Borderlines Podcast Episode 6 – Dani Willetts on the Transition from Working for CIC to being an Immigration Consultant

27th Sep 2016 Comments Off on Borderlines Podcast Episode 6 – Dani Willetts on the Transition from Working for CIC to being an Immigration Consultant

On the 6th podcast episode, Dani Willetts joins Peter Edelmann and I to discuss the decision making process at Canada’s immigration department, her experience transitioning from a career working for CIC to being an immigration consultant, some recent cases impacting international graduates in particular with regards to the Post-Graduate Work Permit program, a recent Parliamentary report on the Temporary Foreign Worker Program, and the discovery that Canada has started negotiating an extradition treaty with China.

Dani Willetts is an immigration consultant at TDWImmigration. From 1989 – 2012 she worked in numerous capacities with Canada’s immigration department, including as a Supervisor in Vancouver.

First, using three recent cases as examples we discussed how Immigration, Refugees and Citizenship Canada officers view themselves. Do they see themselves as administering the Immigration and Refugee Protection Act or as administering Canadian immigration programs.  Three recent cases from the Federal Court were used to guide our discussion.

The first was Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, where the Federal Court determined that a visa officer was correct when it determined that a person  had engaged in unauthorized study in Canada while in Canada as a visitor.  Ms. Zhang had arrived in Canada on a visitor’s visa on August 23, 2014, which was valid until February 23, 2015. On January 16, 2015, she applied for, and was eventually granted an extension of that visa, until August 30, 2015. On January 5, 2015, she began a 14-week English as a Second Language [ESL] program.  The Officer determined that the study was unauthorized because Ms. Zhang did not complete the studies within the initial period authorized by her stay.  When Ms. Zhang argued that this was unfair because the IRCC said that she could study,

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Best Interests of the Child can Be Considered in Detention Reviews

22nd Sep 2016 Comments Off on Best Interests of the Child can Be Considered in Detention Reviews

The Canadian Council for Refugees (the “CCR“) has just distributed the following two PDFs to its followers.  In brief, the Federal Court has issued an order saying that the best
interests of non-detained children can be considered in detention reviews (e.g. of a parent who is accompanied in detention by a child who is in detention, but not legally detained).

 

As copied from the CCR e-mail, the Order confirms that:

  1. the factors to be considered by the Immigration Division when deciding whether to detain or release are not limited to those enumerated under R. 248 of the Regulations;
  2. the Immigration Division has the jurisdiction to consider the interests of a child who is a Canadian at an immigration holding centre (i.e. residing there with her detained parent) even if that child is not under a detention order herself and therefore not directly subject to the Immigration Division’s jurisdiction; and
  3. the interests of a child may be taken into account (but are not a primary consideration) when determining whether a person is a flight risk.

Also, according to the CCR, Canada Border Services Agency Hearings Officers have been instructed to bring this Order to the attention of Immigration Division members.  The following instructions have also been provided to officers.

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Borderlines Podcast Episode 5 – Marilyn Sanford

19th Sep 2016 Comments Off on Borderlines Podcast Episode 5 – Marilyn Sanford

On the 5th podcast episode of Borderlines, Marilyn Sanford joined Peter Edelmann and Steven Meurrens to discuss whether the Canada Border Services Agency (the “CBSA”) can search people’s electronic devices.

In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicized case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall, and provided her insights on the case.

Finally, Peter and Steve touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.

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Changing Names in a LMIA Application

15th Sep 2016 Comments Off on Changing Names in a LMIA Application

Last updated on August 19th, 2019

The latest ESDC wiki on LMIA name changes can be found here. Perhaps the most interesting change has been that the restriction on one name change has been removed, but employers must send their request to ESDC within 3 weeks of the LMIA expiring.

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Restoration of Status

8th Sep 2016 Comments Off on Restoration of Status

Last updated on October 25th, 2019

There are many ways that people who come to Canada legally can suddenly find themselves inside Canada without valid status.  Some may simply forget to submit applications to extend their status prior to the end of the period of their authorized stay.  Others may submit their extension applications on time only to have Immigration, Refugees and Citizenship Canada (“IRCC”) later refuse or reject their applications for being incomplete, leaving them without status in Canada.

While Canadian immigration law provides such foreign nationals with some options to regain valid temporary resident status in Canada, it is important that people understand the risks associated with each.

Leaving Canada and Re-Entering

The first, and arguably the riskiest, way that a foreign national can regain legal status in Canada is to exit Canada and re-enter.  Anyone who does this will need to satisfy the Canada Border Services Agency (“CBSA”) that they will leave Canada by the end of their authorized stay, which can sometimes be tricky if the person has previous overstayed.  As well, if the foreign national wants to work or study, then they will need to demonstrate to CBSA that they are eligible to do so.

Restoration of Status

For many, exiting Canada and re-entering is simply too risky or too expensive if they do not have a US visa.  Luckily, Canada’s Immigration and Refugee Protection Regulations provide that if a visitor, worker, or student loses their status in Canada, then they can apply to restore their status if they do so within 90 days of their status expiring.

Restoration applications must be submitted either online or by mail to IRCC.  Restoration applications cannot be submitted while entering Canada at a Canadian port of entry.

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Studying without a Study Permit

7th Sep 2016 Comments Off on Studying without a Study Permit

Foreign nationals are required to obtain a study permit for engaging in academic, professional, vocational or other education or training that is more than six months in duration at a designated learning institution (“DLI“) in Canada.

So what does this mean, and who doesn’t need a study permit?

The  Immigration and Refugee Protection Act (the “Act“) provides that every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

The Immigration and Refugee Protection Regulations (“IRPR“) further provide that a foreign national does not need a study permit to study in the following circumstances:

(a) if they are a family member or a member of the private staff of a foreign representative who is properly accredited by the Department of Foreign Affairs and International Trade and who is in Canada to carry out official duties as a diplomatic agent, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies or of any international organization of which Canada is a member;

(b) as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of those armed forces;

(c) if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada; or

(d) if they are an Indian.

Short-Term Courses 

There is alot of confusion regarding whether people can complete short-term courses in Canada without a study permit.  

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Immediate Measures Are Needed to Help International Graduates Stay in Canada

6th Sep 2016 Comments Off on Immediate Measures Are Needed to Help International Graduates Stay in Canada

John McCallum, Canada’s Minister of Immigration, Refugees and Citizenship Canada (“IRCC”), has spent much of the summer conducting a speaking tour about upcoming changes to Canada’s immigration system.  He has particularly focused on how he wants to welcome more international students as permanent residents.

This will be a welcome development, because so far Minister McCallum’s tenure as immigration minister has been a disaster for international graduates whose post graduate work permits have already or are soon expiring.   Mr. McCallum’s March 2016 cuts to Canada’s economic immigration levels have resulted in IRCC’s Comprehensive Ranking System’s points requirement for foreign nationals to receive an Invitation to Apply for Canadian permanent residency remaining out of reach for most international graduates.

Minister McCallum has promised that improvements are coming in the fall, although the details are vague. Given that the Minister recognises that the current situation is untenable, it is incomprehensible why he has not introduced temporary measures to alleviate the frustration and dashed dreams that many international graduates living in Canada are experiencing, if they have not already had to return home. Mr. McCallum’s decision to not introduce temporary measures is especially galling given how simple and easy to implement they could have been.

Express Entry

In 2015, the previous Conservative Government of Canada introduced Express Entry, an application intake management system to reduce the number of people who could apply for permanent residency to Canada.

Under Express Entry prospective immigrants to Canada can no longer immediately apply to economic immigration programs for which they qualify.  Rather, people who wish to apply for Canadian permanent residency first have to enter a pool of potential applicants.

Applicants in this Express Entry pool are ranked according to a Comprehensive Ranking System that ranks people using an algorithm that factors age,

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