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From a logical perspective, the more requirements there are for something you wish to obtain, for example job requirements or minimum scholarship requirements, the less room there is for any discretion.
Using a Canadian immigration example, part of the reason Labour Market Impact Assessments (“LMIA”) Applications are able to facilitate employment when the Employer clearly has a Foreign National candidate in mind is due to Employer’s ability to set the requirements for the job to meet the Foreign National’s unique profile. This allows them to prove to Service Canada that the decision to hire was not discretionary and therefore that the genuine efforts were made to hire Canadians.
However, contrary to the examples above, I believe there is a growing trend that will see requirements being used as a way to create discretion and will affect the consistency of Officer decision-making.
How Discretion Might Work
With both the new Express Entry application process and the Government’s proposed SIN-sharing regulations on both Permanent Residents (http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg2-eng.php) and Citizens (http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg1-eng.php), information will be requested from applicants that will exist beyond available memory and likely, even, available records.
In order to submit an Electronic Application for Permanent Residence under Express Entry, applicants are asked to provide a reference letter for every employment they have ever held, setting out terms of employment (duration, wage, benefits, etc.). Under the proposed SIN/data sharing legislation, Applicants are provided the “option” of providing SIN numbers. These SIN numbers will then be shared with CRA to access the Income Verification Program. While not providing a SIN number cannot be a stand-alone reason for application refusal (according to the Regulatory Impact Analysis Statement), the groundwork is there for it being a reason to severely delay the application. [Editor’s note: Will be doing more indepth paper on this topic coming May 2015]
The ability of any human, let alone even tax/accounting software, to ensure all this information is accurate is in my opinion impossible. The requirements are high. I remember back in 2013 when I applied for Government of Canada Security Clearance (for an internship I never did), I only had to provide a 10-year work/employment history.
Now applicants will need to know the date of every trip ever taken, every dollar ever earned and possibly even spent. Past failures to keep accurate records of flights or the use of a less than capable tax accountant can now come back to bite an applicant in the behind.
Every application will contain errors. It is inevitable under this new “compliance heavy” regime. Yet, every application cannot be refused. Doing so would be a waste of everybody’s resources and make Canada an unattractive immigration destination. Needless to say, I believe immigration practitioners can no longer rely on the self-declarations/draft responses of an applicant when filling out forms and will ultimately need a piece of hard evidence (tax form, employment letter, or visa stamp) to verify each date and dollar provided.
I think that the new requirements give a discretion to immigration officers to refuse any application and to ensure that the application is not susceptible to appeal or review.
It will be interesting down the road, to compare reasons for refusal and uncover how said discretion is being applied. I wouldn’t be surprised if net worth and country and origin play a huge factor.
With the introduction of Express Entry earlier this year and the Government of Canada’s corresponding efforts to make the application system more accessible to the average Canadian, one intended consequence may be Applicants making what amount to “unforced errors” during the application process.
Corresponding, the Government appears to be taking an increasingly hard line towards Applicant’s who submit incorrect and possibly misleading information for the purposes of obtaining immigration status.
When do mistakes become misrepresentation? What happens if you forget important dates, names, and information on your Express Entry Application and realize this fact later on.
Misrepresentation Provisions of IRPA
As a result of recent changes to the legislation, the bar for misrepresentation has increased from 2 years to 5 years. Furthermore, Applicants will be barred from making a permanent residence application for the duration of that 5 years.
Prior to the change, many applicants would leave Canada but simultaneously file an application for permanent residence such as a spousal sponsorship which would be processed by the time the two years had been fulfilled.
Finally, as a backend issue, it is important to note that the ban applies retroactively. Even if the misrepresentation occured prior to the new legislation, the uncovering of the misrepresentation on today’s date would create the 5-year ban.
The provisions themselves state as follows:
40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or
(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.
(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.
(3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).
For the purposes of finding whether an error is a misrepresentation or not, we must determine whether the applicant “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act”
Without going specifically into the case law/administrative guidance on this issue, there are several factors that could be taken into consideration:
- How material is the error (i.e. does the error affect outcome?)?
- Was it an honest error? –
- In the case of non-disclosure, did the individual honestly and reasonably they were not misholding material facts?
- Is there sensitive personal situation being concealed to avoid embarrassment?
- As the applicant been given a chance to respond to the error?
- And most importantly, what are the specific facts and surrounding circumstances of the case?
Why the Risk Has Increased with Express Entry
In many ways, Express Entry is the same as the paper form and misrepresentation is assessed no differently. However, with Express Entry rather than making one paper application, there are three stages (arguably more) where you are submitting information to Citizenship and Immigration Canada. Information must be substantiated at all three stages and that information is also very likely to change during that period.
When creating an Express Entry profile, applicants are asked to create a profile which asks questions about their individual bio-data, their employment and educational histories, and their finances and family ties (among others). This information is used to generate a Comprehensive Ranking Score, by which they can later be selected from the pool.
Upon receiving an Invitation to Apply for Permanent Residency (“ITA”) Applicants will then have to provide significant documentation (within only 60 days) in order to create an Electronic Application for Permanent Residency (“E-APR”). This documentation includes a reference letter for each employment ever held, dates for each trip ever made, relevant pay stubs, tax documents, and family information.
To complicate matters, information can change and the Comprehensive Ranking Score/eligibility for Express Entry can change during the time a profile is created, and ITA is issued, and a E-APR is granted. This information has to be up-to-date throughout. For example, work permits may expire, family members may be born, and educational/work histories can change.
CIC appears to still be in the process of figuring out how it will assess misrepresentation specific to Express Entry. They have however, in a program delivery update, put out the following information
Assessing for misrepresentation
Applicants are warned that if they misrepresent their qualifications in their Express Entry profile or their e-APR, they may face a five-year ban from submitting any further immigration applications to Canada, including temporary residence applications.
If there are discrepancies between the information in an applicant’s profile and the information entered in the applicant’s e-APR which are not the result of a legitimate change in the applicant’s circumstance, the officer should determine whether a finding of misrepresentation under A40 applies.
For additional guidance on misrepresentation, processing offices should consult the misrepresentation section of ENF29 (PDF, 604.30 KB). The procedures for determining misrepresentation, including procedural fairness, remain the same under Express Entry.
If both A11.2 and A40 apply, the application should be refused on both grounds.
Because the very process of Express Entry is points-based, and minor changes can lead to differences in points and thus could affect whether an individual meets the threshold to be selected – the materiality of Express Entry errors is arguably greater than it was with paper-based forms.
Also, one of the reasons that misrepresentation is also more likely to occur during Express Entry is that the system itself (and the way data is inputted) can lead to mistakes.
When creating a profile and filing out the online forms, a series of boxes open up, some allowing you to select options and others requiring you to type answers. However, unlike with a paper form, it is difficult to see this information side by side, as some boxes close while others open and there is presently no option at the end to “review all information.”
Five Steps You Can Take to Try and Mitigate Express Entry Misrepresentation
1. Know when to hold them, know when to fold them – if information comes up that could be significantly erroneous consider declining ITAs and not submitting E-APRs until that information is corrected.
2. Gather the evidence up front- Unfortunately (or fortunately), lawyers now have to serve as both legal advisors and information auditors. An applicant can fill out a paper-based survey, swear on their lives, but until they have a letter from the employer stating X is X, it is nearly impossible to confirm this. Even though requirements are at the backend, try and get them done on the front end.
3. Follow-up with CIC during process – Whether you are an immigration rep or applicant, it is important to follow up with CIC throughout the process. We know that CIC has admitted that the algorithms and forms aren’t perfect, that changes to the forms are pending, and has even recommended that Applicant’s put in covering letters to explain discrepancies.
4. Write a covering letter prior to submitting E-APR –The value added that reps used to provide prior to Express Entry was submitting a covering letter explaining discrepancies. That should not change and may be useful when an Officer is looking at the error down the road.
5. Have a record of everything – It is too risky these days not to have a paper trail (again whether you are a rep or applicant), of what you have corresponded to the client, what you have corresponded to CIC, and the documents that have been submitted. Just because the process has moved virtually, it does not eliminate the need to have paper evidence of this correspondence and communication. If necessary, take tons of screenshots!
Hope this has somewhat helped 🙂
Most of the Canada Korea Free Trade Agreement (CKFTA) has been in force since January 1 of this year. However, in the few months that it has been implemented it appears very little is know or has been written about its potential for facilitating movement between our two countries.
In this first installment, I will be looking at the specific category of “management trainee on professional development” , an definition and category that is distinguishable from the North American Free Trade Agreement (NAFTA) upon which much of the CKFTA is based.
Article 12.8 defines “management trainee on professional development” as follows:
management trainee on professional development means an employee who has a Bachelor or Baccalaureate degree or who has a license at a professional level concerning the intra-company activity, who is on a temporary work assignment intended to broaden an employee’s knowledge of and experience in a company in preparation for a senior leadership position within the company;
There are a few key words in the definition.
- The individual must be an employee,
- The individual must have a bachelors license at a professional level
- There is an intra-company activity
- The work assignment must be temporary
- broaden knowledge and experience in a company in preparation for a leadership position within the company;
Annex 12-A: Temporary Entry for Business Persons – Section C – Intra Company Transferees is the first and only mention of management trainee in an application form.
It provides that :
8. Each Party shall grant temporary entry and provide a work permit or visa to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or an affiliate or a branch thereof as an executive or manager, a specialist or a management trainee on professional development, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission.
The significance of having “management trainee” included in an Intra-Company Transferee (“ICT”) section is a departure from a work permit category that has gotten harder and more difficult to apply for. The benefits of an ICT are clear. These applicants are exempt from having to obtain a Labour Market Impact Assessment.
In Operational Bulletin 575 – June 9, 2014, Citizenship and Immigration Canada introduced changes making the Specialized Knowledge category more rigorously defined. Under the current ICT regulations, the worker must possess “knowledge at an advanced level of expertise” and “proprietary knowledge of the company’s product, service, research, equipment, techniques or management.”
The only other options are “Executive”, “Senior Manager”, or the even more difficult to obtain “Significant Benefit” category. All of the above options seem more akin to Senior level “experts” rather than younger Korean trainees.
While under the new Express Entry system, they will have difficulty obtaining permanent residency under the Canadian Experience Class or Federal Skilled Worker program for the work experience they gained as a management trainee, it opens up pathways to permanent residency by virtue of the significant Canadian work experience gained. For example, Provincial Nominations and LMIAs are arguably easier to obtain with previous Work Experience with the same Employer supporting the nomination/application.
It is also important to note that both Canada Korea pledge not to require labour certification tests (i.e a LMIA) or impose or maintain a numerical restriction (i.e. a cap) on applicants to this section.
Potential Strategy – Business perspective
A start-up Korean company looking to do business in Canada may be interested in incorporating in Canada to create a vehicle for their management trainee. They may even think about bringing over a senior exec (as an ICT) to begin operations. A trainee, of course, cannot train by themselves and the presence of another Korean senior exec or, even better, Canadian executive and manager would be an asset down the road.
It may also be useful to have the management trainee obtain a Canadian undergraduate/graduate degree, something that will give them significant leverage in the case they wish to pursue a more permanent option down the road. Of course, such a process would enable the student to obtain a Post-Graduate Work Permit for three years, and there would be no need to obtain an ICT for the present time being.
However, down the road, if the Korean Foreign National student chooses to return to Korea to work for a few years or for those Foreign-educated Korean students who do not have Canadian work/study experience, the management trainee option may open up significant doors that otherwise would have been closed.
Canada is eager to provide the experience to future Korean management and leaders. It is up to the Korean companies now to take advantage.
This is a regular service I provide to the lawyer’s at Larlee Rosenberg, Barristers and Solicitors. A brief summary (meant for a five minute update) on everything that has changed in the past month in the field of Canadian Immigration Law.
Changes in Canadian Immigration Law are spread across multiple sources. The Government/CIC releases operational bulletins, program delivery updates, and new Ministerial Instructions amending the laws and regulations of Canadian Immigration Law.
Again, it is to mentioned that the below information is NOT to be relied upon as an accurate summary of the changes or of the law as it stands and readers interested in learning more should follow the links and conduct independent research to verify the information contained herewithin.
A. Operational Bulletins
B. Program Delivery Updates
1. Update to Express Entry instructions relating to certain economic permanent residence programs (February 5, 2015) – http://www.cic.gc.ca/english/resources/tools/perm/express/refuse.asp
Application of A11.2 (New)
- Citizenship and Immigration Canada (CIC) clarification under 11.2 that Comprehensive Ranking Score (CRS) must be met at time where applicant issued Invitation to Apply (ITA) and when electronic Application for Permanent Residency (e-APR) is received by CIC;
- Officer’s must determine that qualifications are corroborated with supporting documentation and that information in Express Entry profile has not materially changed to degree that Applicant would not have been issued ITA;
- Program officer reviews program requirements and misrepresentation;
- Info from EE will be updated into e-APR, if change in info must update in eAPR. Info locked upon e-APR;
- Birthday after ITA may lower CRS but officer can issue s.25.2 public policy exemption;
- Misrepresentation can be found where discrepancy between Express Entry profile and e-APR not result of legitimate change;
- Change in circumstance after e-APR can only lead to application refusal if determined change occured before e-APR submitted OR applicant no longer meets minimum requirements of program to which they are applying (i.e. birth of new baby and settlement funds);
- Change in family member – requires new Additional Family Information form + applicable fees;
- Settlement funds – not included in CRS but affect Minimum Eligibility Criteria (MEC) for Express Entry (Federal Skilled Worker and Federal Skilled Trades Program). Failure to declare child but later declares child exists- can be assessed under A11.2;
Intake: Applications received on or after January 1, 2015 for permanent resident programs subject to Express Entry (Updated)
- ITA recipients including Provincial Nominee Program (PNP) applicants required to submit their application for permanent residence electronically per R12.01(1);
- Applicants can apply to multiple programs subject to cost recovery fees;
- Lock-in date for age is e-APR. PNP lock-in date (usually when app for nomination received) trumps e-APR lock in-date. Change done by processing officers via Global Case Management Software (GCMS);
- Incomplete applications refunded;
- Document checklist – generic and personal;
- Translation of documents – requires certified translation of all non-English/French with original copy of doc;
- Medical examination confirmation – upfront medical report (in exceptional circumstances only proof of medical appointment scheduled/letter of best efforts) for PA, spouse/common law partner, and dependent children including non-accompanying children;
- Police Certificates – issued within three months prior to submission of e-APR for each country (except Canada) where individual lived for six or more months in a row;
- Passport biopage – clear and legible copy for principal applicant, spouse/common law partner, accompanying dependent children;
- Proof of work experience – for each work experience declared – letter for employer; Copies of T4 tax slips and, Notice of Assessments, and Option C printouts by the Canada Revenue Agency for period of work experience; For periods of self-employment – articles of incorporation/documentation from third-parties/payment details for principal applicant and spouse/common law partner;
- Proof of funds – official letters from financial institutions;
- Proof of Common law union/cohabitation;
- Marriage, divorce, legal separation, death certificate, adoption certificate if applicable;
- Proof of relationship to Canadian relative – citizenship/pr card, evidence reside in Canada (six months prior); birth certificate if Canadian children;
2. New instructions regarding to the Immigrant Investor Venture Capital class (February 10, 2015)
- New instructions clarify how IVC applications are to be processed. Two stage completeness check. Due diligence and travel history required in second stage;
- Language requirements currently set at 5 CLB (in all areas), but can change according to CIC requirements;
3. New instructions on employer-specific work permits with Labour Market Impact Assessment exemptions (February 13, 2015)
- New requirement as of February 21, 2015 which requires employers who provide job offers to LMIA-exempt foreign nationals to submit job offers directly to CIC using form and electronic system provided and to pay new fee;
- Pay fee- take receipt number to fill out Offer of Employment to a Foreign National Exempt from a LMIA form [IMM 5802] and then submit via email.
- As per R200(1)(c)(ii.10 provides officers authority to request information from employers without having to use foreign national applicant as conduit for that request;
4. International Mobility Program – Introduction of two new fees (February 20, 2015)
- $155 individual;
- $465 for group of performing artists and their staff (three or more persons);
- $230 employer compliance fee;
- $690 employer compliance maximum fee;
- $100 open work permit holder fee;
- Co-op work, NSERC and NRC Reseachers exempted;
5. Exemptions to the 12- or 36-month pre-removal risk assessment bar (February 24, 2015)
- Nationals of Libya exempt from 12 -month PRRA bar if PRRA decision made between February 20, 2014 and February 19, 2015;
6. Change to the email addresses of the International Mobility Worker Units, formerly the Temporary Foreign Worker Units (February 26, 2015)
- Toronto (serving Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Yukon, Northwest Territories and Nunavut)Toronto International Mobility Worker Unit
- Montreal (serving Quebec, Nova Scotia, Prince Edward Island, New Brunswick, and Newfoundland and Labrador)Montreal International Mobility Worker Unit
7. Update to the instructions related to oath of citizenship as a result of recent decision by Federal Court (February 27, 2015)
- Removed requirement that candidate must be seen taking oath of citizenship;
- Candidate must sign Oath or Affirmation of Citizenship (CIT 0049) form after they take oath of citizenship at citizenship ceremony;
C. Ministerial Instructions
Vol. 148-No. 9 – February 28, 2015
Regulations Amending the Citizenship Regulations; http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg1-eng.php
- Currently no authority under Citizenship Act or Citizenship Regulations to collect SIN numbers for purposes of exchanging information with CRA
- Regulations now enable CIC to advise and share information with CRA on tax filings
- Citizenship representatives need to be regulated by a professional body
- Regulations now create this body and also enable CIC to disclose to a government body any ethical/professional wrongdoing
- CIC/Minister may disclose this wrongdoing to the professional body
- Privacy Act provides barriers to CIC’s authority to share – information with other government bodies
- CIC has the express power to collect information from other government bodies
- Specifically, will work with EDSC, CBSA, and CRA
- Lost Canadians born before 1947 extended citizenship as well as the first generation; Adoptions before 1947 – extended citizenship; International adoptions – requirement that adoption cannot circumvent legal requirements for international adoption
- Accompanying persons at hearings with citizenship judges are unqualified and inappropriately obtaining information about process
- Individuals serving as accompanying persons must be over the age of 18, have adequate English/French skills, and cannot be themselves a pending Citizenship applicant.
Regulations Amending the Immigration and Refugee Protection Act;
- Concern that applicant misrepresenting income and residency in their applications
- Solution is to allow CIC to communicate directly with CRA to obtain taxpayer information through a system called the Income Verification Program, which requires the social insurance number (SIN) of individuals regarding whom information is sought
- Amendments enable CIC to collect SIN of applicants who wish to renew or replace permanent resident cards, obtain permanent resident travel documents, or sponsor their parents and grandparents as member’s of the family class
- Enable CIC to disclose the SIN of applicants to the CRA, and once information-sharing arrangement established make Income Verification Program accessible to CIC
- Allows for tracking of individual’s who may be unlawfully receiving benefits and services
- Ensure accuracy of applicant’s information, support measures as part of redesigned PGP program guaranteeing prospective sponsors are contributing to public services their sponsored family members are likely to use;
- Applications cannot be refused solely on the basis of non-disclosure of SIN, and eligibility still will have to be decided on the basis of the entirety of information provided.
- Changes are made R.137.1 of the Immigration and Refugee Protections Regulations
EXTRA Vol. 149 No. 1 – New Ministerial Instruction
- Application Deadline for Immigrant Investor Venture Capital Class extended until April 15, 2015
Vol. 149, No. 3 – February 11, 2015 – Rules Amending Federal Courts Immigration and Refugee Protection Rules
- New JR forms – make sure you are using updated versions (available on link above)
My Value Proposition
My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.
You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.
I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.
I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.
I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.
I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.
I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.