Express Entry

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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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Expressly Challenging: A Numerical Analysis and Three Takeaways from IRCC’s 2015 Express Entry Report

On April 1, 2016, Immigration, Refugee and Citizenship Canada (“IRCC”) released it’s Express Entry Year-End Report tracking the progress of its economic immigration management system, Express Entry, since its inception in 1 January  2015.

Acknowledging the program’s growing pains throughout the report, overall IRCC seems to  insist that Express Entry has met its objectives so far. In the report, IRCC writes:

Express Entry was designed with three main objectives in mind: 1) flexibility in selection and application management, 2) responsiveness to labour market and regional needs and 3) speed in application processing. Although there have been adjustments to the system during its first year and policy concerns expressed by stakeholders, Express Entry has met its expectations.

This report,  Express Entry Year-End Report (EN) is filled with very informative statistics as to how Express Entry has been operating so far.

In my mind there are (at least) three important takeaways that I will explore in this post:

#1 – English/French Language and Canadian Temporary Residency appear to be major assets for Express Entry

Currently, official language skills make their way into economic immigration in several ways.

First, as a baseline requirement, an individual who wishes to qualify for the Federal Skilled Worker program needs CLB 7+. Scores lower than this would make the applicant ineligible for assessment on the initial points grid. For the Canadian Experience Class. there is also a requirement that the Applicant meet the language requirements of CLB 5+ for NOC B and CLB 7+ fpr NOC 0, A positions.

As provided by IRCC:

If an applicant has work experience in both NOC 0, A or NOC B occupations, the applicant must satisfy the officer that they meet the minimum language proficiency threshold for the skill type/level in which they have obtained most (i.e., more than half) of their qualifying work experience [R87.1(2)(e)].

Once in Express Entry, language factors itself in up to 410 of the available 600 points (360 for most candidates). Those without strong language scores will inevitably be stuck in  a Comprehensive Ranking Score (“CRS”) range currently not being invited to Apply for Permanent Residency.

The report seems to concur with this theory. Looking at the top 10 source countries of citizenship for Express Entry, one can adduce that English/French language skills poke its way into the selection process.

The report listed the top 10 countries of citizenship for those who receive Invitations to Apply (“ITA”) allowing them to apply for permanent residency via an electronic Application for Permanent Residency (“eAPR”). You will note that 8 of the 10 countries listed have English or French as an official language.

Screen shot 2016-04-03 at 8.27.07 AM

Countries of residence also appear to follow a similar trend, with the added fact that a large majority of those successful in obtaining an ITA reside in Canada. These are individuals who can we deduce have first come to Canada, likely as temporary resident workers or students.

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I do wonder what percentage of these stats are skewed by the use of authorized representative portals but nonetheless it still suggests a key trend that language and Canadian residence matter.

Perhaps, the above stats change the way we as practitioners may want to advise those without Canadian temporary residency/work experience. Rather than suggesting that the client “do another language test and increase their scores”, there may be some benefit to crafting a short-term strategy (based on work or study) that could potentially lead to eligibility under the Canadian Experience Class. The added benefit is such a strategy would likely increase their possibility of obtaining a Labour Market Impact Assessment (“LMIA”) based offer of arranged employment or a Provincial Nomination.

You can also see this reflected in the fact that final decision processing for Canadian Experience Class is 1.3 months faster than for Federal Skilled Worker presumably due to the scrutiny required with overseas-based qualify work experience.

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#2 – Applications are being bounced more than refused and at a higher rate than one would expect

As I discussed in an earlier post commenting on the trends I was seeing with Express Entry incompleteness/refusals, the problem of bounced applications is a major barrier to applicants.

Express Entry applications can be bounced for a variety of factors. Some of the common ones are:

  • Missing police certificates or certificates not yet received (very prevalent due to change in rule requiring police certificates for countries resided in cumulatively for 6 months or more and well-documented FBI police certificate delays);
  • Insufficient letters of reference (often times challenge in getting references for old jobs or where old employers refuse to provide adequate letters);
  • Failure in properly uploading complete documentation; and
  • A11.2 findings where an applicant has had a birthday, a new child, forgotten/failed  to submit a document or new evidence that has now decreased their points etc.

This is just to name a few.

The 2015 report seems to confirm that bounced applications are a big problem for Express Entry;

Screen shot 2016-04-03 at 8.47.24 AM

If we go back to our overall chart for final processing, we see that out of the 16,491 applications finalized, 14,058 were approved and 2,433 were refused.  On the surface, this statistic does not look bad and accounts for a ratio of about 5.78 Approvals to 1 Refusal.

However, if we look at this other statistic from earlier in the report, the situation looks much more bleak.

Screen shot 2016-04-03 at 10.31.54 AM

This statistic tell us that out of the 37,424 applicants (21,562 applications received), 15,246 are in progress and 14, 058 have been approved. Doing simple math, we are left with 22, 178 applicants received of which only 16,491 were finalized as approvals/refusals. From this, we can deduce the bounce/incompleteness  rate to be somewhere in the neighbourhood of ([22,178-16491]/22,178) or 25.64%.

The consequences of a system where 1 out of 4  eAPR applicants are not even making it to a final decision (some perhaps through abandonment) are staggering. It means the system is not as intuitive as it can be and there is much room for improvement. It also means that Applicants may need more legal advice than they are currently seeking out for Express Entry.

 

#3 – The Backlog from Pre-Express Entry Continues to Exist and Eat Up Cap Space

If we return to the Conservative Government’s 2015 immigration levels plan, we can see how much of that space appears to have been made up of Express Entry.

In 2015, the projections were:

Screen shot 2016-04-03 at 9.38.17 AM

Assuming, just the low for now the projection was for 68,000 economic applicants to be granted permanent residency.

We know the actual number of 2015 Express Entry Approvals were 14, 058.

There are two possible conclusions from this. Either a majority of processing (79%) is still occurring on backlogged Canadian Experience Class/Federal Skilled Worker files from before January 1, 2015 or the Government has grossly missed its economic immigration targets for 2015.

In 2016, it now seems somewhat more understandable that the Liberal Government would reduce its target to 58,400 by 25,600. Perhaps Express Entry is indeed a system where promising less and delivering more may be the best strategy.

 

Conclusion

Many applicants and their representatives around Canada have been expressing their frustration with Express Entry. It appears that those frustrations are understandable. The old, the non-English speaking, even the slightly imperfect applicant is subject to either a low score or a bounced application.

With even lower projections in 2016 and no sense that the scores will be raised to unattainable thresholds, the only logical consequence is more refusals and bounced applications.

Applicants through Express Entry may want to think of pursuing dual intent (concurrent permanent and temporary) options or seek assessment under a provincial nomination program while Express Entry figures itself out. One of the strategies IRCC should employ, in addition to further educating applicants, is a secondary review/reconsideration mechanism.

Counsel for these Applicants should also be reviewing refusals more closely. Several of my colleagues have seen their Judicial Review practice increase quite significantly and many of these refusals/incompleteness findings are being overturned prior to the case ever reaching the Courts.

 

 

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Express Entry: Expressly Wrong on Older, English ‘Competent’ Economic Immigrants

Express-Entry-Tips

There is much that is good about Express Entry, the online application management system introduced by Citizenship and Immigration Canada in January 2015. Few can complain about the (so-far) expedited processing times and arguably even the program’s ability to scoop up the top, most qualified candidates. For all its glitches, Express Entry has helped modernize Canada’s previously broken first-come, first-serve paper-based system.

However, in my opinion there is something very bad – and in my mind, very misguided from a policy perspective, about Express Entry’s point system. I am speaking about the system’s unqualified prejudice against older migrants from non-English speaking countries. I believe this has negative consequences on our Canadian cultural mosaic and may even carry unintended economic consequences.

The Problem 

Express Entry’s point system awards to potential economic immigrants, allowing them to receive an Invitation to Apply (“ITA”) for Permanent Residence. In order to create a profile and enter the Express Entry applicant pool, applicants must first qualify for one of the three economic programs, the most popular of which are the Canadian Experience Class (“CEC”) and the Federal Skilled Worker (“FSW”) programs. Both programs have minimum language requirements in either English or French. For the CEC, the minimum language requirement depends on the classification of the skilled job for which the Applicant is claiming experience. For the FSW, performance on the required language tests above and beyond the minimum can increase one’s points towards their overall qualification for the program. For the most skilled positions under the CEC and for all FSW applicants, at least a “competent” level of English is required.

Only the FSW program considers age as a factor, although it is not a baseline requirement. Applicants under the age of 18 or over the age of 47 are awarded 0 points out of 12. As the overall point system is out of 100, for which 67 points is a minimum requirement, age is not a determinative factor for eligibility.

After meeting the basic requirements of one of eligible economic immigration programs, applicants are then scored according to the Express Entry’s Cumulative Ranking Score System (“CRS”). As 600 points of the maximum 1,200 points are allocated to having a valid job offer supported by a third-party employer either through a Labour Market Impact Assessment (“LMIA”) or a provincial nomination, a majority of potential applicants essentially compete within a 600-point system. As of the date of this article, a majority of the draws have been in the upper 400’s with several draws in the 500-700 point range. The lowest draw so far has been 450 points.

For Language and Express Entry, the English “competent” candidate earns an average of 64 points, assuming equivalency among their reading, writing, speaking, and listening sills. A candidate that is a “good” or “very good” user (keeping in mind that the later is a standard just below expert user/native speaker) is awarded an average of 116 points. In addition, these later candidates automatically increase their skill transferability (another important CRS factor) points adding anywhere from 16 to 50 points to their score depending on their education and work experience. It is therefore fair to say that applicants who are merely competent in English obtain 75 fewer CRS points then someone with greater (near native-speaking) competency.

From an age perspective, the effect on CRS points is even more pronounced. Under the CRS, a 45-year old applicant loses 110 points compared to a 20-29 year old applicant. Even a 40-year old applicant, with a spouse who could be much younger loses 60 points.

Consequentially, a competent English speaker (let us assume from a non-English speaking country) who is 40 years old, married with young children and who has a potential 25-year old working career in Canada loses 135 points right away.

To put it in perspective, even if the applicant obtains maximum scores in every other category they could only obtain a maximum 465 points out of 600, just 15 points above the lowest drawn score in 2015.

 

Not in Line Policy Research or Canadian Immigration’s Legislative Objectives

While the literature in this area is complex and varying in its results, it does suggest that Express Entry’s current policy on age and language is highly misguided.

A recent August 2015 Statistics Canada/CIC report suggests that language is not effective as a long-term economic-earning indicator.

This finding is not altogether surprising. In a 2012 article titled, “Language and Immigrant Labour Market Performance: What Does the Economics Literature Tell Us?” Canadian Economics Professor Mikal Skuterad asks whether it is reasonable to believe Canada can maintain current immigration levels and increase language criteria without sacrificing other desirable qualities of immigrants. In his piece, Professor Skuterad suggests that Canada’s emphasis on high language requirements may be too focused on short-term outcomes, and too neglectful of the importance of post-migration language training required via settlement services. In short, pre-migration language is an overemphasized indicator of economic success.

I would argue that age, while a long-term indicator of economic success according to the August 2015 CIC report, is overemphasized as a factor in Express Entry. Importantly, it is out of touch with economic realities. Our most recent studies of the issue in 2011 showed that even in Canada, where welfare and social services are readily available, the age of mothers at first birth was increasing towards record pace.

If we assume Canada is most desirable as a place of permanent residence for young families with the financial capacity to move and elementary/high-school aged children serving as a major impetus for the move, we should expect a high number of late thirties/early fourties applicants. Yet, this is the very group that Express Entry punishes through the prejudicial point system.

Overall, putting such a high emphasis on language or age of potential economic immigrants does not further the objectives of Canada’s legislated aims as stated in section 3 of Canada’s Immigration and Refugee Protection Act (the “Act”). The Act states:

Objectives — immigration

  • (1) The objectives of this Act with respect to immigration are
  • (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
  • (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Combined, I would argue that creating a point system those only benefits younger immigrants from English-speaking countries does not serve to maximize the social and cultural benefits of immigration. If anything, a program that discriminates against older, non-speaking applicants narrows our country’s definition of the ‘desirable immigrant’ and creates an unnecessary, disincentive for economic immigration. Furthermore, while I do not believe past studies have been done on this issue, I would argue that the economic and immigration mobility of the types of fluent, young immigrants Canada currently desires will lead many to eventually pursue opportunities as overseas ex-pats rather than as Canadian-resident taxpayers.

 

Where do we go from here?

There is some hope. The governing Liberals have promised it will be re-examine the point system and may allocate additional points to individuals with Canadian relatives. However, I don’t think that is enough. I think it is enough that a potential immigrant meets minimum language requirements. I also think the age of a potential immigrant’s spouse and children should be qualifying factors. The 45-year old father of three Canadian kids who will have a lifetime to pay it forward to the Canadian economy should not be perceived as too old for Canada.

However, clearly some points are missing. Should students who studied in Canada receive more points under Express Entry? Should potential immigrants with current jobs held on other form of work permits receive more points? Arguably so. Should the economic immigrant who has started his or her own business or invested in the business of his or her son or daughter receive some points? Should an economic applicant who has a spousal sponsorship application in process receive additional points to facilitate their own immigration process? I would think that all the above would make sense.

Express Entry has much room to improve. Change, on the issue of language and age, is

 

 

 

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Why is Express Entry So Tough on International Students?

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A common theme of many of my recent consultations has been the challenge many international students are experiencing as a result of Express Entry. I am finding more and more second and third-year international students asking me about best practices in planning their paths to permanent residency.

There are several reasons why this path is so difficult

1.  Meeting Basic Economic Immigration Program Requirements Tough for Many International Students

First, just to meet the basic requirement of either the Canadian Experience Class or the Federal Skilled Worker a year of skilled experience (at a NOC 0, A, B level) is required.

For the Canadian Experience Class (CEC), that work experience must consist of one year obtained within the past three years and cannot include work experience obtained while on a study permit (e.g. as a co-op student or during scheduled breaks). It also excludes time working as a contractor, an economic model growing increasingly popular for its Canadian tax-benefits to employers during the economic crisis. For newly graduated international students, who can be granted no more than three-year post-graduate work permits, obtaining that one-year of skilled work experience can be a tall order.

For the Federal Skilled Worker (FSW) Program, the one-year of skilled work experience can be in the past ten years, but that work experience has to have been continuous over a period of a year. Many international students have had to balance work and school, many taking part-time jobs that are not considered continuous under the FSW program requirements

2.  Express Entry Does Not Award International Students Favourable Points

Second, many of the points that are awarded for Express Entry that bring individuals over the threshold are awarded for language and work experience (or a combination of both). For example, under the skill transferability factors in part C for the Comprehensive Ranking Score (“CRS”) criteria, two or more years of Canadian work experience, two or more years of foreign work experiences, or CLB 9+ can double CRS scores in this caregory. Again, work experience is difficult to come by for young individuals and many international students (particularly from non-English speaking jurisdictions) may find it difficult to obtain the CLB 9+ that boost CRS scores

3.  Employers Will Be Hesitant to Pursue LMIAs for Skilled International Graduates

Third, Labour Market Impact Assessments (LMIA) for newly-minted international graduates are difficult to obtain. Holding a valid LMIA for a skilled position awards an Express Entry applicant 600 points and, as of this current date, guarantees them an invitation to apply for permanent residency. Many individuals after the expiry of a three-year work permit find that they require to obtain LMIAs in order to get a work permit that will allow them to work beyond their PGWP.

Unfortunately for them, in most circumstances employers will have to advertise the position to demonstrate that another Canadian cannot fill an international student’s shoes and do not possess equivalent qualifications. In this difficult job market, most non-managerial skilled positions will attract multiple candidates, many of whom are equally, if not, more qualified than the Canadian. Unless the candidate has a unique profile (that can’t include a third language in most cases, as a third language cannot be a job requirement unless it is mandatory for the position), it will be difficult to prove.

Finally, with CIC’s new employer compliance system which subjects Employers to sever administrative monetary penalties that can range up to the millions of dollars, the cost benefit of hiring an international student may not justify the associated compliance cost

4.  Many Skilled Worker PNP Programs Require “Several Years of Work Experience.”

In British Columbia, the BC Provincial Nomination Program Express Entry category, requires that an applicant have several years of related experience in the occupation. More recently, the BC PNP has come down more firmly on the requirement that several years is equivalent to at least two years. The challenge here is most International Graduates are given maximum three-year work permits. This essentially requires them to have two years of skilled experience in that particular NOC occupation. International students who start in entry level, low-skilled positions, such as bank tellers and customer service representatives will find this very difficult to achieve.

 Potential Tips for International Students

Unfortunately for international students, many of those looking for permanent residency two years into their post-graduate work permit will be limited to skilled worker categories. Individuals should begin planning their educational and work paths right away.

For example provincial nomination programs designed for international graduates become have become more important in today’s Express Entry environment. Here in British Columbia, the International Graduates Program (as of the date of this piece) is currently available only through Express Entry. Importantly, eligibility for this program requires applying within two-years of graduation.

While having to meet Express Entry requirements is a challenge, as described earlier, the 600 points provided by the nomination would counteract the low score issues.

Finally, the idea of pursuing further graduate studies prior to obtaining a PGWP may be more attractive. Further studies allow an individual to gain a key qualification that may differentiate them if a LMIA is required. It also may open up other options including post-graduate immigration streams, fellowships, and various professional positions under trade agreements, that could provide the crucial work permit required to get the necessary skilled work experience.

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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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