Sponsoring Relatives other than Spouses, Parents, and Children

Canadian immigration legislation provides that a Canadian citizen or permanent resident may sponsor their spouse, common-law partner, child, parents or grand-parents to immigrate to Canada.  It also provides that in certain circumstances a Canadian may sponsor another relative.

Section 117(1)(h) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is

a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father

(i) who is a Canadian citizen, Indian or permanent resident, or

(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor.

The following are key things to know about sponsoring relatives other than spouses, common-law partners, children, parents or grand-parents.

1. The Canadian sponsor must not have a spouse, common-law partner, child, parent or grand-parent that is either a Canadian citizen or one that they can sponsor. 

Indeed, when assessing such applications, Immigration, Refugees and Citizenship Canada (“IRCC”) will often ask applicants to provide detailed family trees listing all family members and to provide evidence as to whether a person’s parents and grandparents are deceased.

2. It does not matter if the Canadian sponsor is not close to, or estranged from, his or her parents. 

In Bousaleh v. Canada (Citizenship and Immigration), Justice Fothergill stated that although the results may seem unfair, it does not matter if a potential Canadian sponsor is estranged from his or her parents. The fact that they can legally be sponsored means that the Canadian cannot sponsor another relative instead.

3. There is uncertainty in the law as to whether a sponsor’s parents or grand-parents have to be deceased, or simply likely inadmissible to Canada. 

Traditionally, most people have interpreted Canadian immigration law as requiring that a Canadian may sponsor a relative only if they do not have any living spouses, children, or parents who they can sponsor.  However, the Federal Court in Sendwa v. Canada (Citizenship and Immigration) ruled that this is too restrictive.  The Federal Court found that the stated that the purpose and intent of paragraph 117(1)(h) of the IRPR is “to favour persons who do not have relations in Canada and have no possibility to sponsor any relations under other provisions.”  The Court went on to state:

In the present case, the Immigration Appeal Division held that the Applicant’s application was rejected simply because her parents were alive. The Immigration Appeal Division did not consider whether the Applicant would (even) be eligible (or in position) to sponsor her parents. As a result, the IAD’s decision is unreasonable.

In Bousaleh, Justice Fothergill certified the following question of general importance:

Does determination of a person’s eligibility to sponsor a relative under s 117(1)(h) of the Immigration and Refugee Protection Regulations, SOR/2002-227 require consideration of whether an application to sponsor a person enumerated in s 117(1)(h) has a reasonable prospect of success?

 


Retrospective Legislation

In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective.  This episode can be found here:

A link to this episode’s synopsis can be found here.

The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.

Continue reading “Retrospective Legislation”



Returning to Canada After Previously Overstaying

It is not uncommon for people who have previously overstayed in Canada to wish to return.  Many people worry that it will not be possible to do so. However, regardless of whether one previously overstayed but left Canada before Canadian immigration authorities discovered the overstay, or even if one was ordered to leave Canada, it is certainly possible and common that a Canadian visa office abroad will approve a visa to allow that person to return to Canada, despite the previous non-compliance.

The following is a reference letter that an applicant used in the case AlOmari v. Canada (Citizenship and Immigration). It is as a good example of the level of detail that should go into such a letter, and can serve as a useful reference for others.

In November 2015, I made the mistake of not renewing my study permit because I was not able to complete my flight training during the unstable weather conditions of the fall and winter seasons. This bad decision and judgment call is what led me to overstaying.

I could not leave until July 11, 2016 because I was required to remain with my wife and sisters who were actively studying. As outlined in the translated Saudi government scholarship rules, female students are required to travel and live with a male relative, such as a father, husband or brother. Leaving my wife and sisters would have led to them losing their scholarships, and ability to study.

I should have sought the assistance of a lawyer to discuss how I could extend my stay in Vancouver, even though I could not complete my flight training during the fall and winter seasons. My current lawyer informed me that I could have extended my stay in Canada as a visitor until I was ready to get back to my studies. I wish I knew that because it would have saved me and my family a lot of time, stress and grief over the past four months.

My wife and sisters were expecting to return to their studies in September 2016. However, the denial of my study permit and visa application has put their plans and dreams of completing their education in Canada at risk. They were unable to contact their schools in Vancouver, and postpone their classes until January 2017.

As you may know, I have been living and studying in Canada since April 2008, and this was the first time I failed to renew my status. This experience has taught me an unforgettable lesson, because my mistake has impacted the ability of my determined, ambitious, and hardworking wife and sisters to complete their English studies and to obtain undergraduate degrees from Canada.

I know clearly understand the rules for visitors in Canada, and the consequences of not following the rules. I understand that I must renew my status before it expires, and that overstaying could lead to the denial of future applications and it could lead to me being deported from Canada and to the denial of future applications and it could lead to me being deported from Canada and denied entry for a year. I have no intention of overstaying ever again, and I commit to returning to Saudi Arabia with my family at the end of our stay in Canada.

I also understand that I cannot study or work in Canada without the proper authorization and permits. I will not return to my flight training until I apply for and receive a study permit to do so. My plan is to take care of my children while my wife is studying, and to apply for a study permit around spring time. I am applying for a visitor visa at the moment because it takes less time to process than a study permit, and my wife and sisters are anxious to return to their studies in January 2017.

I apologize sincerely for my mistake, and I hope that you forgive me. My wife, sisters and I are praying to return to Vancouver together at the end of this month. We look forward to hearing from you as soon as possible, and I am available to answer any questions you might have.


The Post-Graduation Work Permit

Canada’s Post-Graduate Work Permit (“PGWP”) program allows international students who have completed certain Canadian post-secondary programs to obtain work permits after graduating.  The work permits are open, meaning that the graduates can work for any employer(s) in any Canadian province(s).  It is a fantastic program that enhances the competitiveness of Canadian post-secondary institutions internationally, and is normally an essential transitory step for international graduates looking to eventually obtain Canadian permanent residency.

However, every year there are many international students who mistakenly think that they will be eligible to participate in the program after graduating only to discover midway through their studies that they cannot.  It is accordingly very important that all international students in Canada understand how the PGWP program works.

Basis in Law

Section 205 of Canada’s Immigration and Refugee Protection Regulations provides the government with the authority to create programs to issue work permits to foreign nationals when it is satisfied that public policy objectives relating to the competiveness of Canada’s economy or academic institutions are met.  The PGWP is one of these programs, and detailed information about it can be found on the Immigration, Refugees and Citizenship Canada (“IRCC“) website here.

As the Federal Court has noted in numerous decisions (such as Osahar v. Canada), immigration officers can determine these requirements to be binding.

Eligibility and Validity

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

A PGWP’s duration will be equal to the length of the educational program that the international graduate completed, up to a maximum of three years.  Any completed program that is longer than two-years will result in a three-year work permit.  In other words, a two-year diploma and a four-year degree will both result in a three-year work permit.

It is important to note that it is the length of the program of study that is important, and not the actual time that it takes an international student to complete their program. For example, if a student enrolls in a program of study that is normally eight months in duration, but completes it in six months, then the student will be able to obtain an eight-month work permit after graduating. Conversely, an international student who takes two years to complete a one-year program will only receive a one-year PGWP.

There are complicated rules and scenarios for students transferring from one program to another, or completing multiple programs, that are beyond the scope of this article.  However, a particularly common one is that students who obtain a one-year degree or diploma from an eligible institution in Canada after having obtained, with the prior two-years, another diploma or degree from an eligible institution in Canada, may be issued a work permit for up to three years.  For example, if a student obtained a one-year diploma from the University of British Columbia in 2013, and then in 2015 obtained a MBA from the University of Toronto, then he would be able to obtain a three-year PGWP.

Graduates may submit their applications online, or, in certain cases at a Canadian port of entry or at overseas visa offices.  Students who have completed their program of study and who apply for their PGWPs are permitted to work in Canada while IRCC processes their applications, provided that they were indeed full-time students enrolled in eligible programs while they were studying, and that they did not exceed their authorized off-campus work periods while they were students.

Finally, unlike with international students, the spouses or common-law partners of PGWP holders are not automatically entitled to open work permits.  They will only be eligible if the PGWP holder obtains skilled employment, and can demonstrate this to IRCC by presenting an offer of employment as well as a copy of one or more pay slips.

Ongoing Complications

Students who complete a program of study granted by a non-Canadian institution located in Canada are ineligible to obtain work permits under the PGWP program.  However, students completing a program of study that has, as part of the program, an overseas component, such as an exchange, will be eligible as long as they earn a Canadian educational credential.

There are two further restrictions, or potential restrictions, to obtaining PGWPs that are currently the subject of litigation that potential international students and graduates should understand.

The first is that students participating in distancing learning programs, either abroad or in Canada, are ineligible to obtain PGWPs.  In 2015, this restriction generated considerable media attention, as IRCC refused the PGWP applications of an entire graduating class at a private post-secondary institution after IRCC determined that the institution’s program constituted online learning.  Some of these graduates have sought intervention from the Federal Court of Canada, and one of the questions before the court is whether there is a percentage of online courses threshold that must be met before IRCC can declare a program ineligible.  Until either IRCC or the Federal Court provides clarification on this matter, international students who wish to participate in the PGWP program should understand the possible negative consequences of enrolling in any online courses.

Second, recent graduates applying for PGWPs must ensure that they complete their PGWP applications promptly and properly.  With most work permits applications, if IRCC either refuses or bounces an application for incompleteness, then an applicant can typically apply for restoration of status within 90 days.  It is not clear, however, whether restoration is possible in the case of the PGWP because of the IRCC’s requirement that a recent graduate’s study permit be valid when they apply for their PGWP, although several Federal Court decisions seem to imply that it really is up to the officer.

Indeed, the PGWP has a surprisingly high refusal rate. During the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March was 40% or more. 


Work Permits for Post-Doctoral Fellows and Research Award Recepients

Immigration, Refugees and Citizenship Canada has a Labour Market Impact Assessment (“LMIA“) exemption for post-doctoral fellows awarded a Doctorate of Philosophy and research award recipients. The advantage of such an exemption is that a person can obtain a work permit without the need of the prospective employer to first test the Canadian labour market.

Post-doctoral fellows holding a Ph.D. or its equivalent

To qualify for a work permit under this LMIA exemption, the prospective foreign worker must:

  • have completed, or be expecting to complete shortly, their doctorate;
  • be working in a field related to that in which they earned, or are earning, their Ph.D.;
  • be the direct recipient of the award involving work and remuneration;
  • actively contribute to and benefit a Canadian research project;
  • demonstrate academic excellence or expertise in a field related to the particular work to be undertaken;
  • be working in a time-limited position that reflects the experience and expertise of the applicant and the role that they will play on the project;
  • have a significant role to play or value to add to the research project.
  • hold an official position or an affiliation or registration with a credible academic or educational institution or agency in their country of citizenship or residence.

The post-doctoral fellows can either be the direct recipients of theaward or be offered a time-limited position to undertake research on behalf of or as part of a team of researchers.

Awards

In order for a person to receive a work permit based on an award, the prospective foreign worker must have received an award that was:

  • given based on merit and academic excellence;
  • based on the result of a competitive assessment and review process.
  • not be primarily for recruitment or commercial purposes

The employer must be a credible Canadian academic or educational institution or agency, or a closely affiliated organisation

Approval Rates

As can be seen in the table below, the approval rate for these types of work permits is very high, and is typically over 95%.

 



LMIA Exemption for Francophones

Immigration, Refugees and Citizenship Canada (“IRCC”) has a program to facilitate the ability of francophone foreign workers to enter Canada.  The benefit of the program, called Moibilte Francophone, is that no Labour Market Impact Assessment (“LMIA“) is required.  This means that employers of prospective francophone foreign workers do not need to pass a labour market test in order to employ francophone foreign workers.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Here are some other key things to note about the program.
1. Recruitment through a francophone immigration promotional event coordinated between the federal government and francophone minority communities is no longer required. 
Previously, participation in Moibilte Francophone was restricted to prospective foreign workers recruited through government promotional events. This requirement, which the government interpreted incredibly broadly in any event, is no longer the case.
Previously, the program worked as follows:

2. Habitual French speaking abilities are required, but not for the job. 
To approve the work permit application officers must be satisfied that the foreign national’s habitual language of daily use is French.
Where the officer is not satisfied the foreign national’s habitual language is French, applicants may need to attend an interview or provide language results demonstrating an advanced intermediate level or above in French. An “advanced/intermediate” level is defined as Canadian Language Benchmark 7.
Importantly, the offer of employment in Canada does not have to require French language ability.
3. Applicants cannot apply at ports of entries. 
French citizens can typically apply for work permits at Canadian ports of entry. However, under Moibilte Francophone, initial work permits must be submitted online.
4. There is no corresponding program for anglophones seeking employment in Quebec.
The legal justification for providing preferential treatment to francophones intending to work outside of Quebec is based on s. 3(1)(b) of the Immigration and Refugee Protection Act (the “Act“), which states that one of the goals of Canada’s immigration system is:

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Although there is no legal reason why this LMIA exemption cannot also theoretically apply to anglophones seeking employment in Quebec, people awaiting an Operational Bulletin to this effect hopefully know how to hold their breath for a long time.

5. The goal is to increase francophone immigration. 

Mobilite Francophone corresponds with other advantages given to francophone individuals who are applying for permanent residency through Express Entry.

It is not hard to see why special programs are needed.

As the chart below shows, the percentage of immigrants of francophone descent outside of Quebec is around 1%.

FrancophoneImmigration