Immigration, Refugees and Citizenship Canada’s (“IRCC”) International Mobility Program has a bridging open work permit program for temporary foreign workers currently working in Canada who have submitted permanent residence applications under the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Provincial Nominee Program (“PNP“), or the Federal Skilled Trades Program (“FSTP“). Bridging open work permits are a huge and positive development for Canadian employers with employees who have filed permanent residence applications under one of Canada’s economic programs. CIC’s introduction of bridging work permits removes a significant issue which many temporary foreign workers previously encountered, namely that they were unable to extend their work permits during CIC’s processing of their permanent resident applications without their employers first having to obtain positive Labour Market Impact Assessments, an uncertain process which often takes months. Eligibility Temporary foreign workers currently working in Canada are eligible to apply for a bridging work permit if they: are a foreign national in Canada; have valid status on a work permit that is due to expire within 4 months; be the principal applicant on an appliation for permanent residence under the FSWP, CEC, PNP or FSTC; received a positive eligibility decision on their permanent residence … Read More
Chipping Away At Discretion
Discretion is the freedom to decide what should be done in a given situation. In the criminal justice system, in 2014 the Supreme Court of Canada (the “SCC“) in R v. Anderson recognized that prosecutorial discretion “is a necessary part of a properly functioning criminal justice system.” Examples of prosecutorial discretion include the decision to repudiate a plea agreement, the decision to pursue a dangerous offender application, the decision to prefer a direct indictment, the decision to charge multiple offences, the decision to negotiate a plea, the decision to proceed summarily or by indictment, and the decision to initiate an appeal. Similarly, in R. v. Beaudry, the Supreme Court recognized the importance of police discretion, noting that: Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”. The ability — indeed the duty — to use one’s judgment to … Read More
Adjourning an Immigration Division Hearing
Rule 43(1) of the Immigration Division Rules, SOR/2002-229 states: Application to change the date or time of a hearing 43 (1) A party may make an application to the Division to change the date or time of a hearing. Factors (2) In deciding the application, the Division must consider any relevant factors, including (a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application; (b) when the party made the application; (c) the time the party has had to prepare for the hearing; (d) the efforts made by the party to be ready to start or continue the hearing; (e) the nature and complexity of the matter to be heard; (f) whether the party has counsel; (g) any previous delays and the reasons for them; (h) whether the time and date fixed for the hearing was peremptory; and (i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice. Duty to appear at the hearing (3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the … Read More
Where Canada’s Political Parties Stand on Immigration
On October 21, 2019 Canada will have its 43rd Parliamentary election. There are six main political parties running. The first is the Liberal Party of Canada, led by Prime Minister Justin Trudeau. The Liberals are generally regarded as a centrist party and have governed since October, 2015. The second is the Conservative Party of Canada, led by Andrew Scheer. The Conservatives are a centre-right party that previously governed Canada from 2006-2015 under Stephen Harper. The third is the New Democratic Party, a left-wing or progressive party, led by Jagmeet Singh. The fourth is the Green Party of Canada, led by Elizabeth May, a party that is typically known for its environmental platform, although it does have a detailed platform on all of the important issues facing Canada. The fifth is the Bloc Québécois, led by Yves Francois Blanchet. The Bloc is a Quebec nationalist party that only runs candidates in Quebec. Finally, there is the People’s Party of Canada, a recently formed right-wing party led by Maxime Bernier. As of writing, polls suggest that Canada is likely heading to a minority government. This means that none of the political parties above will win enough seats to govern without the support … Read More
Obstruction of Justice and Resisting Arrest
Section 129 of the Criminal Code, RSC 1985, c C-46 states: Offences relating to public or peace officer: 129 Every one who (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, (b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or (c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, is guilty of (d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (e) an offence punishable on summary conviction. There are several principles pertaining to s. 129 of the Criminal Code that can be helpful to determining equivalency. Ancillary Powers Doctrine In the Supreme Court of Canada decision Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canda held that a police power to arrest someone who is acting lawfully in order to prevent a breach of the peace is not reasonably necessary for … Read More
Borderlines Podcast #32 – Keep Out the Poor – How Canada and the US Address Immigrants on Welfare, with Andrew Hayes
A comparison of how the immigration systems of Canada and the United States each deal with the issue of immigrants and social assistance. How similar is the “public charge” rule in the United States and “financial inadmissibility” in Canada? What is a sponsorship bar? Can permanent residents be deported for imposing a fiscal burden on the state? Andrew Hayes is a US immigration lawyer who practices in Vancouver. 00:30 – How does US immigration law and policy development work? 1:45 – What is the public charge rule? 2:30 – What is an affidavit of support? 4:00 – Does the United States have a points based economic immigration system? 5:40 – What are the concerns about Donald Trump’s changes from a substantial impact? 8:00 – What is the Low Income Requirement in Canada? Is there a similar requirement in the United States? 11:00 – There are often situations where the sponsor of a family member may be poor, but the breadwinner of the family is the prospective immigrant. How does Canadian and American immigration law account for this? 13:00 – Are affidavits of support usually enforced? What about sponsorship undertakings? 23:00 – How does financial inadmissibility work in Canada? 25:30 – … Read More
Borderlines Podcast #31 – How Much Does Immigrating Matter on Which Officer or Judge You Get? with Sean Rehaag
Sean Rehaag is an Associate Professor at Osgoode Hall Law School. His academic research focuses on empirical studies of immigration and refugee law decision-making processes. Sean, Deanna, Peter and Steven discuss his quantitative research which has used large data-sets to study extra-legal factors that influence outcomes in Canadian refugee adjudication. Does immigrating to Canada, getting refugee status or winning a judicial review simply depend on the luck of who decides your application?
Borderlines Podcast #30 – Excluding Family Members from Immigrating vs. Compassion, with Jamie Chai Yun Liew
Jamie Chai Yun Liew is a law professor at University of Ottawa and an immigration lawyer. She acted for the Canadian Council for Refugees as intervener before the Supreme Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration). She can be found on Twitter @thechaiyun Jamie, Peter, Deanna and Steven discusses humanitarian & compassionate considerations in Canadian immigration law, including the Supreme Court of Canada decisions in Baker and Kanthasamy. We also discussed Regulation 117(9)(d), which excludes unexamined family members from future sponsorship, and the recently announced pilot to mitigate the impact of this exclusion. 2:45 – What is Regulation 117(9)(d)? 6:30 – What is a Family Member? 7:00 – What does it mean to be “examined” for immigration purposes? 7:30 – What are the consequences of someone’s ability to immigrate to Canada if they have an inadmissible family member? 14:00 – How does IRPR r. 117(9)(d) work to exclude immigration? 15:45 – Why would someone not declare a family member when they immigrate? 26:00 – What options are available to bring a family member excluded by Regulation 117(9)(d) to Canada? 33:00 – What is the difference between a humanitarian & compassionate application vs. a family sponsorship? 36:00 – What was the Supreme Court of Canada decision in … Read More
Intra-Company Transfers – Specialized Knowledge
On June 9, 2014, Immigration, Refugees and Citizenship Canada published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“). OB-575 introduced more stringent requirements to the Intra-Company Transferee – Specialized Knowledge program. Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage. Specialized Knowledge In order to qualify as an Intracompany Transeferee (“ICT“) – Specialized Knowledge applicantsmust demonstrate a high degree of both proprietary knowledge and advanced expertise. Specialized knowledge is unique and uncommon, and according to the Immigration, Refugees and Citizenship Canada (“IRCC“) website “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.” The onus is on applicants to provide evidence that they meet these requirements. Proprietary knowledge is company-specific expertise related to a company’s product or service. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although IRCC does not mandate that “advanced proprietary knowledge” is required, it states that: Advanced … Read More
Dance Instructors, Guest Speakers, and Working in Canada Without a Work Permit
Does a professional ballet teacher require a work permit and a Labour Market Impact Assessment to give a 4 day seminar in Vancouver? The answer is.. it depends. Section 186(j) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that: Work Without a Work Permit 186. A foreign national may work in Canada without a work permit (j) as a guest speaker for the sole purpose of making a speech or delivering a paper at a dinner, graduation, convention or similar function, or as a commercial speaker or seminar leader delivering a seminar that lasts no longer than five days; No Work Permit Required In accordance with IRPR 186(j), the Immigration, Refugees and Citizenship Canada (“IRCC“) website explicitly states that guest speakers for specific events, including as an academic speaker at a university or college function, and commercial speakers or seminar leaders, can enter Canada to work without a work permit provided the seminar to be given by the foreign speaker does not last longer than five days. IRCC defines a seminar as “a small class at a university, etc. for discussion and research, or a short intensive course of study, or a conference of specialists.” IRCC defines commercial speakers as “people who sell tickets or registrations … Read More