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Three Challenges I Can Already Foresee: Canada’s Temporary Public Policy for International Graduates

On 14 April 2021, the Minister released a Temporary Public Policy (“TPP”) for international graduates, including the creation of a 40,000 cap for those with a recent Canadian post-secondary credential issued since January 2017 (See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/public-policies/trpr-international-graduates.html).

While this move is rightfully being lauded as part of a larger set of Temporary Public Policies that open the door that Express Entry has lately kept shut and the target shortfalls of COVID-19 have exacerbated, I have my concerns.

In this piece, I will go over three challenges I can already foresee with Canada’s Temporary Public Policy for International Graduates and what I would do to address it if I were the Government. In some cases, it will be too late likely but I’ll provide my hindsight perspective:

 

1.The Speed Based System Will Inevitably Lead to Crashes

Whether it be the system crashing or an Applicant’s application crashing due to the system forcing too much speed, I suspect something will crash on May 6th. While I have heard many numbers thrown around, from 500k vying for 40k spots, we know for a fact that very few former study permit holders ultimately obtain permanent residency in Canada. While this number was at one time in the mid 90’s and early 2000’s at a higher percentage, for the last few years it has been single digits. Even Express Entry, ostensibly made to support international graduates, do not meet the needs of most international graduates. Taking into account the number of international graduates who are working in retail, as servers, and customer services representatives – this is a large group who will be interested in applying on May 6th. While some will have access to the other TPP, not all well (many times due to the lack of one-year of work experience) and perhaps significant self employment experience.

Unlike traditional programs that require perhaps first a registration of intent and then a submission process, this appears to be set to do the entire process of eligibility and application all at once. like a full-day exam, this has the potential to be a few hours of absolute stress and anxiety. The reality is many will be on the outside looking in. Certainly, preparing and predicting for what can go wrong will go along way.

Still, I don’t see a way that demand for this program does not at the least slow down or crash the server, and at the very worst lead to many unable to access the forms, validate, submit, sign, and do all the logistics that permanent residence applications require. It seems almost counter intuitive that a process professionals charge and properly take weeks and in some cases months for is being jammed into several hours. Mistakes will be made. The call centre lines will be jammed up with those stuck, and at the end of it 40,000 names will be in the queue but not necessary become permanent residents.

As someone who co-spearheaded the parent and grandparent litigation in 2019, this has all the markings of that process repeated – perhaps without the Charter breach if a suitable process is created for persons with disabilities. Yet, so many were caught on issues outside of their control on the technology side. All it takes is one bad form for the system to derail or one server issue. I am hoping it does not happen but I am not holding my breath.

I am also not going to be registering anyone, directly or indirectly. Not only has IRCC indicated that this is the way the portal will be made (shutting out authorized reps), but the reality is one cannot do competent accurate work on a speed basis, let alone without access to the actual forms being held by both applicant and representative. Furthermore, representatives will be at a conflict of interest trying to register multiple clients.

When we do permanent resident applications for clients, we specifically (and often advise) for patience. That doing a good job requires time, review, double checking, and perhaps legal submissions to clarify inconsistencies. None of these appear to be either promoted or supported in a ‘typing race’ type process.

 

Possible Solution (although it is likely too late): While everyone hates the random draw, perhaps in a circumstance like this with demand sure to exceed space it is a fairer way to give everyone ample time to be eligible and put in an interest of the program. The other option is to push the start date a bit (to a date that clearly gives applicants (and third parties) at least a little more time to get their materials ready. Another option is to stager the intake so rather than one shot at 40,000, it could be 10,000 spots over four months allowing those who perhaps are not fully complete with their documents a bit of time to participate. My third suggestion is a vaccine approach. Are there certain graduates you want (STEMs? those who hold graduate degrees first before degree-holders and then diplomas?) – it would be entirely justifiable to start with a group first and then expand the pie until the spots are filled and thereby also controlling the flow. Yet, as I write above, it is likely too late to rethink it.

 

 

2. The Requirement for Employment Only at the Time Application Received is Both Bizarre and Ripe for Misuse

One of the requirements of the international graduates TPP is that an eligible applicant must hold employment at the time of the receipt of their application for permanent residency under the policy.

While I have a bone to pick with the self-employment bar as well (frankly an area the Government would be best to better resource with PR program and/or encourage the Provinces to step in), it seems rather arbitrary that an employee has to be working as an employee on the particular day their application is submitted, not any day before, not any day after. Indeed, this type of requirement does open the possibility of abuse: employment for a short-term period just to gain eligibility. As an aside, I had a consultation client ask today if I could hire them as an employee for my Law Firm so they could be eligible for this – to which I answered, no.

Especially during COVID when individuals, many of whom sacrificed and were employed in the past year, but perhaps less than a year or not in categories eligible under the essential occupation TPP, are possibly now on leave – it does not quite make sense that employment occurs in such a small vacuum. How does IRCC later assess it when someone who obtained employment for a two week period in order to submit the application, then quits to resume their self-employment (for example).  It seems very arbitrary to require employment in this nature. One could (and presumably should) sign up for a temporary agency just to meet these requirements, and while good for the economy during these difficult times certainly inexplicable from a rational perspective why one would need to do this to meet an immigration program requirement. These are the same types of decisions that many fraud/arranged employment/inadmissibility cases are built under.

Possible Solution (although it is likely too late): Rather than require employment on that one particular day, require employment (or ongoing efforts to regain employment) until an eligibility decision is made. Perhaps consider extending exceptions to those who are on short-term leave but were otherwise employed. IRCC should clarify (well in advance) what type of employment letter would be needed to meet this requirement.

 

3. Refusals Will Happen in Droves + Possibly Misrepresentation Risk Increases

Applicants will be refused in droves over issues with documentation. Even in the current iteration, it is unclear what words such as ‘attestation‘ mean in terms of proof of completion of studies or whether someone’s proof of completion of studies or unofficial transcript will be good enough appear up in the air. On strict reading, it is very likely that a simple confirmation of employment and pending final transcript will be good enough to get in the door of eligibility.

One might ask why refusal and not return of incomplete application?

Because this program falls under a temporary public policy, Regulation 10 IRPR does not apply and therefore there are two options. The first, is a tightened eligibility screen, where Applicants must enter documentation to show they are indeed eligible. By controlling the content of this screen, it may limit the number of individuals who are able to access the permanent residence portion (for example if they do not have a final language test result). However, given the process is again speed based, Applicants presumably need to have all their materials ready to go/or else

Putting out information early (or even delaying the start date a little bit) doesn’t hurt to make sure everyone has the same ground rules would be advisable. Furthermore, those who may need to make applications due to disability (which presumably will be by paper), should understand what type of medical evidence they will need and to ensure that they have enough time to obtain it.

Also –  what will happen if an individual manages to answer in a way to get them past the proverbial first screen, but then when submitting the actual application, things auto-populate (perhaps even incorrectly) and or things will need to be corrected? The benefits of the Express Entry ITA system is it does allow for both amendments before an invitation, as well as ways to update corrections. Many times, as counsel, these were the types of issues we were engage on.

I do suspect that what Applicant’s rush to submit may itself create problems. Failures to disclose memberships, previous refusals, arrests, or even clarify overlaps and gaps. These were the usual things we would advise clients to hold up and wait for, but now are things that an Applicant may be better off submitting first and explaining later. How does this then play into inadmissibility, misrepresentation, and other complications that can arise?

There are also possibly unique opportunities. I do have a gut sense that automated decision-makers are somewhere involved in the process, but if there are no R.10’s (IRPR) are applicants going to rush to bolster their files after (presumably also when they realized they submitted incomplete information). This information, if […]

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Five Things I Wish International Students Knew Before Applying for Canadian Study Permits

Setting the Scene: Where We Are At and Where We Are Going

I have been struggling with this post – to capture the experiences of the many prospective clients/international student applicants who have entered our door of late asking about their study permits, more specifically why they have been refused, delayed, or found inadmissible for misrepresentation.

Remedies are both a huge time commitment and often times a big corresponding financial commitment. In thinking about how I could input myself into the process (in a helpful way) I thought about writing a post where I take those experiences of all the international students who come see me to try and remedy their refusals and summarize it into five (likely oversimplified, but deeply important) points. These points are important both for international students to protect themselves (be it emotionally, financially (from those all-too-eager to exploit), or even just to help plan their futures during tumultuous times.

We all know the starting point: Canada has become an increasingly attractive study destination especially compared to other countries. While international tuition is still what I personally believe to be dangerously high, it is comparatively cheaper to study in Canada than many other Five Eyes countries. Our immigration options for international students also provide much more flexibility around work while studies, post-graduate work permits, and work permits for accompanying dependents.

We also know that COVID, as my colleague Lou Janssen Dangzalan uncovered through a recent ATIP request, has had a major detrimental effect on study permit applicants.

This has impacted overall refusal rates:

If we look at the two largest international student generating countries – India and China, we see the impact in terms of the change in approval rates:

The stark numbers of how many less study permits were issued in 2020 (granted the data is not entirely complete) cannot be ignored:

For the time being, new restrictive and frankly, confusing, policies such as IRCC’s rule on accompanying dependents of international students (for example discrepancy between: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family or https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family) along with the new quarantine rules are a signal the Government wants to get through the vaccine phase before admitting too many more international travellers (including international students).

This is my theory about where post-COVID recovery will ultimately go:

With this in mind, we have a timeframe of a few months for most international students to consider carefully their next move. Perhaps, for some, it may even be re-evaluating. I would not throw caution into the wind. Whether you are the paying parent of an international student who insists they ‘got this’ or if you are the international student, wondering what your agent (who is very likely being paid more by your school than by you) doing.

Without further ado, here are the five things I wish international student knew before applying for a study permit in Canada.

 

Thing 1: Be Very Intentional and Careful About the School/Programs/Immigration Advisors You Choose 

Not all schools are treated by Canadian immigration (“IRCC”) the same. There are schools with excellent reputations, many of them being public/higher-level institutions. There are others that have not-so-good reputations – perhaps being smaller private colleges that often take students with lower academic accomplishments. These lists are also not static. Many schools on both sides of the aisle have taken steps and/or hits. Do some research on the reputation of the school.

Be also intentional about where you study. A Visa Officer may have questions already about where you are coming from (see Thing 3 below) and wonder why you are going to a particular Province and that particular school.

As an Applicant you need to be able to make a business case for this: that likely should go beyond the access to permanent residence pathways. As I discussed in this post, dual intention has been utilized as a buzzword but it packs a complex case for meeting the R.216 IRPR requirements to demonstrate you can leave Canada at the end of your authorized stay.

If you are a student from a refusal-producing country (i.e. the statistics, which are accessible if you look hard enough, demonstrate most applicants are being refused), I would suggest it becomes more important  to demonstrate that your studies are bona fide. If you receive scholarships or are entering a level of education that is considered a major upgrade to your education, these are factors that can assist towards maximizing your chances of success. I use the word chance very specifically.

There are no guarantees anymore in the area of international student immigration law/policy.

Be also very aware an intentional about the systems operating around you.

These systems include your family members (what your parents want for you, siblings, other family in Canada).

They include the Designated Learning Institutions (“DLIs”) which have a mandate to protect their own interests. If they refer you to someone (as institutions do to me) it is very fair to ask them why this individual. Be due diligent. This definitely includes agents who say they can do your immigration work for 100 or 200 dollars without disclosing that they are neither authorized immigration representatives (and therefore ask you to sign your own forms) or that they are making a 1/3rd of your tuition back as their finders/placement fee.

This extends to banks/creditors who might be financing your studies for their various reasons but perhaps willing to bend rules and documentation to assist you. Don’t underestimate immigration’s own access to finding out whether a document provided is genuine or not. Same goes with language tests, that are increasingly under scrutiny for fraud prevention.

If you are applying, as most are, from outside Canada know too that immigration fraud unfortunately does exist and if there are red flags (agents who claim they have connections or apparently bizarre correspondence between them and the visa office) take action. Many applicants can save their own situation by seeking a withdrawal (either with or without new counsel) and/or an opportunity to correct the record before it is discovered. Check and ask to see every document that leaves your hands, including making sure that they are submitted in the form you want them to be submitted.

Be very intentional, careful, alert, and aware to the profit industry that is international education and your own role in the system. The more control and guidance you have over your own situation, the better you will be able to rationalize the outcome and prepare for your experiences in Canada.

 

Thing 2: Get to Know Your School Registrar and International Student Advisors Really Well

Get to know the school registrar.

Why?

You may need to defer studies depending on processing times and your own ability to obtain documentation. You may need to ask for refunds or for further letters. Make sure you have direct contact with the registrar and do not over rely on an agent or third-party who may not have your best interests in mind.

Get to know the RISIAs and RCICs who often work for the schools.

RISIAs stand for Regulated International Student Immigration Advisors and RCICs are Regulated Canadian Immigration Consultants. These individuals are often employed by Universities and Colleges to assist with international students. A flag for you may be how few resources the school may have for international students. Schools that have more international student support, more resources, tend to be better positioned both in terms of achieving student approvals but also to help once you are here. This is of underestimated importance. When you become an international student, you must navigate leaves, full-time student status, and post-graduate work permit eligibility, events and occurrences that are very crucial to your success and eventual pathway to permanent residence.

Each DLI (and often each departments) has their own policies surrounding how much they can help out, particularly for applicants who are overseas. I tend to find that students who receive scholarships or are attending specialized programs do get specialized treatment. Some DLIs even assign certain staff to focus just on these programs. This may be crucial, especially in light of a first stage refusal that requires reconsideration or a re-application, with school support. Good DLI RISIAs and RCICs have single-handedly been able to make an impact for students, by providing additional letters of support, explanation, or even a referral to a Member of Parliament that can change one’s prospects.

The better the relationship you can build with them and start fostering early on, the better it is. Again, do not rely on your agent or educational consultant, who has a very different end goal and outcome from being that liaison (getting paid off your end enrollment, with payouts depending on the school you attend and their agreement with them).

 

Thing 3: There Are Constraints on Approving Your Application That Are Outside Your Control and Highly Irrational

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Express Entry: Three Things to Ask Your Representative About Your eAPR Before They Submit + One Bonus Tip

As many of you are aware, Express Entry took a new direction last week when 27,332 Invitations to Apply were issued to Canadian Experience Class applicants at a record-low 75 CRS points

I will not repeat what I have on Twitter and other channels. I would have preferred an ordered and organized invitation to apply that gave applicants more time to anticipate this move, secure relevant documents, and create profiles. This also could have better tempered expectations in the future and avoided the unfortunate cash-grab I suspect we will see from those now taking unreasonable amounts of money to create profiles, a step ripe for ghost consulting/agencies/and unauthorized practice.

Nevertheless, what what was done is done (and cannot be undone) and now Applicants are being contacted by their representatives letting them know they have an invitation and a limited time to gather their materials (90 days) for which many will struggle to obtain key documents such as required overseas police clearances.

The Limitation of the IRCC Representative Portal

The first contextual thing to understand is that the current IRCC Representative’s Portal has major limitations. The biggest limitation is that we are unable to share our work with clients to access their own file, without taking print to PDF screenshots or joining a virtual meeting to share our screens. For this reason, many counsel may suggest you create your own profile and that they help you review and edit what you type in. They may take it on an hourly review basis or as authorized representative (with a Use of Rep). While some consider this ‘ghosting’, I’m not mad at this approach.

It is a risk though, I repeat a huge risk, to allow for the submission of any application without reviewing what that representative has done in full and giving the green light before it is submitted. This is particularly true with this round of invitations. Given the volume of ITAs and the Government’s recent 0% target of meeting Express Entry processing times, I would suggest that the Government very likely has some sort of artificial intelligence-based pre-assessment system lined up to tackle this workload. Applicant/Representative mistakes and errors of even the most minute type, may be readily caught. There appears to be an increased scrutiny around misrepresentations, particularly around failures to disclose arrest histories and omissions of relevant employment/work history details.

We are hearing, anecdotally, that some advisors (both authorized and unauthorized) have in some cases in the ballpark of 200 ITAs. That means 200 Electronic Applications for Permanent residence (eAPR) applications that need to be submitted within 90 days. You may find that these are often time larger scale enterprises, volume driven, who may have already registered many clients on a hope and a whim, not realizing they would pan out. Now, they will need to put resources together (which include passing you off to case managers or other processing agents – with limited Canadian immigration law expertise) to meet their deadlines.

As someone who considers working on a dozen paid applications a month as enough volume (to control process and see them through step by step), I worry for the applicants. I write this piece for their well-being and best interests.

Three Things to Ask Your Express Entry eAPR Rep

#1 – Ask for a Print to PDF of Your Entire Application With Employment History Broken Down

If you are counsel and a CBA Member consider Nate Po’s app Immprintr to print your entire application as one pdf (https://www.cba.org/Sections/Immigration-Law/Resources/Resources/2018/IMMPrintr)

Ask for the full breakdown of the Employment history to make sure that what you have passed on with respect to your positions, hours of work, start and end months is consistent. Double check that the NOC codes selected match with your duties at the time and be careful to avoid mixing together or overlapping two clearly different positions.

Triple check that the statutory questions have been answered correctly, particularly around any arrest history, work for Governments, medical inadmissibility issues, and military history.

Document discrepancies, ask for changes to be made, and to see proof of those changes by way of revised screenshots.

#2 – Ask for a Itemized/Number List of All Attachments To Be Submitted to be Shared Via Cloud for Your Review

One of the value-adds an authorized representative should be able to provide is organization. They should know what IRCC wants to see and what makes life easier for the processing Officer. If they are organizing things in a way that doesn’t make it clear and in fact, is probably messier than you would have done it yourself – this should be a flag.

Ask your authorized representative for a full itemized/numbered list of all attachments (often called an Enclosures List or Personalized Document Checklist). Ask for a Cloud-shared folder of everything that is being submitted. Are the documents you provided there? If they have been excluded, ask why (or why not). Some flags include pdf attachments that are much too large (suggesting the authorized representative has limited experience with upload size), as well as things that are not combined properly or not at all. This is also your way to double check what you have submitted against IRCC’s completeness check list of attachments for Express Entry (see here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/express-entry/applications-received-on-after-january-1-2016-completeness-check.html)

An incomplete application can often have huge and negative impacts on one’s ability to stay in Canada during processing of an Express Entry eAPR application.

#3 – Ask for Transparency on Timelines and Info on What the Follow-Up Looks Like

The reality if you are working with someone who has a volume practice, is that this invite may have created an unsustainable workload for them. This requires that you ensure they are on top of your file, and for you to cover any gaps in their work and to hold them extra accountable.

Ask them up front – how many files are you working on and when do you see my file being completed. If they have some form of project management process, they should be routinely updating you with their submission plan, breaking down roles and responsibilities, and providing iterative feedback on your draft documents (especially Confirmation of Employment letters) at an agreeable time.

If you haven’t met your consultant or lawyer in person – that too is likely something you want to secure to at least put a face to name. Their availability (or lack thereof) may also be a good sign of the level of oversight on your file.

Ask too about Bridging Open Work Permits (“BOWP”). Ask about what happens to your accompanying family members who might have status expiring.

If updated documents will likely need to be submitted in order to ensure a complete application – ask them for their update plan. Where will they update the documents? What documents are necessary for a complete application and which ones are discretionary? These questions will likely give you a sense of where you stand and help you make sure you meet your timelines.

I will throw in one bonus tip for good measure.

Bonus Tip #4 – Don’t Be Afraid to Ask for a Second Opinion (Seek Independent Legal Advice). It’ll Save You Money

A refused application that needs to resubmitted will easily draw anywhere between 1.5-2 times the price of an initial application. Reconsideration requests, with an uncertain and ultimately discretionary outcome, could itself be in the range of at least cost equivalent to the original application, particularly if significant legal submissions on the test for reconsideration are required. The process of judicial review, amid lower grant rates, will put you back likely 2 times + the cost of your initial applications.

What is the worst case to engage a second opinion for a review on an hourly basis: you can choose the scope, but you are looking at in most cases about an additional 3-5 hours (at most). Even a spot check consultation for an hour can possibly turn up some red flags. I can tell you from personal experience, I have had to save many a client from having their application submitted with major concerns (often times possible misrepresentation) on file.

Bottom line: it is entirely worth it to get a second opinion on your Express Entry application, particularly

 

Express Entry: Grounded Expectations

Most importantly, and to conclude, Express Entry going to 75 points one one draw should not yet be a leeway to put your foot off the gas pedal. Blindly abandoning a paper-based PNP application, figuring you can get away with not doing a language test, can often backfire. If anything, I believe even more diligence will be needed now. Allowing more individuals into the race does not presume everyone will finish. Indeed, I can see these efforts (including the number of refused/abandoned/incomplete applications) used as justifications for the ‘trying’ to meet Canada’s immigration targets.

Greater due diligence and better organization will be needed especially if Artificial Intelligence becomes part of the assessment process.

I hope all those authorized reps (even those with 200 ITAs) the best as they deal with this major development in Canadian immigration law. I hope, most importantly, that our clients are well served by good, competent, and ethical work.

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Dear IRCC: Requesting Uploaded Non-Refundable Plane Tickets for Refused Extension Applications Is Not The Way To Go

I apologize folks. I’m in the middle of a transition (starting my own Firm in February – more details about this later). I’ve also engaged an entire revamp of this blog, which will be releasing as well. I’m supposed to be on hiatus. However, something shared by one of my colleagues has had me spring into action. IRCC: this move is wrong, not procedurally fair, and has disasterous consequences for access to justice.

What am I talking about? Check out the screen shot below.

Dear IRCC:

While it is clear the Government has been pushing to make the restoration process more difficult (trying to limit it to only statuses previously held), it behooves procedural fairness that rather than informing applicants of their statutory option to pursue restoration within 90 days they are telling applicants to leave and provide proof that they are leaving.

There is also no transparency on how to challenge a decision like this. What if an individually legitimately was refused due to missing documentation or a technical issue and has a strong argument for restoration? Do they apply for restoration? What happens if they ignore this request to upload proof. Does CBSA show up before they are able to confirm their restoration has been approved? [The fact we are removing individuals during a pandemic is another bone – but I’ll pick it some other time].

I would argue that this has the most immediate and harmful impacts on those who are unrepresented. As counsel, at least I can seek clarification and know how to navigate restoration to immediately submit an application and perhaps inform IRCC. A self-represented applicant, with no public facing knowledge of the process having provided by IRCC, will not know what to do. I fear that for the international students who I’ve seen this sent to, this can lead to harmful decisions. I’ve been in too many cases where international students were afraid to tell their parents, going so far as trying to leave to a third country to avoid letting their major educational funder parents know.

Importantly, this action breaches procedural fairness. Indeed, I think the Government needs to be enjoined from prematurely requesting something and shielding the fact an alternative remedy is not on available but statutorily provided. This type of action utilizes policy to try and shield the protections provided by law and is inconsistent with the rule of law and due process.

I call on the Government to stop issuing these letters to applicants who receive temporary resident extension refusals and in fact all refusal letters. Go back to informing these individuals that they have the ability to apply for restoration within 90 days. Suspend removals, especially now that there are programs being rolled out to help restore those who have lost status and given them an extended time to do so. This type of letter contracts the generosity through policy that has been provided (see: here).

In the interim, we need transparency:

  1. Who is this being sent to?
  2. Is it just for citizens of certain countries?
  3. Why is it not being limited to cases where individuals are truly out of status without access to restoration?
  4. Where are the public instructions on how to respond to something like this?

Sincerely.

Will

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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