Assessing the Genuineness of a Work Permit Offer of Employment

Canada’s Immigration and Refugee Protection Regulations (the “IRPR“) states that a work permit application must be refused if an officer determines that the offer of employment is not genuine.

Section 200(5) of the IRPR states that in order to determine whether an offer of employment is genuine an officer should consider (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, (b) whether the offer is consistent with the reasonable needs of the employer, (c) whether the terms of the offer are terms that the employer is reasonably able to fulfill, and (d) the past compliance of the employer with federal or provincial laws that regulate employment.

Immigration, Refugee and Citizenship Canada’s (“IRCC“) guidelines contain extensive instructions to officers on assessing the genuineness of the offer of employment on a work permit application.

Actively Engaged

In order to demonstrate that an employer is actively engaged in the business an employer must do all of the following:

  • have an operating business;
  • provide either a good or a service; and
  • have a physical work location in Canada where the temporary worker will work.

The following are some red flags that can trigger an in-depth assessment of whether a company is actively engaged in the business.

  • the business information in the offer of employment raises concerns with respect to the organization’s active engagement in a business (such as being less than 1 year old);
  • there is negative publicly available information regarding the organization; and
  • previous work permit applications were refused because officers had concerns about whether an employer was actively engaged in the business.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Example of an employer actively engaged in the business

The owner of a high-end Japanese restaurant in Toronto would like to hire a Japanese sous-chef. His business has been open for 6 years and employs 36 people, including 8 foreign nationals.

An officer may be satisfied that the organization legally exists and has the ability to provide stable employment for the requested period because it does all of the following:

has been open for several years

already employs several people

provides food and drink in a physical space (that is, the restaurant)

Example of employer that may not be actively engaged in the business

The owner of a small Japanese “bento-box” delivery restaurant in Toronto would like to hire a Japanese cook. His business has been open for 5 months and employs 2 other people. He cannot provide the officer with T4s (his business is too new), nor can he provide a lease because he operates his business from home. He pays his employees with cash or in food, which they don’t mind because they are family members. He shows the officer order slips for produce bought last month.

Even if an officer is satisfied that this business may be operational, provides a good and has a work location, it has not “demonstrated the ability to provide stable employment for the requested period” because it is too new and does not pay its employees in a consistent and reliable way.

Reasonable Employment Need

In order for an employer to show that the offer of employment is consistent with the reasonable employment needs of the employer, the employer must demonstrate that the  offer of employment is reasonable in relation to the type of business the organization is engaged in.  Specifically, the occupation should be one that is reasonably expected in that organization’s sector, and the employer must be able to meet the terms of employment that they have offered.  In other words, the employer must be able to satisfactorily explain the role of the temporary worker in their operations and how it covers a reasonable employment need, in terms of both occupation and operation.

The IRCC website contains the following examples of when an employer might not be able to demonstrate that there is a reasonable employment need:

  • An insurance company is hiring a full-time actor.
  • A company has only 10 employees, and this is the sixth supervisor position they have offered in the last year.
  • A hair salon is hiring a management consultant.

Ability to Fulfill 

An employer must be able to demonstrate that the terms of employment are ones that they can reasonably fulfill. They must demonstrate that they are capable of providing, for the duration of the work permit, the hours of work, wages and benefits stated in the offer of employment.

Officers may request the following documents to show whether an employer can fulfill the terms of the job offer:

  • T4 Summary of Remuneration Paid
  • T2 Schedule 100/125
  • T2125 or equivalent
  • worker’s compensation clearance letter
  • business contracts.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A well-established restaurant chain is hiring a specialty cook. The chain has been in existence for over 10 years and is known for its exemplary food and service.

The restaurant chain is able to demonstrate that it is “capable of providing, for the duration of the work permit, work in line with the occupation, wages offered and acceptable employment standards” because they are well established and have several years of income to prove they can afford the new cook.

Negative example

A new home-based business is hiring a person to prepare food for a new gourmet meal delivery service. The owner of the new business declared a profit of only $10,000 the previous year, but they are going to be paying the temporary worker $45,000 a year.

The new business is not able to show that they have sufficient funds to pay the wages offered, nor do they have business contracts to show that they would be able to meet the terms of the offer based on monies to be received through the contracts.

Compliance with Federal / Provincial Law

Finally, an officer must be satisfied that the employer will be and has been compliant with federal and provincial or territorial laws regulating employment.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A British Columbia mining company is hiring a temporary worker. There are several news articles referencing the fact that they have won prestigious safety awards in their industry and that they are a top 50 company to work for.

Unless the officer has any indication to the contrary, they could be satisfied that this company has a common practice of compliance with “federal and/or provincial laws regulating employment and recruitment in the province(s) it is intended that the temporary worker will work” based on having won awards for safety and being one of the top 50 companies in Canada.

Negative example

An Alberta mining company has just received a provincial court judgement that they are guilty of involuntary manslaughter because of a lack of safety equipment on their work sites that caused the death of 2 workers.

The Alberta mining company has been found guilty in a provincial court of not complying with provincial and federal laws. Therefore, they do not meet this requirement, and the work permit would be refused.

Other Factors

It is important to understand that in determining whether an offer of employment is genuine, officers can go beyond the prescribed factors described above.  In Singh v. Canada (Citizenship and Immigration), Madam Justice Kane noted that where it appears that an employer is hiring a family member, and that the motivation appears more to help the family member than to fill a vacancy, then the genuineness of a job offer can be doubted.  Madam Justice Kane wrote:

I do not accept the applicant’s argument that the factors in subsection 200(5) are the only factors that can be considered to determine the genuineness of a job offer or that they should be interpreted so narrowly that the Officer’s legitimate concerns about the genuineness of a job offer could not be considered. In addition, paragraph 200(5)(a), whether the offer is consistent with the reasonable employment needs of the employer, is a broad question which would include consideration of a range of relevant factors, including: the nature of the business; the nature of the particular employment offered; the size of the business; the volume of sales; and, the number of employees. In my view, it would not be consistent with the reasonable employment needs of an employer in a specialized area, such as a jewellery business, to offer employment to a person who has not provided objective evidence of their qualifications and experience and whose personal connection to the business owner appears to be a higher priority than the objective and legitimate needs of the employer and business owner for a qualified jewellery appraiser.


Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations

Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

There has been developing jurisprudence on the disjunctive nature of IRPR r. 4(1), including a recent Federal Court certified question on whether IRPR 4(1)(a) is ultra vires the Immigration and Refugee Protection Act (“IRPA“), which provides that:

The objectives of this Act with respect to immigration are to see that families are reunited in Canada.

Continue reading “Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations”


One-Sided Marriages

The Federal Court has released a decision which seems to suggest that immigration officers can analyse whether a marriage is “one-sided” for the purpose of determining whether a marriage is not genuine or whether it was entered into for immigration purposes.  Although Dalumay v. Canada, 2012 FC 1179 is not particularly ground-breaking, it contains some useful paragraphs reminding individuals what immigration officers are analysing when they process sponsorship applications.

Regulation 4 of Canada’s Immigration and Refugee Protection Regulations provides that a relationship will be considered bad faith (and a sponsorship application will be rejected) if the relationship was entered into primarily for the purposes of acquiring any status or privilege under the Act or is not genuine.  As previously noted on this blog, Regulation 4 was amended in 2010, with the word “or” replacing “and” before the phrase “is not genuine.”

In Keo v. Canada (Citizenship and Immigration Canada), 2011 FC 1456, the Federal Court described the implication of the 2010 change as being that:

The amendment made to section 4 of the Regulations is not cosmetic in nature; the use of the word “or” in the English version and of the words “selon le cas” in the French version are very clear: if either of the two elements (genuineness of marriage and intention of the parties) is not met, the exclusion set out in the new subsection 4(1) of the Regulations applies.

[…]

A marriage might have been entered into in accordance with all of the statutory formalities, but, nonetheless, the visa officer or the panel may refuse to recognize [it] if they find that the marriage did not occur in “good faith”, even if the expression “non-genuine marriage” is not used in their reasons for decision… In fact, what the immigration laws do not recognize are situations where the two spouses are complicit to duplicity (a non-genuine marriage) and/or where the intention of the spouses or of one of the spouses is primarily to acquire a status or privilege (even if the other partner may benefit from it). In other jurisdictions, these unions are sometimes described as “sham” or “white” marriages, whereas in Canada, the manual.. uses the expression “marriage of convenience”.

Consequently, whether this is a conventional marriage, an arranged marriage or another type of conjugal relationship, it is essential to find in the couple’s relationship a mutual commitment to living together to the exclusion of any other conjugal relationship. The spouses’ physical, emotional, financial and social interdependence goes hand in hand with this because, after all, in all cultures and traditions, over and above any religious undertakings, in terms of its civil effects, marriage is, above all, an indeterminate contract requiring that spouses help each other and contribute towards the expenses of the marriage in proportion to their respective means, which certainly includes the activities of each spouse, or even both together, in the home.

Furthermore, in M v H, [1999] 2 SCR 3, at paragraph 59, the Supreme Court of Canada […] spoke of a conjugal relationship based on generally accepted characteristics: shared shelter, sexual and personal behaviour, services, social activities, economic support, children and the societal perception of the couple. However, these elements may be present in varying degrees and not all are necessary for the relationship to be found conjugal. The same type of criteria can be found in the manual.

[…]

There is no single method of analysis. For example, money transfers, the combining of financial resources, the existence of joint accounts and the purchase of property in the name of both spouses are certainly indicative of financial support or interdependence. Something else that can be verified is how the spouses behave towards one another and towards the authorities in their respective countries. Do they have children? Do they support each other during illnesses? Do they give each other gifts? Do they travel together? Do they live under the same roof when they are in the foreign spouse’s country of origin? In what way and how often do they communicate when they are separated?

In Dalumay, the Court added that:

In the matter at bar, the Immigration Appeal Division did not explicitly take issue with the evidence of the genuineness of the marriage, but concluded that for both spouses (although to a greater extent for the applicant’s husband) the marriage was primarily entered into for the purpose of acquiring status or privilege under the Act. In other words, the IAD viewed the marriage (or the relationship) as being one-sided. The applicant subscribed to an insurance policy in which she designated her husband as the beneficiary, she visited her husband several times in Mexico and paid for all of her expenses, she paid for a trip with her husband and his son, she sends him money on a monthly basis, she pays his bills, etc.

 

 

The applicant submits that the evidence supporting the IAD’s negative conclusion did not meet the required evidentiary test of balance of probabilities. Even if the credible evidence of the genuineness of her marriage (demonstrating positive features of a couple, as the applicant puts it) was not fully weighed in the assessment, the IAD’s decision turned on the failure of the applicant’s husband to provide sufficient evidence that he entered into the relationship with an intention to found, raise, and support a family with the applicant.

The above passages are all useful reminders in what it is that officers are looking for when they process sponsorship applications.  Accordingly, people preparing such applications should take care to show that they are demonstrating that:

  • the couple are committed to each other emotionally, financially, and physically (although in practice not too much detail is provided on this last one);
  • the couple are exclusive;
  • the relationship evolved in a natural fashion ie: immigration wasn’t a concern or an issue;
  • that both individuals in the relationship feel the same; and
  • that the relationship is known to others.

Significant Changes Coming to the Spousal-Sponsorship Program

Fresh off his efforts to crack down on crooked consultants, and having just introduced legislation to deter “bogus refugees,” Jason Kenney, the Minister of Citizenship and Immigration, is now focusing his scopes on deterring sham marriages.  He has made (or is in the process of making) two significant changes to Canada’s spousal-sponsorship program.  While both of his reforms will have its critics, the changes are likely to have the overwhelming support of the Canadian public, and continue the Conservative government’s trend of harmonizingCanada’s immigration system with other Western democracies.

The first change is a five-year sponsorship bar for recently sponsored spouses.  A previously-sponsored spouse will now be barred from sponsoring a new spouse or partner for the first five years that the previously sponsored spouse is a permanent resident.  The government’s objective is to prevent an individual who has been sponsored from divorcing the sponsor and shortly thereafter getting married and sponsoring someone else.

This change took affect on March 2, 2012.  If you were in the process of preparing a spousal-sponsorship application, and this change applies to you, then I’m sorry toinform you that there was no grace period. You will (likely) have to wait until you have been in Canadafor five-years before you can sponsor your spouse.

The second change is the introduction of conditional residency for certain spouses.  Spouses or common-law or conjugal partners who are in a relationship of two years or less with their sponsor will soon be subject to a period of conditional permanent residence.  The condition would require the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a period of two years following the acquisition of permanent residence status.  If this condition is not met, then the permanent resident and his/her dependents will lose their status inCanada, and be subject to removal proceedings.

There are two exceptions to the conditional permanent residency rule.  The first is if the sponsor and the sponsored spouse have a child together.   The second is if the sponsored spouse can demonstrate that he/she suffered abuse or neglect.  Abuse can be physical (assault and forcible confinement), sexual (sexual assault), psychological (threats and intimidation), and financial (fraud and extortion).   Neglect consists of the sponsor’s failure to provide the necessaries of life.

Implementing conditional permanent residency is expected to be an expensive endeavor.  Indeed, the government anticipates that the quantitative costs will exceed the benefits.  The Conservatives believe that it will cost $11-million to implement conditional permanent residency during its first ten years.  The costs include investigating cases of alleged fraud, taking enforcement action against those found to be non-complaint with the condition, and increased admissibility hearings and appeals.

The Conservative believe that the benefit will be $5.5-million during the same period.  The savings are expected to come from a reduction in spousal-sponsorship applications.

An additional benefit will hopefully be that Citizenship and Immigration Canada will be less scrutinizing of spousal-sponsorship applications.  In 2010, 46,300 couples submitted spousal-sponsorship applications.  Sixteen percent of applications were refused, primarily because the couples did not satisfy CIC that their relationships were genuine.  While some of the 84% of couples that were approved were likely sham marriages that slipped through the cracks, it is probable that an even greater number of genuine marriages were rejected.

The Immigration Appeal Division meanwhile recently released statistics showing that as of September 30, 2011, 6,399 spousal-sponsorship appeals were underway acrossCanada.  Each of these appeals takes up a serious amount of time and resources.

Presumably, once conditional permanent residency is in place Citizenship and Immigration Canada will be able to reduce the scrutiny that it apples to spousal-sponsorship applications.  For example, one would hope that an officer who has concerns about the genuineness of a relationship but is unsure will ultimately approve the application knowing that the principal applicant will have to cohabit in a conjugal relationship with the sponsor for two years or face removal.  Such a shift in mentality could greatly reduce processing times, save money, and decrease the burden on applicants.

Of course, whether or not there is actually a decrease in the burden on applicants will depend on how the government implements conditional permanent residency.  The proposed regulatory change is unclear as to whether immigrants have to be proactive in getting the condition removed, or whether the passage of time makes it automatic.  I shudder to think that all couples encompassed by the rule will have to submit new applications establishing the continuing genuineness of their relationship

Because of that is the case, then conditional permanent residency will be a far more expensive endeavor than the government is predicting.