Provincial Nomination Does not Guarantee Permanent Residence

Applicants who have been nominated by a province under the Provincial Nomination Program are not guaranteed permanent residence.

According to statistics from a Citizenship and Immigration Canada CD that is distributed to practitioners, the total acceptance rate for Applications for Permanent Residence as a Member of the Provincial Nominee Class is 97%.  Almost all embassies show acceptance rates of above 95%.  The exceptions to this are Beijing (87%), Colombo (89%), Islamabad (92%), Seoul (94%), Berlin (93%), Kiev (94%), Moscow (92%), Rome (80%), Warsaw (91%), Mexico City (92%), and Sao Paulo (94%).

The reasons for the rejections vary from criminal inadmissibility to medical issues.  The issue of fraud is also becoming an increasing concern.

According to information obtained by an Access to Information Request and published in Lexbase, in 2009 the vast majority of refusals were for misrepresentation.  The misrepresentations were discovered as a result of field investigations and/or telephone verifications that uncovered fraud related to one of the requirements under a Provincial Nomination Program.  82% of such fraud cases related to employment, 9% related to education, and 6% related to financial statements.

Interestingly, the embassy noted that a significant number of cases that were previously refused for misrepresentation were nominated again by the same province after the two-year inadmissibility ban expired.

In any event, and perhaps most importantly for applicants to the Beijing embassy, Provincial Nominee applications are now the most time consuming cases in the economic class for that embassy.

Rumana Monzur Issued a Temporary Resident Permit

Macleans is reporting that Rumana Monzur, the UBC international student that was brutally assaulted and blinded when she was visiting her home country of Bangladesh, has been issued a Temporary Resident Permit to return to Canada.  The article states:

The University of British Columbia student who was blinded by her husband during an attack in Bangladesh will return to Canada on Tuesday. Rumana Monzur has been granted a temporary resident permit by Immigration Minister Jason Kenney. Because she will not be studying again right away, a student permit was inappropriate, reports Postmedia News.

Women around the world have rallied around the master of political science student as a symbol of how women sometimes struggle to be allowed to study. UBC officials say they have raised more than $35,000 toward Monzur’s expenses while she lives with her father on campus and recovers from the June 5 attack. She will receive care from the school’s department of ophthalmology. It’s unclear whether her five-year-old child will come to Canada. The husband is in a Dhaka jail awaiting trial.

The issuance of the Temporary Resident Permit demonstrates the use of human discretion in the implementation of Canada’s immigration laws to obtain a positive outcome.

As a result of her attack, Ms. Manura is no longer able to study in Canada.  Her study permit, and her corresponding temporary resident status, should have been nullified, and a rigid approach to Canadian immigration law would have seen her denied entry back into Canada.

The issuance of the Temporary Resident Permit, however, was a highly discretionary saving grace that allowed Ms. Manura to return to the University of British Columbia to seek medical treatment.  Catherine Dauvergne, the senior adviser to UBC President Stephen Toope, has announced that $35,000 has been raised in support of Ms. Manura.

So kudos to Jason Kenney for issuing the Temporary Resident Permit which allowed Ms. Manura to return to a community which has embraced her, and kudos to my Alma Mater, the University of British Columbia, for its supporting her.


Intra-Company Transferees and Salaries

If you are a multi-national employer looking to transfer an employee to Canada what is the minimum that you should be forced to be that employee?  Is it the minimum wage the employee’s current country?  Is it the minimum wage in the employee’s future respective province?  Or should it be more?  Should it be on the higher end of what that employee’s position generally plays?  Or should anywhere in the acceptable range of salaries be permitted?  Does the fact that it is a transfer as opposed to a Canadian company hiring a foreign worker even matter?

These are the questions that we explore in today’s post.

The Intra-Company Transferee Program

A key feature of temporary foreign worker law is the delicate balancing act of protecting the Canadian labour market while ensuring that companies can hire the employees that they want.   The Canadian government has attempted to navigate this tight rope through the requirement that companies wishing to hire foreign workers first obtain a Labour Market Opinion confirming that the hiring of a foreign worker will not negatively impact the Canadian labour market.

There are several exceptions to this requirement, however.  In a previous post, I discussed the numerous alternatives to the  requirement that foreign workers and their companies obtain a Labour Market Opinion.  This post was ultimately published in Canadian Immigrant Magazine.

One of the exceptions to the Labour Market Opinion requirement is for Intra-Company Transferees (“ICTs”).  A foreign national working abroad for Company A can be transferred to a Canadian affiliate of Company A if that person is of a managerial or executive capacity, or has specialized knowledge.  Whether or not an employee possesses specialized knowledge is determined by analyzing numerous factors, including education, knowledge, experience, salary, relevant training, and supporting documentation.

A specialized knowledge worker would normally possess the following characteristics:

  • knowledge that is uncommon (i.e., beyond that generally found in a particular industry and within the company);
  • knowledge that has been gained through extensive experience and is difficult to acquire in a short period of time;
  • difficulty to train another worker to assume such duties;
  • the required knowledge is complex in that it cannot be easily transferred; and
  • a person possessing such knowledge would be in a position that is critical to the well-being or productivity of the Canadian employer.

The Thorny Issue of Wages

An area of the law that recently caused much confusion was what the salary requirement was for ICTs, if there was one at all.  Different visa offices appeared to have different standards.  Accordingly, many representatives assumed that there was no wage requirement.  Others assumed that the wage had to be within the Canadian range.  Some even speculated that the wage was standard was the same as for Labour Market Opinions.

A recent Operational Bulletin seeks to end the confusion.  Citizenship and Immigration Canada’s policy on the salary requirement for ICTs is that the ICT’s salary must be “realistic” in terms of Canadian wage-levels for the occupation concerned.  An ICT’s should “normally approximate” the average wage for the stated occupation in the specified geographical location while working in Canada.  Allowances, such as hotel and transportation, are not to be included in the calculation of overall salary.  Only allowances compensated in monetary form and paid directly to employees are to be included.

Although the Operational Bulletin states that salaries should “normally approximate” the average salary for a region, and that an application is not to be refused on the basis of salary alone, one would be wise to err on the safe side.

Tying it Together

In drafting a policy which provides that the ICTs salary requirements will generally be the same as for those who require a Labour Market Opinion, Citizenship and Immigration Canada has taken the clear position that while employers wishing to transfer an employee to Canada will benefit from not having to show that no Canadian could take the position, such employers will not be able to use the ICT to pay an employee less than what a Canadian counterpart would likely expect.   

Canada Still Welcomes Immigrants (加拿大歡迎移民)

Sing Tao newspaper recently published an editorial of mine stating that Canada still welcomes immigrants.  The article was a response to an article by another immigration lawyer stating the opposite.  The article was in Chinese, and stated that:

作者:穆偉士(Steven Meurrens)律師、王捷(實習律師)

關 於引進標準化語言考試,值得指出的是,聯邦技術移民和加拿大經驗類別不需要先找到工作,它們是基於該移民能夠立即找到工作的可能性而設立的類別。顯然,英 文或法文能力是某個人能否達到這一要求的關鍵因素,語言考試提供了測試的標準方式。但是,如果你已有工作安排,而對語言考試有顧慮,那麼對你來說可能有其 他更好的移民方式。
關於強制730天居住義務,須要注意的是它的目的是促進新移民對加國的經濟融入。舉個極端例子,它避免人們在獲得永久居民身分 後回到本國,直到退休才回來。五年中在加拿大境內居住兩年的義務,包括為加國公司在境外工作或陪同加國公民在境外旅行,並不是過於嚴苛。並且,和公眾所認 知的相反,移民部和移民部覆議庭經常以人道主義和同情因素作出豁免。
關於對入籍考試的更改,我曾經說過我認為這些更改非常無聊,但不是基於它們增 強一致性或減少多元文化。我的立場是不明白為甚麼要答對九成問題。和永久居民身分相比,國籍帶來可以永遠居住加國和投票的好處。我不理解關於加國歷史、地 理和體育的問題和這些好處有甚麼關係。我們容忍在加國出生的人在地圖上找不到自己國家,那又何必在這些無關緊要的事情上測試移民呢?
讓我們回到加 拿大如何歡迎移民的話題上來。過去幾年中,聯邦政府為國際留學生引進了校外工作簽證項目和畢業後工作簽證項目。獲得省提名移民的人數,因此有極大增長,省 提名項目在卑詩省是沒有語言要求的。加拿大政府採取措施打擊那些動輒騙取幾千加元費用的偽劣移民顧問。它取消了對普通台灣護照持有者的簽證要求。它還縮短 某些申請的受理時間。

For those that don’t read Chinese, the English version stated that:

Recently, some immigration lawyers have voiced concerns that the Canadian government no longer welcomes immigrants.  This must seem odd to those working at Citizenship and Immigration Canada, who in 2010 admitted a record number of immigrants as permanent residents and foreign students, and a near record number of foreign workers.

Three areas of repeated expressed concern are the recent amendments to the citizenship test, the enforcement of the 730-day rule for the renewal of a permanent residency cards, and the introduction of language tests to the Federal Skilled Worker Program and the Canada Experience Class.

In analyzing these changes, it is important to consider the broader issue of ensuring that people who immigrate to Canada successfully integrate economically into Canada.  As a recent study by the Fraser Institute reported, the 2006 Census showed that the incomes of people who immigrate to Canada are considerably less than those born here.  Many of the changes that have been introduced were done so to reduce this unacceptable disparity.

Regarding the introduction of standardized language tests, it is important to recognize that the Federal Skilled Worker Program and the Canada Experience Class do not require an offer of employment to immigrate, and are based on the likely ability of an immigrant to readily find work.  Obviously, the ability to speak English or French is a key factor in whether an individual can do so, and the language tests provide a standard way of measuring that.  But, if you do have a job offer, and you have concerns about the language test, then there are likely other, better, immigration programs for you.

Regarding the enforcement of the 730 day rule, it is important to note that it also exists to promote economic integration into Canada.  At its extreme, it avoids scenarios where people obtain permanent residency, and then go back to their home country only to return to retire.  Living in Canada for two-years out of five, which includes working abroad for a Canadian company or travelling abroad with a Canadian citizen, is not overly strict.  Furthermore, contrary to public perception, both CIC and the IAD routinely exempt people from the requirement for humanitarian and compassionate reasons.

Regarding the changes to the citizenship test, I have commented before that I think the changes are silly, but not because they enforce conformity or reduce multiculturalism.  My criticism of the citizenship test is that I do not understand what the point of ninety percent of it is.  Compared with permanent residency, citizenship has the added benefits of the permanent ability to reside in Canada, and the right to vote.  I don’t understand what questions about Canada’s history, geography, or sports have to do with either of those benefits.  We let people born in Canada who cannot locate their country on a map vote, so why are we testing immigrants on such irrelevant things?

But back to my main point of how Canada still welcomes immigrants.  In the past several years the Canadian government has introduced the off-campus work permit and the post-graduate work permit for international students.  It has greatly expanded the amount of people admitted under Provincial Nominee Program, which in British Columbia doesn’t have a language requirement.  It has taken steps to crack down on fraudulent consultants that bilk people out of thousands of dollars.  It removed the visa requirement for possessors of ordinary Taiwanese passports.  And it has decreased the processing times for certain applications.

So I have to disagree with some of my colleagues.  While its programs and systems are no where near perfect (but then when was the last time anything a government ever close to perfect?), the Canadian government seems to be just as welcoming to immigration as it ever was.

World Total Fertility Rates

I have previously written about Canada’s aging demographics.  Compared to most European nations, Canada’s population is aging slowly.  However, compared to the other anglophone nations, Canada fares poorly.  In my previous post I noted that:

Amongst anglophone nations, however, Canada’s low fertility rate – currently 1.6 – results in their being fewer children than in the United States (with a fertility rate of 2.1), Australia (1.8), and the United Kingdom (1.9).

Accordingly, if Canada is to maintain a comparable population demographic to other anglophone nations, it is going to have to rely on immigration.  I do not see any other alternative. After all, these numbers are extremely difficult to change, and to a certain degree are “locked in”. The number of 10-year olds in Canada in 2020 will be roughly the number of people born in 2010.  The only thing that will make it higher is immigration.

Zerohedge recently produced a chart which highlights the historic change in fertility rates.

As the chart shows, from 1950-1955 Canada’s fertility rate was actually higher than the United States.  However, by 2010-2015, it had fallen precipitously to below 2.0.  Indeed, most nations have witnessed a dramatic decline in fertility rates.

Updating the Embassy with New Information

People in possession of permanent resident visas who have not yet become permanent residents must inform Citizenship and Immigration Canada (“CIC”) if they have either become married, entered into a common-law relationship, gotten divorced, or ended a common-law relationship.  They must also advise CIC if a material fact relevant to the issuance of the visa has changed since the visa was issued. 

Although I always tell the above to clients, I often get the sense that it is treated like a throwaway statement.  The recent Federal Court decision of Mai v. Canada (Public Safety and Emergency Preparedness), 2011 FC 101, however, is a reminder of just how important updating CIC is.  

Mr. Mai (“M”) was born in Vietnam in 1982.  He father, a Canadian, sponsored him to immigrate to Canada in 2003.  At the time, M was single.  He obtained his visa and arrived in Canada in 2005. 

In the summer of 2004, however, he married his pregnant girlfriend.  Their child was born that fall.  M did not report either his marriage or the birth of his child to CIC during the processing of his application, nor upon the receipt of his permanent resident visa, nor upon his arrival to Canada. 

In 2006, M applied to sponsor his wife and child.  In his application to sponsor them, he declared that he and his wife were married in 2004, and that their son was born that same year. 

Not only did M’s sponsorship application fail, but the Canada Border Services Agency (“CBSA”) also initiated proceedings to have M removed from Canada for misrepresentation.

As I have noted in this blog several times, misrepresentation can apply to render permanent residents as well as foreign nationals inadmissible to Canada. 

Unfortunately for M, both the Immigration Appeal Division and the Federal Court accepted CBSA’s actions.

The message is clear: It behooves applicants to update CIC during the application process.