A22.1 Declarations to Deny People Entry to Canada

29th Jan 2014 Comments Off on A22.1 Declarations to Deny People Entry to Canada

On January 28, 2014, Chris Alexander, the Minister of Citizenship and Immigration Canada, issued the following statement (emphasis added):

Recent actions by members of Ukraine’s ruling elite in the face of popular and growing protests have been utterly deplorable, and compel us to take targeted and meaningful action.

“Given the violent repression of legitimate protest and the intimidation of opposition voices, we will be restricting entry to Canada – effective immediately – for key government figures as a direct result of their actions in recent days.

“Although Canada welcomes the recent developments in Ukraine, more needs to be done.  The Ukrainian government must address the fundamental demands of the people, including accountability and a full embrace of democratic principles.

“We believe it will take more than words to establish trust with the people, and Canada will continue to stand with the Ukrainian people, who courageously continue to speak out in support of democracy.

“Canada will continue to monitor developments in Ukraine, and, with our international partners, consider further options if necessary.”

This is the first time that the Government of Canada has used its new power resulting from Bill C-43 – The Faster Removal of Foreign Criminals Act to deny individuals the ability to obtain temporary resident status in Canada for up to three years on the basis of public policy considerations.

Section 22.1 Declarations

Section 22.1 of the Immigration and Refugee Protection Act states: 

Declaration

22.1 (1) The Minister may, on the Minister’s own initiative, declare that a foreign national, other than a foreign national referred to in section 19 [ed: this pertains to people registered under the Indian Act],

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Labour Market Impact Assessments- Prevailing Wage

Labour Market Impact Assessments- Prevailing Wage

24th Jan 2014 Comments Off on Labour Market Impact Assessments- Prevailing Wage

Last updated on September 20th, 2018

In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area.  The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada.  It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.

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Owner Operator LMIAs

22nd Jan 2014 Comments Off on Owner Operator LMIAs

Last updated on September 19th, 2018

One of the less understood recruitment exemptions in the Labour Market Impact Assessment stream is the exemption for Owner / Operators of a business.  The Employment and Social Development Canada website states:

Category: Owners/Operators
Description: The owner/operator must demonstrate that he is integral to the day-to-day operation of the business and will be actively involved in business processes/service delivery in Canada. In such instances, greater consideration should be given to demonstration by the applicant (owner/operator) that such temporary entry will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and permanent residents.

Variation: No advertising or recruitment is required.

Applicability: All Provinces

The Temporary Foreign Worker Program Manual previously stated:

The ESDC wiki currently states:

The wiki makes it clear that the following key conditions apply to Owner / Operator LMIAs:

  1. ESDC must be satisfied that the foreign national is or will be a principal owner or co-owner of the business in Canada.
  2. The company must prove the foreign natinoal’s shareholdings.
  3. [redacted]
  4. When assessing labour market factors, the focus is on job creation/retention and/or skills transfer. For co-owners, the focus is on job creation / retention and/or skills transfer.
  5. For High-Wage Owner-operator applications, Transition Plans apply.
  6. For Low-Wage, the caps apply.
  7. Confirmations can be for one year or less.

The wiki goes on to address whether start-up companies can do owner-operator LMIAs, including where the company does not exist.

While the amount of redactions are frustrating, regardless of what the ESDC website and the Temporary Foreign Worker Program Manual / wiki states,

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The Beyond the Border Initiative – ETA, Information Sharing, Tracking Exits

17th Jan 2014 Comments Off on The Beyond the Border Initiative – ETA, Information Sharing, Tracking Exits

[The following is a slightly edited (to include links) version of an article that I wrote for The Canadian Immigrant.]

In February 2011, Canada and the United States agreed to the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competiveness. More commonly known as the Beyond the Border Action Plan, the effect of the agreement was to strengthen co-operation and, in some cases, harmonize Canadian and American immigration practices.

The Government of Canada has begun enthusiastically implementing the terms of the Beyond the Border Action Plan, and will in 2014-2015 introduce three significant changes to Canadian immigration legislation that will impact almost everyone who enters Canada.

Electronic travel authorization

People who wish to visit Canada generally fall into one of two categories:  those who need to apply for and obtain temporary resident visas prior to arriving in Canada; and those who can arrive at Canadian ports of entry without first obtaining a visa. This will change in April 2015, when Canada implements the electronic travel authorization (“eTA”) system.

All foreign nationals who are exempt from the requirement to obtain a temporary resident visa will instead need to obtain online authorization before they fly to Canada.  This includes Europeans, Australians, Japanese, Koreans, etc. Citizens from the United States, however, are exempt.

The eTA application process will be online via the Citizenship and Immigration Canada (CIC) website. Applicants will be required to enter biographic, passport and background information, which may affect admissibility to Canada. An electronic system will then perform an examination that includes a risk assessment and a verification of the information provided in the application against enforcement databases. The Government of Canada expects that the majority of applications will be approved within minutes.

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Environmental Overview – Chandigarh – 2013

14th Jan 2014 Comments Off on Environmental Overview – Chandigarh – 2013

The following is a summary of the Environmental Overview of the immigration functions at the Canadian Consulate in Chandigarh (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2013-2014 planning exercise, and is current as of January 2013.

Areas in blockquote are direct passages from the Environmental Overview.

Environment

The Canadian Consulate in Chandigarh (“CIC Chandigarh”) provides temporary residence processing in northwest India.  It recorded a record number of decisions in 2012.

In partnership with Delhi and the VAC (VFS), prospective non-immigrant applications are created in GCMS overnight for all applications received by VFS in India, before the
applications are physically delivered to mission the following morning. File creation by QRC is not possible due to Indian law prohibiting the international transfer of personal data. As there is no more requirement to scan the 2D barcodes, file creation is completed much more quickly. Only consequence is that Chandigarh appears as the secondary office for all applications received in India (Delhi showing as the principal office); statistical reports and the monitoring of pending applications must take this into consideration.

The elimination of 20 barcode scanning and the overnight creation of prospective applications has freed up some time for the LE3 Registry Clerks, which has been directed to actioning incoming correspondence (no backlog) and also to the scanning of finalized applications into GCMS. Latter takes more time than traditional filing, but gains will be enjoyed downstream; eg. for actioning A TIP requests because the supporting 2013-2014 International Region Integrated Management Plan documents will already be in GCMS and will be accessible to the A TIP section at HQ.

A full-time resource is devoted to responding to the 75-100 e-mail communications that CIC-Dakar receives each day.

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Yes, IRCC Can Deny PNP Nominees Permanent Resident Visas

Yes, IRCC Can Deny PNP Nominees Permanent Resident Visas

10th Jan 2014 Comments Off on Yes, IRCC Can Deny PNP Nominees Permanent Resident Visas

Last updated on September 12th, 2019

The Immigration and Refugee Protection Regulations (“IRPR“) provide that an immigration officer may issue a negative substituted evaluation and refuse an application where the officer is not satisfied that a provincial nomination certificate is an appropriate indicator of whether an applicant will be able to successfully establish themselves economically in Canada.  Subsections 87(3) and (4) of the Regulations state that:

Substitution of evaluation

(3) If the fact that the foreign national is named in a [provincial nomination certificate] is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada.

Concurrence

(4) An evaluation made under subsection (3) requires the concurrence of a second officer.

I have reproduced below an excerpt from the recently decided Federal Court decision Kousar v. Canada, 2014 FC 12, which illustrates this point.  Because Kousar was a Federal Court case, Immigration, Refugees and Citizenship Canada’s (“IRCC”) refusal reasons become part of the public record.  Accordingly, while I was not the lawyer involved with either the initial application or the court case, I was able to obtain and publish the refusal decision.

Kousar involved a refusal based on an officer’s determination that the applicant’s overall IELTS band-score of 3.5 indicated that the applicant was unlikely to establish herself economically in Canada.  The applicant was unable to overcome the officer’s concerns.  The officer’s refusal states:


The issue of IRCC refusing provincial nominees due to language concerns despite the provinces having approved their provincial nomination applications has become common enough that there is developing jurisprudence on it.

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Biometric Travel Headaches

7th Jan 2014 Comments Off on Biometric Travel Headaches

On December 1, 2013, I noted that Canada has introduced a biometric requirement for nationals of certain countries.  I wrote:

Biometrics is the measurement of unique physical characteristics, such as fingerprints and facial features, for the purpose of verifying identity. Citizenship and Immigration Canada’s (CIC’s) goal in requiring that certain foreign nationals provide biometrics is to make it more difficult for individuals to use another person’s identity, and to prevent criminals, deportees and previous failed refugee claimants from (re-)entering Canada using false identification.

By Dec. 11, citizens of the following countries will be required to give their biometrics (fingerprints and digital photograph) when they apply for a visitor visa, study permit or work permit: Afghanistan, Albania, Algeria, Bangladesh, Burma (Myanmar), Cambodia, Colombia, Democratic Republic of Congo, Egypt, Eritrea, Haiti, Iran, Iraq, Jamaica, Jordan, Laos, Libya, Nigeria, Pakistan, Palestinian Authority, Saudi Arabia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tunisia, Vietnam and Yemen.

Applicants from the above-listed countries will be required to go to a Visa Application Centre (VAC) or a visa office (if a VAC is not available) to give their fingerprints and have their photographs taken. Digital copies will be sent to the Royal Canadian Mountain Police and to CIC, who will then check the fingerprints against criminal, refugee and visa application records. When successful applicants arrive at Canadian ports of entry, the Canada Border Services Agency will use the photograph and/or fingerprint to verify the identity of individuals.

Because of the biometrics requirement, it will no longer be possible for people from the above-mentioned countries to submit paper applications directly to a Canadian embassy or consulate. Instead, these individuals will have to apply in person at VACs. Online applicants will also receive instructions to appear at a VAC to provide their fingerprints.

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What Will Cause A Refused NEXUS Application

What Will Cause A Refused NEXUS Application

1st Jan 2014 Comments Off on What Will Cause A Refused NEXUS Application

As I have previously written about in this blog, there are numerous benefits to being a member in the NEXUS program.  Membership in NEXUS enables people to save time through the use of automatic self-serve kiosks at airports, designated lanes at the land border, and expedited security procedures at airports.   Indeed, on November 13, the Canadian Air Transport Security Authority started a pilot project featuring a new, expedited screening line for NEXUS members at the security screening checkpoint for flights to the U.S. in Terminal 1 at Toronto Pearson International Airport.  NEXUS members who participate in this pilot are permitted to keep shoes, belts and light jackets on and leave laptops, large electronics, and compliant liquids, aerosols and gels in carry-on bags.

For many people, one of the frustrating things about the NEXUS program is that the Canada Border Services Agency (“CBSA“) website is very vague as to what may cause Canada to refuse someone’s NEXUS application.  It states:

NEXUSrefusalreasons

Canada’s Presentation of Persons (2003) Regulations, SOR/2003-323 (the “PoP Regulations“) are also not clear as to what may disqualify someone from being able to enrol in NEXUS.  The Regulations state:

6. The Minister may issue an authorization to a person to present themself in an alternative manner described in paragraph 11(a), (b), (c) or (e) if the person:

(a) is

(i) a permanent resident, within the meaning of the Immigration and Refugee Protection Act, or a Canadian citizen, or

(ii) a citizen or permanent resident of the United States;

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