer in Pakistan or London assesses your application? Asides from the level of scrutiny that may possibly differ (statistics don’t show too much of a correlation between visa posts), it will definitely affect the time it takes to make a decision.

Here are the processing times accessed from CIC as of 02/06/2015.

Processing times for sponsorship of spouses, common-law or conjugal partners and dependent children applications

The tables below indicate application processing times at Canadian visa offices once Step 1 has been completed. The times are based on how long it took to process 80 percent of all cases between April 1, 2014 to March 31, 2015. Processing times are subject to change.

Africa and Middle East

Asia and Pacific

Europe

Americas

Last quarterly update: May 20, 2015

Africa and Middle East

Visa Office Processing Times IN MONTHS
(based on a complete application package)

Abu Dhabi – United Arab Emirates 13

Accra – Ghana 16

Amman – Jordan 24

Ankara – Turkey 11

Beirut – Lebanon 16

Cairo – Egypt 18

Dakar – Senegal 21

Nairobi – Kenya 22

Pretoria – South Africa 15

Rabat – Morocco 8

Tel Aviv – Israel 9

Asia and Pacific

Visa Office Processing Times IN MONTHS
(based on a complete application package)

Beijing – China 10

Colombo – Sri Lanka 10

Hong Kong – China 10

Islamabad – Pakistan 40

Manila – Philippines 17

New Delhi – India 16

Singapore – Singapore 28

Sydney – Australia 11

Europe

Visa Office Processing Times IN MONTHS
(based on a complete application package)

Bucharest – Romania 17

Kyiv – Ukraine 12

London – United Kingdom 28

Moscow – Russia 24

Paris – France 8

Rome – Italy 12

Vienna – Austria 16

Warsaw – Poland 12

Americas

Visa Office Processing Times IN MONTHS
(based on a complete application package)

Bogota – Colombia 12

Buenos Aires – Argentina 14

Guatemala City – Guatemala –

Havana – Cuba 10

Kingston – Jamaica 23

Lima – Peru 10

Los Angeles – United States 29

Mexico City – Mexico 17

New York – United States 35

Ottawa (Case Processing Centre) – Canada 16

Port-au-Prince – Haiti 23

Port of Spain – Trinidad and Tobago 17

Santiago – Chile 22

Santo Domingo – Dominican Republic 14

Sao Paulo – Brazil 5

Notes

You can view your application status online.

If it has been longer than the time shown above since you applied and your visa office has not contacted you, you may wish to contact the visa office that is processing your application. The Call Centre does not have information about applications processed outside Canada.

(–) indicates that not enough data are available. Processing times are shown only where an office has finalized 10 or more cases in the past 12 months.

SOURCE: http://www.cic.gc.ca/english/information/times/perm/fc-spouses.asp

Africa and Middle East
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Abu Dhabi – United Arab Emirates	13
Accra – Ghana	16
Amman – Jordan	24
Ankara – Turkey	11
Beirut – Lebanon	16
Cairo – Egypt	18
Dakar – Senegal	21
Nairobi – Kenya	22
Pretoria – South Africa	15
Rabat – Morocco	8
Tel Aviv – Israel	9

Asia and Pacific
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Beijing – China	10
Colombo – Sri Lanka	10
Hong Kong – China	10
Islamabad – Pakistan	40
Manila – Philippines	17
New Delhi – India	16
Singapore – Singapore	28
Sydney – Australia	11

Europe
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Bucharest – Romania	17
Kyiv – Ukraine	12
London – United Kingdom	28
Moscow – Russia	24
Paris – France	8
Rome – Italy	12
Vienna – Austria	16
Warsaw – Poland	12

Americas
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Bogota – Colombia	12
Buenos Aires – Argentina	14
Guatemala City – Guatemala	–
Havana – Cuba	10
Kingston – Jamaica	23
Lima – Peru	10
Los Angeles – United States	29
Mexico City – Mexico	17
New York – United States	35
Ottawa (Case Processing Centre) – Canada	16
Port-au-Prince – Haiti	23
Port of Spain – Trinidad and Tobago	17
Santiago – Chile	22
Santo Domingo – Dominican Republic	14
Sao Paulo – Brazil	5

Returning to our Pakistan and London example, the same application processed in Pakistan will take a calendar year longer. You can readily see the huge discrepancies between visa posts,

4. Should I choose the Inside Canada or Outside Canada process?

As alluded to earlier, Applicants currently residing in Canada have a choice of applying for an Inside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/spouse.asp) or, if they have temporary resident status and reside in Canada, an Outside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/fc.asp). Applicants applying from outside Canada can only utilize the Outside of Canada process.

Note with an Outside Canada application you will also need to show that there will be an effort to bring the spouse to Canada to reside permanently upon being granted permanent resident status.

An Inside Canada spousal sponsorship application certainly has its advantages, among which include:

If the Applicant has valid temporary resident status after 4 month processing, there is currently a pilot project for a spousal open work permit which will allow the Applicant to work in Canada for any employer in Canada;
The Applicant can still have their application processed without holding temporary resident status and has the benefit of an administrative deferral of 60 days in most circumstances (in which time the application will be processed) if removal proceedings are issued against the Applicant;
For those who currently have temporary status and apply to extend their temporary status in Canada along with their in-Canada spousal permanent residence application, they can have implied status for the duration of the processing or until they leave Canada;
The entire process occurs in Canada, there is no need to travel abroad for an interview at a foreign visa post;

However, there are also several disadvantages:

The spouse/common-law partner needs to reside and live together in Canada for the duration of processing. Any separation (particularly outside of Canada travel by one party) may effect severance of the common-law relationship;
Any denial of re-entry for the Applicant to return into Canada will lead to refusal of the in-Canada application and will trigger the requirement to reapply (likely using the Outside Canada process);
You have no rights to appeal to the Immigration Appeal Division in the case of your application being refused. Your only recourse is the Federal Court where the visa officer’s decision is reviewed on the difficult to challenge standards of reasonableness and correctness;
There is currently a 26 month processing time for these applications in which time the Applicant will not be a permanent resident of Canada; and
The open spousal work permit is a pilot project and subject to change. Previous to the new pilot program, spousal work permits were only issued after 17 months of processing, meaning many couples had to rely solely on the Sponsor’s income for 17 months;

An Outside Canada spousal sponsorship application also has its advantages:

The Applicant and Sponsor do not need to reside together in Canada and can pursue options either abroad or in Canada;
There is a general right to the Immigration Appeal Division in the event your Spousal Sponsorship application is refused (except in serious criminality, misrepresentation, terrorism, etc.). At the IAD you will have a second chance in a de novo (new) hearing to prove the genuineness and purpose of your marriage (should that be the ground for refusal).

However, there are also several disadvantages:

There is no right to an open spousal work permit and you will likely have to obtain the ability to work in Canada through under means;
Couples may have some challenges spending immediate time together in Canada where the Applicant is from […]

Jun 1, 2015

Law Student Advice and Mentorship

Questions from a Pre-Law Student (Part 1)

A week and a half ago I was approached by a Pre-Law Student with some questions about whether to go to law school or grad school and related issues.

I thought I’d post my answers that I gave her.

Why did you pursue law school?

I wanted to pursue law school since I was a kid, but I was probably jaded by the “arguments” and “big bucks” as per my grade 7 yearbook.

Truthfully, it was during undergraduate when I started volunteering with Access Justice (now Access Pro Bono), and realized how much the law impacted individuals day-to-day lives. I also started getting heavily involved in community advocacy efforts in my history and international relation studies. I realized that one of my major challenges was that it was difficult to speak up as just an “undergraduate student.”

I guess I wanted people to take me a little more seriously.

Should I work for a few years before pursuing law school or go straight into it?

It depends. Do you have something specific you want to go into? I think if you have a legitimate position that you can go into (either a high-level government job/internship or one with a great company) you should jump in. You could possibly make some money and help pay for law school. You may also put yourself in a good position to come out of law school and combine your experience. For you in particular, if you found a very good gig in marketing and became a marketing professional for a couple years, arguably you could go to law school and be very good at areas around legal marketing. I’ve seen a few people very successful at this particular in the entertainment industry where they became entertainment lawyers.

Should I take an LSAT prep course or self study?

It depends on how fast you are getting it. I would start by getting some books or materials off a colleague and reading them. If you feel like its intuitive you can start doing practice exams on your own.

I took two courses, both very expensive, and only the second one was very helpful. For me, the battle was more mental and the second course (and the instructor) was really helpful. He doesn’t teach anymore. Needless to say I didn’t do so well on the LSAT, writing three times (cancelling twice) and only obtaining 66^th percentile.

What do you think about an international law degree obtained abroad?

I would obtain one in Canada if you foresee your future here (that is unless you go to a top Ivey league U.S. J.D program). I think that due to the lack of legal jobs in Canada, more pressure is being placed on the system to provide less opportunity to foreign-trained lawyers and more to domestic students. However, if you foresee yourself living and working in another city abroad, go do law school there (near there) for sure.

Finally, I think all law schools in Canada are good. Don’t feel pressured to think only the top schools are the best. Also, for someone more holistic and well-rounded like yourself you may do better at a school that focuses more on well-rounded areas and recruits those type of students.

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