Borderlines Podcast Episode 8 – Lobat Sadrehashemi on whether Maryam Monsef’s Canadian citizenship could be revoked.

On the 8th podcast episode, Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and I to discuss issues in Canada’s citizenship revocation and refugee determination processes.  The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

Sorry about the sound quality at some points in this episode. We’re still getting the hand of this equipment.

 

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

 

 


IRCC Clarifies Non-Compliance in the International Mobility Program

It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be.

Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP. 

Breaches that Occurred Before December 1, 2015

It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015.  The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same.  

The Administrative Monetary Penalty Regime

Under IRCC’s AMP regime, employer non-compliance is divided into three types of violations.  

Type A violations include where an employer:

  • is unable to demonstrate that any information that it provided in respect of a foreign national’s work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
  • did not retain document(s) that relates to employer compliance during a period of six years, beginning on the first day of the foreign national’s employment
  • did not report at any time and place specified by IRCC to answer questions and provide documents during an IRCC inspection of the employer’s compliance with the IMP;
  • did not produce required documents during an IRCC inspection; and
  • did not attend an IRCC inspection, nor give all reasonable assistance to the IRCC officer conducting the inspection.

Type B violations include where an employer:

  • did not comply with federal and provincial laws that regulate employment;
  • did not comply with federal and provincial laws that regulate the recruiting of employees in the province in which the foreign national works; and
  • did not provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment.

Type C violations include where the employer:

  • was not actively engaged in the business in which the offer of employment was made; and
  • did not make reasonable efforts to provide a workplace that was free of abuse.

Once IRCC determines which type of violation an employer’s violation falls under, IRCC will assign points under the AMP regime based on the employer’s compliance history and the severity of the violation.

Points for the employer’s compliance history are calculated as follows:

Compliance History
Criteria Points
Type A and B violations, first violation 1
Type A, second or subsequent violation 2
Type B violation, second violation 2
Type C violation, first violation 2
Type B violation, third or subsequent violation 3
Type C violation, second violation 3
Type C violation, third or subsequent violation 4
 

Assessing the Severity of a Violation

Points for the severity of the violation are calculated as follows:

Severity of the Violation
Criteria Points
The employer derived competitive or economic benefit from the violation. 0 – 6
The violation involved abuse of a foreign national. 0 – 10
The violation negatively impacted the Canadian labour market or the Canadian economy. 0 – 6
The employer did not make reasonable efforts to minimize or re-mediate the effects of the violation. 0 – 3
The employer did not make reasonable efforts to prevent recurrence of the violation. 0 – 3

In considering whether the employer derived competitive or economic benefit from the violation, IRCC considers the economic gain derived from non-compliance (total gain to the employer), the money that the employer saved from non-compliance with program requirements, and whether the employer’s practices (led to a competitive advantage over other employers who were following IMP rules.

Examples of economic gain include:

  • significant underpayment or non-payment of foreign worker wages as well as wages for overtime for an extended period of time; and
  • an employer refusing to pay required benefits (e.g., health benefits/transportation costs) as outlined on the offer of employment.

Examples of competitive benefit include evidence that an employer won a bid or contract by underpaying foreign workers.

In considering whether an employer’s violation involved abuse of a foreign national, IRCC will assign points where abuse actually occurs.  IRCC will assign lower points where once the abuse was discovered, the employer was responsive in obtaining assistance for the foreign worker (i.e., notifying police or health care professional), the employer provided training to staff to prevent reoccurrence; or the employer developed policies and procedures that address situations of abuse in the workplace (e.g., steps to be taken if an employee or supervisor is aware of experiencing abuse).

In considering whether the violation negatively impacted the economy, IRCC will consider whether the employer’s actions resulted in a foreign national completing work that did not warrant a Labour Market Impact Assessment (“LMIA“) exemption.  Higher points will be assigned where the employer did not take steps to rectify the situation once it determined that it should have obtained a LMIA. 

 

Calculating the AMP

IRCC adds the number of points based on the employer’s compliance history and the severity of the violation to determine the AMP.  In calculating the AMP, employers are divided into “large businesses” and “small businesses.”  

A “small business” is any business, including affiliated entities, that have fewer than 100 employees or less than $5,000,000 in annual general revenue.

For Type A violations, the size of the AMP is as follows:

Type A
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 500 750
3 750 1000
4 1000 2000
5 4000 6,000
6 8,000 10,000
7 12,000 20,000
8 20,000 30,000
9 or 10 30,000 45,000
11 or 12 40,000 60,000
13 or 14 50,000 70,000
15 or more 100,000 100,000

For Type B violations, the size of the AMP is as follows:

Type B
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 750 1,000
3 1,250 2,000
4 3,000 7,000
5 7,000 12,000
6 12,000 20,000
7 20,000 30,000
8 35,000 45,000
9 or 10 50,000 60,000
11 or 12 60,000 70,000
13 or 14 70,000 80,000
15 or more 100,000 100,000

For Type C violations, the size of the AMP is as follows:

Type C
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 1,000 2,000
3 5,000 10,000
4 10,000 20,000
5 15,000 30,000
6 20,000 40,000
7 35,000 50,000
8 45,000 60,000
9 or 10 60,000 70,000
11 or 12 70,000 80,000
13 or 14 80,000 90,000
15 or more 100,000 100,000

In addition to fines under the AMP, the number of points that an employer receives determines the ban length as follows:

Total number of Points Type A Violation Type B Violation Type C Violation
0 to 5 None None None
6 None None 1 year
7 None 1 year 2 years
8 1 year 2 years 5 years
9 or 10 2 years 5 years 10 years
11 or 12 5 years 10 years 10 years
13 or 15 10 years 10 years 10 years
15 or more Permanent Permanent Permanent

Where an employer fails to comply with multiple conditions, each unjustified failure to comply is treated as a separate violation.  As well, violations of a single condition that involve more than one foreign worker will be treated as separate violations for each foreign worker affected. For conditions that have separate elements, a failure to comply with each element that is not justified will be treated as a separate violations.

As the size of the AMP can soar dramatically depending on the number of foreign workers involved and the number of condition(s) breached, the maximum AMP that IRCC can impose is $1,000,000.00 for a breach.  As well, the total AMPs imposed on a single employer cannot exceed $1,000,000 in the one-year period preceding the date of the final determination.

Voluntary Disclosure

If an employer voluntarily discloses non-compliance, then IRCC, at an officer’s discretion, may reduce the number of points, depending on the circumstances.

Warning Letters 

When IRCC determines that total points of an employer’s non-compliance are fewer than two, IRCC will issue a warning letter to the employer.  Warning letters count as violations for the purpose of calculating points on future violations.

Best Practices

As of writing there is one employer listed on the IRCC website for having not complied with the IMP. The consequence to the employer was a $750.00 fine.  It is anticipated that there will be many employers subject to the AMP in the future. The regime is still new, and the rigidity with which IRCC assesses compliance within the IMP is still being developed.  In the meantime, it is imperative that employers completing their employer compliance portal job offers understand the terms and conditions that they are attesting to complying with.

 




Free trade agreements help those who want to work in Canada, but the Trump presidency could impact Americans

On Oct. 30, 2016, Canada and the European Union signed the Comprehensive Free Trade Agreement (CETA), which, amongst other things, will make it easier for European Union citizens to work in Canada without their employers first needing to obtain labour market impact assessments (LMIA).

CETA is only the latest free trade agreement that Canada has signed.  One of the first steps that a foreign national who is interested in working in Canada should do is determine whether their home country has signed a free trade agreement with Canada. If so, they should check if the agreement encompasses their specific area of employment.

LMIA vs. free trade agreements

The main benefit of a free trade agreement encompassing one’s employment is that the person’s potential Canadian employer does not need to first obtain a positive or neutral LMIA prior to the foreign worker being able to obtain a Canadian work permit.

LMIAs can be a very cumbersome process. They generally require that an employer conduct domestic recruitment, meet prevailing wage requirements, complete numerous application forms, enter into a transition plan, and pay a $1,000 per foreign worker application fee. For many employers, obtaining LMIAs is simply too great an obstacle to employing foreign nationals in Canada.

It is much easier for employers to employ workers who are encompassed by free trade agreements. Employers must simply enter information about the proposed job offer into the Immigration, Refugees and Citizenship Canada website, pay a $230 employer compliance fee and provide a written job offer to the prospective employee.

Free trade agreements

As of writing, Canada has free trade agreements that contain immigration provisions in force with the United States, Mexico, Chile, Peru, Colombia and South Korea.

The North American Free Trade Agreement (NAFTA) is a free trade agreement between the United States, Canada and Mexico. It provides that Mexican and American citizens can obtain three-year work permits (with unlimited extensions) if they are coming to work in Canada in one of 63 skilled professions, including accountant, computer systems analyst, economist, engineer, graphic designer, management consultant, mathematician, scientific technician, pharmacist, psychologist, registered nurse and teacher.

I once represented a Canadian design company that was debating between either hiring a Mexican or a British engineer. They had assumed that it would be easier for the company to hire the British person. However, because Canada does not actually have a free trade agreement with the United Kingdom in force (yet), it was actually much easier to hire the person from Mexico. The company decided to go with to the Mexican engineer.

The Canada-Chile Free Trade Agreement is substantially the same as NAFTA in regards to foreign workers, while Canada’s free trade agreements with Colombia and Peru are far broader than NAFTA. Colombian and Peruvian professionals can work in any skilled position in Canada for three years (with no limits on extensions), except for certain health, education, social services and cultural industries. As well, a wide range of technicians can work in Canada without LMIAs, including engineering technologists, certain trades supervisors, chefs, carpenters, mechanics, etc. Indeed, for the foreseeable future, it will likely be easier for a Canadian employer to employ a Colombian or Peruvian then a citizen of any other country.

Both the Canada-Korea Free Trade Agreement (CKFTA) and CETA adopt a different approach to the entry of foreign workers. Both require that skilled foreign workers be entering Canada as either contract service suppliers or independent professionals. South Koreans can get three-year work permits, while European Union citizens can get one. When the CKFTA came into force, many South Koreans who otherwise might not have been able to extend their Post-Graduate Work Permits were able to continue to working in Canada; given the wording of CETA, it seems like the same will be true for them.

Countries under GATS

In addition to the above free trade agreements, Canada is a signatory to the General Agreement on Trades and Services (GATS). Under GATS, citizens whose country is one of the 164 members of the World Trade Organization can obtain a 90-day work permit to work in Canada as an engineer, agrologist, architect, forestry professional, geomatics professional, land surveyor, urban planner and senior computer specialist.

Upcoming agreements

Finally, Canada is also a signatory to the Trans-Pacific Partnership, although it has not yet been ratified. If Canada does, then most Australian, Chilean, Japanese and Mexican skilled workers will be able to work in Canada on up to one-year work permits, which can be renewed. Most Malaysian managers and professionals will be able to as well.

Although the United States, New Zealand and a few other countries are also signatories to the TPP, those nations decided to not facilitate the entry of Canadian workers, so Canada will not be providing those nations’ citizens any new LMIA exemptions.

The Trump effect

At this point, it is necessary to discuss the consequences of the election of Donald Trump as the next president of the United States.  If there is one thing that Trump has been consistent on during the past several decades, it is that he loathes free trade agreements. Trump has promised to not ratify the TPP, whose future is now uncertain.  He has also promised to either restrict NAFTA or to even outright withdraw the United States from it.

Perhaps the best example of how significant free trade agreements can be in an immigration context is that since the election of Donald Trump, our office has received numerous phone calls from concerned Americans currently in Canada wanting to know what will happen to their ability to continue working here if Trump fulfills this promise.

How to apply

So, how can one determine if they’re encompassed by a free trade agreement? The best way to do this is to search “IRCC Free Trade Agreements” on any search engine, and to then click on the link that says “International Mobility Program: International Free Trade Agreements.” This is an IRCC webpage that provides information on the foreign worker provisions of all free trade agreements, including documentary requirements.

Understanding the material on this website can often be the difference between a long and cumbersome process versus a straightforward one, and even becoming a foreign worker and not.


Substituted Evaluations for Federal Skilled Worker Applicants [Updated]

There is a myth amongst potential Federal Skilled Worker Program applicants that their application is guaranteed if they can get 67 points. This is not true for several reasons, including the possible use of substituted evaluations.
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Government of Canada To Abolish Conditional Permanent Residency in 2017

On October 29, 2016, the Government of Canada announced that it would be abolishing the conditional permanent residency regime currently in place in the Family Class and the Spouse or Common-Law Partner in Canada Class.

Since October, 2012, conditional permanent residency has applied to individuals who are the spouse, common-law, or conjugal partner of their sponsor for two years or less when they submit their sponsorship applications and who do not have children in common with their sponsor when they submit the sponsorship applications.  Conditional permanent residents are required to cohabit in a conjugal relationship with their sponsors for a continuous period of two years after the day on which they become permanent residents.  If Immigration, Refugees and Citizenship Canada (“IRCC“) determines that conditional permanent residents have breached the condition, then IRCC will declare them inadmissible to Canada, and removal proceedings will be initiated.  An exception to this is where there is abuse.  Conditional permanent residents are able to appeal such decisions to the Immigration Appeal Division, which can consider humanitarian & compassionate considerations.

From 2013-2015, 58 218 spouses and partners along with their children were admitted to Canada as conditional permanent residents. This represented approximately 42% of admissions of spouses, partners, and their children within Canada’s family reunification programs.  During this time, 307 conditional permanent residents requested an exception to the requirement to cohabit with their sponsor due to abuse or neglect. Approximately 80% of these requests were approved. 

In my experience, the Canada Border Services Agency was very flexible in its application of the abuse exception, and was very reluctant to dismiss someone’s claim that they had suffered abuse.

In the Gazette, the Government of Canada has now announced that after four years it is unclear whether or not conditional permanent residence has had its intended impact of deterring non-genuine sponsorship applications, and that there has not been any conclusive trends in a reduction of marriages of convenience. The Government of Canada did determine, however, that data for the same period indicated that a number of sponsored spouses likely suffered abuse and neglect before they were granted an exception to the cohabitation requirement.

As the Government of Canada further notes in the Gazette:

It is important to acknowledge that, in repealing conditional permanent residence, it is possible that some foreign nationals who may be currently deterred from misleading Canadians into fraudulent marriages would attempt to use the family reunification program to seek entry to Canada with non-genuine intentions. It is possible that some of these applications may be approved, which could lead to significant emotional stress and potential financial liability for affected sponsors.

However, the proposed repeal of conditional permanent residence recognizes that the majority of relationships are genuine, and the majority of applications are made in good faith. Eliminating conditional permanent residence would facilitate family reunification, remove the potential increased vulnerability faced by abused and neglected spouses and partners, and support the Government’s commitment to combatting gender-based violence.

It is also important to note that the Liberals appear to be retaining two of the other changes that the previous Conservative Government of Canada made to address marriage fraud.  First, applicants in Canada’s family reunification programs must continue to demonstrate that their marriage is both genuine and was not entered into primarily for the purpose of immigration, whereas previously they only had to demonstrate either factor.  Second, the five-year bar on sponsorship which requires that sponsored spouses or partners must wait five years from the day they are granted permanent resident status in Canada before they themselves are eligible to sponsor a new spouse or partner remains in place.

In short, while the Liberals are getting rid of the Conservative change that was the most difficult to administer (because of the complexity involving allegations of abuse) and the most controversial (because why should a genuine marriage breakdown that could subjectively not be foreseen at the time of marriage lead to deportation), it cannot be said that the Liberals are going soft on marriage fraud, or that they are completely setting aside the Conservative reforms.