On March 7, 2013, the National Post reported that Citizenship and Immigration Canada decided “two identical bids” for a government contract by coin toss.  I was quite surprised when I read this, and have since obtained a copy of the contract which was used to create a legally enforceable coin toss.

When I was in law school friends jokingly asked me if I would create contracts for hiking agreements and calling “shotgun!”  No one ever asked me to draft a coin toss contract, but it is useful to know that there is a precedent if I am ever asked to do so.

Please note that the document below was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  I have also obtained copies of the coin toss contracts which show the names of individuals and companies involved with the coin toss, but have decided not to publish them.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

 » Read more about: CIC Coin Toss Decision Provides Useful Precedent for Aspiring Contract Drafters  »

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Please note that on December 13, 2016, the Government of Canada abolished the 4 year cap on foreign workers. 

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On April 1, 2011, Citizenship and Immigration Canada introduced a four-year cap on the maximum allowable cumulative duration that a Temporary Foreign Worker (“TFW”) can work in Canada.  Generally, once a foreign national has accumulated four years of work, he or she will be ineligible to work in Canada again until a period of four years has elapsed.

What Do Employers Need to Know

Before hiring a foreign worker, an employer should know the total time that the foreign worker has worked in Canada.  It would be unfortunate and costly to offer someone a job only to then discover that the person can either only work for a limited period, or not at all.

Example:

Since April 1, 2011, a TFW has accumulated three years of work in Canada, and is now applying for a two-year work permit in an occupation that is not listed in the ‘exceptions’. The work permit would only be issued for one year.

All work performed in Canada since April 1, 2011 — regardless of whether or not it was authorized by a work permit or exempt under Regulation 186 — counts towards a foreign worker’s four-year total. This includes work done as a volunteer, as a self-employed individual, work in all occupations falling under all categories in the National Occupation Code (“NOC”) list, work done while under implied status, and work done while on an open work permit, including post-graduate work permits.  The only exception is that any work performed during a period in which the foreign national was authorized to study on a full-time basis in Canada is not included in cumulative duration totals.

 » Read more about: Four Year Cap on Temporary Foreign Workers  »

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I will be presenting in Vancouver tonight at the Canadian Association of Professional Immigration Consultants annual general meeting  on the recently changed Federal Skilled Worker Class and the Canadian Experience Class.  This follows up on a presentation I made on the same topic at the Canadian Bar Association annual immigration conference in Montreal.

As part of my presentation, I have made available the following ATIP result publicly available.  This ATIP contains training manuals and internal procedures used at Citizenship and Immigration Canada’s Centralized Intake Office in Sydney, Nova Scotia.  It can be viewed by clicking the link below.

ATIP CIO TRAINING MANUALS – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/compressed.PDF

I have also reposted the following copies of ATIP results which I made available for the Canadian Bar Association conference in Montreal.

ATIP 1 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP1.PDF

Contains:

  • An e-mail discussion on substituted evaluation;
  • Several e-mail discussions regarding issues with the PhD program;
  • Processing delays with the CEC;
  • Issues with the 2D barcode and GCMS;
  • Addressing problems with Indian Birth Certificates;
  • and more.

ATIP 2 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP2.PDF

Contains:

  • An e-mail discussion on working overtime to process capped applications;
  • Clarifying the use of Academic IELTS;
  • E-mails on processing reconsideration requests; and
  • Several OBs (most already public, and some not).

ATIP 3 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP3.PDF

Contains:

  • GCMS Shortcuts and Tips;
  • Case Studies on Removal Orders and ARC;
  • Cheat Sheet on Calculating the Start of the 5 Year Period for Rehab;
  • Training guides for misrepresentation;
  • Assessing medical specializations and professional degrees;

 » Read more about: ATIP Results for CAPIC Presentation  »

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On April 29, 2013, the Government of Canada announced that numerous changes were being made to the Temporary Foreign Worker Program, particularly the Labour Market Opinion (“LMO“) program.  While most of the changes will be phased in, some of them, including the suspension of the Accelerated Labour Market Opinion (“ALMO“) program, took effect immediately.

Just over one week later, on May 10, 2013, Citizenship and Immigration Canada (“CIC“) announced that the Parent and Grandparent Sponsorship Program (the “P&G Sponsorship Program“) would reopen in 2014 and accept 5,000 applications in its first year.  Several changes have been made to the program.

Finally, CIC also announced that it would soon reduce the age of dependency for all immigration programs from 22 to 18. In other words, only children under the age of 19 will be able to accompany their parents when they immigrate to Canada.

Changes to the Temporary Foreign Worker Program

There are numerous, significant changes being made to the Temporary Foreign Worker Program.  All of the changes appear aimed at making LMOs more difficult to obtain.  

  • Effective April 29, 2013, the ALMO has been temporarily suspended pending review.
  • Effective April 29, 2013, Human Resources and Skills Development Canada (“Service Canada”) ended the Variation to the Prevailing Wage Rate.  In the past, employers had the flexibility to pay temporary foreign worker wages up to 15% below the prevailing wage for a higher-skilled occupation, and 5% below the prevailing wage for a lower-skilled occupation, if the lower wage was the same as that being paid to their Canadian employees in the same job and in the same location.  Accordingly, as the Variation of the Prevailing Wage Rate has been cancelled, to obtain a LMO employers must pay their foreign workers the prevailing wage rate regardless of what their Canadian employees make.

 » Read more about: Changes to the Foreign Worker Program, Parent Sponsorship Program, and the Age of Dependency  »

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Sharifi v. Canada (Citizenship and Immigration), 2013 FC 453

This was a FSWP case involving an officer who refused a marine engineer’s application because the officer did not think that the applicant had demonstrated that he performed the main duties of NOC 7132.  In overturning the decision, the Federal Court judge (who prior to becoming a judge was a marine lawyer) stated that the officer did not demonstrate the expertise required of a visa officer.

The following two paragraphs are the most interesting part of the decision:

Furthermore, decision-makers are entitled to deference because of their expertise. The visa officer should be taken to know the functions of a third engineer, even if they had not been spelled out.

Consequently, the visa officer is taken to know the Marine Personnel Regulations issued under the Canada Shipping Act, 2001. He would know that a fourth class engineer has at least six months of sea service as an engineer in charge of machinery on vessels that have a propulsive power of at least 500 kW, has attended various training courses and has successfully been examined with respect to applied mechanics, thermodynamics, electro technology, engineering knowledge of motor vessels and steamships and, once again, much, much more.

Perhaps the Federal Court of Appeal, and eventually the Supreme Court of Canada, will consider this case when they determine whether the standard of review for questions of law in immigration matters is reasonableness or correctness.

Zhou v. Canada (Citizenship and Immigration), 2013 FC 465

This case involved a wealthy Chinese individual whose application for a Temporary Resident Visa was refused.  While the Court was critical of much of the officer’s decision,

 » Read more about: Four Case Comments  »

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Section 133(2) of the Immigration and Refugee Protection Regulations (the “Regulations”) provides that:

A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes [an application to sponsor a member of the Family Class] and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.

(Emphasis Added)

I have dealt with this issue on numerous occasions, and, depending on the visa post, Citizenship and Immigration Canada (“CIC“) may scrutinize in some detail the sponsor’s intention to actually reside in Canada with their spouse, or to simply get the principal applicant permanent resident status without actually immigrating to Canada.

The Embassy of Canada in the United Arab Emirates asks applicants to complete a Residency Questionnaire for their sponsors if they reside outside of Canada, and I have reproduced the questions below.  These questions can serve as a useful guide to anyone submitting a family class application where s. 133(2) of the Regulations applies.

  1. Is your sponsor currently a Canadian citizen or a Permanent Resident? 
  2. Is your sponsor currently in Canada?
    1. If yes, then how long has the sponsor been physically residing in Canada?
    2. If yes, then when did you last see your sponsor?
    3. If no, then how long has the sponsor been living outside of Canada?
  3. If your sponsor is not living in Canada, then please explain why and when he/she intends to return to reside in Canada once your visa is issued.  Please provide as many details as possible.
  4. What preparations have you and/or your sponsor made for your move to Canada?  

 » Read more about: Spousal Sponsorships where the Sponsor Does not Live in Canada  »

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One of the most frustrating experiences for people applying for visas is to have an application returned due to incompleteness.  Because of processing delays, it often takes Immigration, Refugees and Citizenship Canada (“IRCC“) months to return an incomplete application, and applicants have to then start over.  While the practice of returning incomplete applications was originally limited to IRCC, on June 20, 2014, the Ministry of Economic and Skills Development Canada (“ESDC“) released a Temporary Foreign Worker Program Bulletin titled “How to Handle Incomplete Applications.”

 » Read more about: The Return of Incomplete Applications  »

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I will be presenting in Montreal tomorrow at the Canadian Bar Association National Immigration Law Section’s annual law conference on the recently changed Federal Skilled Worker Class and the Canadian Experience Class.  As part of my presentation, I have made the following copies of ATIP results below publicly available for download:

ATIP 1 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP1.PDF

Contains:

  • An e-mail discussion on substituted evaluation;
  • Several e-mail discussions regarding issues with the PhD program;
  • Processing delays with the CEC;
  • Issues with the 2D barcode and GCMS;
  • Addressing problems with Indian Birth Certificates;
  • and more.

ATIP 2 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP2.PDF

Contains:

  • An e-mail discussion on working overtime to process capped applications;
  • Clarifying the use of Academic IELTS;
  • E-mails on processing reconsideration requests; and
  • Several OBs (most already public, and some not).

ATIP 3 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP3.PDF

Contains:

  • GCMS Shortcuts and Tips;
  • Case Studies on Removal Orders and ARC;
  • Cheat Sheet on Calculating the Start of the 5 Year Period for Rehab;
  • Training guides for misrepresentation;
  • Assessing medical specializations and professional degrees;
  • Assessing Skilled Workers (Islamabad Caseload);
  • Exercises on assessing Ministerial Instructions;
  • Federal Skilled Worker Cheat Sheet;
  • C-50 Summary;
  • Australian Police Certificates;
  • Criminality in the UK, equivalency sheets, and a whole lotta rehab stuff;
  • War Crimes (including a chart of every organization the courts have upheld as being brutal or non-brutal);

Please note that the ATIP results above are copies of official works by the Government of Canada which were obtained through Access to Information and Privacy Act Requests, 

 » Read more about: ATIP Results for CBA Presentation  »

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