On July 31, 2013, the Ministry of Employment and Social Development Canada (“Service Canada“) introduced changes to the Labour Market Opinion (“LMO“) process which took affect immediately. Today’s changes, as well as previous, recent ones, greatly increase the burden for companies applying for LMOs. Today’s changes were comprehensive. We have provided a broad overview of the changes below, however, we encourage you to contact us, or check the website below, for further details.
Today’s Changes
LMO Application Fees
Effective July 31, 2013, employers applying for LMOs must pay a processing fee of $275.00 for each position requested. The total payment must reflect the number of Temporary Foreign Workers (“TFW“) positions requested on the LMO application (e.g. $275 x number of positions = total payment). For example, a company requesting a bulk LMO for 25 positions will be required to pay a processing fee of $6,875.00.
Employers who wish to increase the number of positions requested on a LMO application must submit a new LMO application for these positions, with the required documents and fees.
There will be no refund in the event of a negative LMO or if the application is withdrawn or cancelled. Reconsideration requests will also require the submitting of new application forms and fees.
New Advertising Requirements
The period that employers must advertise positions domestically before applying for LMOs is being increased from two weeks to four weeks. As well, advertisements must continue to run during Service Canada’s processing of the LMO application.
In addition to advertising on the national Job Bank website or the equivalent provincial/territorial website, employers must prove they have used at least two other recruitment methods that are consistent with the practices for the occupation. If hiring for a high-skilled position,
» Read more about: Service Canada Significantly Changes Labour Market Opinion Program »
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A reader sent me a digital photograph of a sign allegedly posted at the Canadian Embassy in Beijing. As the PAFSO job action continues, the implications for prospective international students is become quite serious. I can’t even guess on how post-secondary institutions are preparing and mitigating.
» Read more about: Sign at Canadian Embassy in Beijing Shows Impact of PAFSO Strike »
Read more ›In 2013 the Federal Court released its decision in Martin-Ivie v. Canada (Attorney General), 2013 FC 772 (“Martin-Ivie“), a case which involved a Canada Border Services Agency (“CBSA“) officer who sued CBSA over what she regarded as safety issues. The case revealed much about the operations of the CBSA at land ports of entry. I have combined information from Martin-Ivie with what is found in the People Processing Manual and the Customs Enforcement Manual to help provide further understanding of what CBSA officers are looking at on their computers at primary inspection (“Primary“).
The Databases
There are four databases which CBSA officers have access to at Ports of Entry.
Integrated Customs Enforcement System (“ICES”)
ICES is a national Canadian database of lookout information and enforcement activities that, amongst other things, contains information about Canadians who have come into contact with CBSA, or individuals who might seek to enter the country and might pose a risk. In addition to traveller records, ICES contains information on customs seizures for a period of five years. As well, ICES contains a record of every vehicle (and theoretically individual person) entry into Canada. (Practitioners generally request copies of ICES when representing individuals in permanent resident card renewal applications.)
Field Operations Support System (“FOSS”)
FOSS is Citizenship and Immigration Canada (“CIC“) and CBSA’s shared database. It contains millions of records about all CBSA and CIC contacts with non-Canadian citizens. It specifically contains information on any immigration records and violations. It is gradually being rolled into CIC’s Global Case Management System (“GCMS“).
The FOSS enforcement database includes information about previous and pending deportations, overextended stays by visitors, individuals who fail to present themselves for Immigration hearing or voluntary departures,
» Read more about: The CBSA Databases – ICES, FOSS, CPIC, and NCIC »
Read more ›I recently met with an individual who was given erroneous advice. She was told that she should not file an “Application for Permanent Residence from within Canada – Spouse or Common-law Partner in Canada” (“Inside Canada Sponsorship“) because she had dependent children living overseas, and that if she did the Inside Canada Sponsorship her children would not be able to accompany her to Canada.
This is not the case.
Section 5.11 of Citizenship and Immigration Canada’s Inland Processing Manual 8 – Spouse or Common Law Partner in Canada states that:
For dependent children living outside Canada, the [Case Processing Centre – Vegreville] will forward a copy of the permanent residence application listing the dependent children and their relevant contact information to the responsible visa office for verification of the relationship, once the sponsor and applicant have been assessed and approved against eligibility requirements.
The visa office will determine admissibility of dependent children outside Canada, conduct interviews if necessary and advise the CPC-V of the outcome by updating the electronic record. The CPC then informs the CIC [office] responsible for the applicant’s place of residence that permanent residence may be granted. Once the CIC [office] has granted permanent residence to the principal applicant, it will notify the visa office, which will issue permanent resident visas to the overseas dependent children who are seeking permanent residence.
There are many differences between the Inside Canada Sponsorship and the outside Canada sponsorship. Whether children outside of Canada can accompany the principal applicant in the same application is not one of them.
» Read more about: Inside Canada Spousal Sponsorship When there are Children Outside Canada »
Read more ›In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases.
Article 1F(a) of the 1951 Refugee Convention provides that:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
The issue that Ezokola addressed is how broad Article 1F(a) is. It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes. If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.
» Read more about: Ezokola and the Test For Complicity »
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As many people know, the Professional Association of Foreign Services Officers (“PAFSO“) is currently taking strike action. According to the PAFSO Facebook page:
[As of July 10] members who have not been identified as essential have withdrawn services in San Juan, Costa Rica,Sao Paulo. Guatemala, Brasilia, Moscow, Warsaw, Singapore,Manila, Islamabad,Chandigarh,Ankara, Hong Kong, and Delhi. Some instances involve trade and political officers as well. While this action does not mean that the entire visa office is closed, it does mean a significant increase in processing times.
It is true that there is some processing going on at Canadian missions abroad. Yesterday, an immigration lawyer shared a letter which he had received from the Canadian High Commission in Istanbul. He has given me permission to reproduce it below.
I have never seen a letter from Citizenship and Immigration Canada which contained as many typos as this. I don’t know if a PAFSO member wrote this, or if someone who is filling in for a PAFSO member did. What I do know is that this is embarrassing for Canada.
» Read more about: PAFSO Strike Jeopardizing CIC Client Services »
Read more ›The Canada Border Services Agency (“CBSA“) in 2011 produced the Integrated Intelligence / Enforcement Priorities Report (the “Report“). The Report is interesting because it presents succinct descriptions of what CBSA considers to be areas of importance in the enforcement context related to immigration, and why it considers these issues important.
Practitioners may find these summaries useful in explaining to clients why we ask some of the questions that we do.
I have reproduced sections of the report below:
Residence Fraud
What Is It
Canada’s immigration and citizenship legislation both contain residency obligations which must be met in order to be granted citizenship or maintain PR status in Canada. Section 28(1) of the IRPA requires that a PR be physically present in Canada for 730 days in a 5 year period. Failure to meet the residency obligation can result in the loss of PR status and removal from Canada. Furthermore, in order to be eligible for citizenship, section 5 the Citizenship Act requires that a PR accumulate at least 3 years of residence in Canada within the 4 years immediately preceding their application.In many instances, individuals who do not meet the residency requirements under the IRPA use fraudulent documentation or other means to falsely establish their presence in Canada in order to maintain their PR status. This problem is compounded if the fraud is not detected and the person becomes eligible for citizenship based on erroneous information.
Residence Fraud is believed to involve a mix of individuals acting of their own accord and organized attempts to circumvent the provisions of the IRPA and Citizenship Act in order to gain status although the magnitude of the problem remains unknown. The incentive to commit fraud can be great, in part because maintaining PR status permits an individual to become eligible for citizenship and for various other Federal/ Provincial/Territorial (FPT) benefits.
» Read more about: Why the CBSA Enforces What it Does »
Read more ›The Saskatchewan Queen’s Bench (the “Court“) in Kaberwal v. Saskatchewan (Economy), 2013 SKQB 244 has released a decision clarifying the procedural fairness owed by provincial nomination programs to immigration representatives accused of fraud. To the best of my knowledge, it is the first decision on this issue.
The Facts of the Case
On December 31, 2012, Saskatchewan’s Ministry of Economy, Immigration Services (the “Ministry“) suspended an immigration consultant’s (the “Consultant“) right to submit applications to the Saskatchewan Immigration Nominee Program (“SINP“) for a period of two years. SINP officials accused the Consultant of fabricating job offers for employers who informed SINP that they never saw or signed the job offers that the Consultant submitted to SINP without their knowledge.
The Ministry sent the Consultant a letter which, amongst other things, stated the following:
We have reviewed seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have you listed as the third party representative. Part of the review of the application includes verifying the validity of the documents and information included in the application. As a representative, you have signed and agreed to the Saskatchewan Immigrant Nominee Program (SINP)’s Code of Conduct for Representatives which states that you will provide truthful, accurate and complete information to the SINP and that you will be personally accountable to the SINP for all aspects of the application.
Our view of job offers from Saskarc Industries Inc. included contacting the company to confirm their validity. Our conversations with Saskarc revealed that they did not issue these seven job offers and they are not written in their standard format. Furthermore, they have indicated that these job offers are fraudulent.
….
We would like to give you an opportunity to respond to this information.
Read more ›On July 15, 2013, Prime Minister Stephen Harper shuffled his cabinet. From an immigration perspective, the important changes are:
- Steven Blaney replaces a retiring Vic Toews as the Minister of Public Safety and Emergency Preparedness.
- Chris Alexander replaces Jason Kenney as the Minister of Citizenship and Immigration.
- Jason Kenney replaces Diane Finley as the Minister of Employment and Social Development (formerly Human Resources and Skills Development Canada).
The Ministry of Employment and Social Development is a huge ministry, responsible for developing, managing, and delivering social programs and services. In addition to overseeing the Labour Market Opinion aspect of the Temporary Foreign Worker Program, Minister Kenney will also be responsible for Employment Insurance, the Canada Student Loans, the Canada Pension Plan, Old Age Security, the national Homelessness Initiative, and more. He will be managing the delivery of over $87-billion in programs and services, and will oversee approximately 24,000 employees.
In hindsight, Jason Kenney’s appointment to be Minister of Employment and Social Development is not that surprising. On April 29, 2013, he gave a press conference regarding changes to the Labour Market Opinion program. More recently, he gave Service Canada the power to issue what are in effect Ministerial Instructions, and he recently introduced regulatory amendments providing the Department with incredible powers to enforce foreign worker compliance.
As someone who interacts with the Temporary Foreign Worker Program on an almost daily basis, I have published below five things that I would like to see Minister Kenney change about the Labour Market Opinion process. In making these requests I have taken into consideration the dual objectives of both protecting the Canadian labour market while ensuring that Canadian employers have flexibility to employ the people who they want.
Read more ›The Government of Canada through the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 (the “PCMLTFA“), has enacted measures to increase the detection of money associated to the proceeds of crime at Ports of Entry. Part 2 of the PCMLTFA imposes on obligation on every person to report the importation or exportation of currency or monetary instruments of an equal value to or greater than the prescribed threshold of CAD $10,000.
While there is no limitation on the total amount of currency or monetary instruments that may be brought into or taken out of Canada, every person has to report any amount exceeding $10,000. The Canada Border Services Agency (“CBSA“) may then question person regarding the possession of the currency.
Levels of Seizure and Penalty
CBSA officers who believe on reasonable grounds that the reporting requirement of the PCMLTFA has been violated may seize as forfeit currency or monetary instruments, and impose the prescribed penalty as terms of release.
The Customs Enforcement Manual provides that the following terms of release are to be offered:
- Level 1 – $250
- Where a person has not concealed the currency or monetary instruments;
- Where a person has made a full disclosure of the facts concerning the currency or monetary instruments on their discovery; and
- Where the person has no previous seizures under the PCMLTFA.
- Level 2 – $2,500
- Where a person has concealed the currency or monetary instruments, other than by means of a false compartment; or
- Where a person has made a false statement with respect to the currency or monetary instrument;
- Where there is a previous seizure under the PCMLTFA,
- 1
- 2
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