In April the Gazette announced that a sponsorship bar would soon come into effect prohibiting individuals that have been convicted of certain offenses from sponsoring family members. One of the offenses that would result in a bar was violence against someone that the wannabe sponsor had dated, which seemed a little vague. Now that the sponsorship bar has come into effect, and Citizenship and Immigration Canada has released a detailed Operational Bulletin on the matter, lets see if the if the new rule is a little clearer. The Operational Bulletin starts by noting the gap in the law exposed by the Brar (2008 FC 1285) decision, where the Federal Court found that an individual who had murdered his brother’s wife was allowed to sponsor his own wife, as the Immigration and Refugee Protection Regulations did not specifically bar an individual who had killed a sister-in-law from sponsoring another family member. Under the new Regulations, subject to certain exceptions, anyone convicted of an indictable offense involving the use of violence punishable by a maximum term of imprisonment of at least 10 years or an attempt to commit such an offense will be barred from sponsorship. As well, subject to certain exceptions, … Read More
Leaving Canada by the end of Authorized Stay
How can temporary foreign workers show that they will leave Canada at the end of their work permit?
The Right of Permanent Resident Visa Holders to Appeal to the IAD
Section 63(2) of the Immigration and Refugee Protection Act (“IRPA“) provides that: A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing. The jurisprudence around this section has seemingly been to narrow it. Jurisprudence Ismail v. Canada On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). That question was: For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made? The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During … Read More
Working without a work permit: what jobs can a visitor do in Canada?
The following is an article that I recent wrote for The Canadian Immigrant: It is generally understood that visitors to Canada cannot work without work permits. The consequences for doing so can include removal from Canada, being unable to apply for work permits for six months, year-long prohibitions on returning to Canada and even possible criminal sanctions for employers. Canadian immigration legislation defines “work” broadly. It includes any activities for which wages are paid or commission is earned, and any activity that competes directly with the activities of Canadian citizens or permanent residents in the Canadian labour market. Because of this, volunteer work, unpaid internships and practicums may also require work permits. However, while the definition of what constitutes work is broad, there are many activities that people would generally consider work that do not require work permits. Remote work In our increasingly globalized and digitized world, perhaps the most important work permit exemption is for remote work. Canada’s immigration department allows visitors to Canada to perform long-distance (by telephone or internet) work if their employer is outside Canada and they are remunerated from outside Canada. As such, many people who work remotely for companies abroad are able to reside … Read More
Inadmissibility for Being a Danger to Canada
Section 34(1)(d) of the Immigration and Refugee Protection Act (the “IRPA”) provides that a permanent resident or a foreign national is inadmissible on security grounds for being a danger to the security of Canada. Standard of Proof Section 33 of the IRPA provides that the facts which can give rise to an inadmissibility under IRPA s. 34(1)(d) include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, the Supreme Court of Canada stated that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities and that reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. Requirements In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, the Supreme Court stated: While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, … Read More
Maintained (Implied) Status – What It is, and What Changed Recently
Maintained (previously known as implied) status is perhaps one of the most misunderstood concepts of Canada’s immigration system. Many mistakenly question its legality. Others fail to appreciate its unique requirements, and abruptly find themselves without status. Recent procedural changes and court decisions in Canada have only added to the confusion. Implied Status Regulations 183(5), 186(u), and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) provide the legal basis for implied status. In brief, if a foreign worker, international student, or visitor files an application to extend his (or her) status in Canada, then he may remain in Canada on the terms of his original status until Immigration, Refugees and Citizenship Canada (“IRCC”) makes a decision on his extension application. Accordingly, a foreign worker can continue to work, an international student can continue to study, and a visitor can continue to reside in Canada during IRCC’s processing of the extension application. Considering that as of writing visitor, worker, and student extension applications took IRCC 75, 60, and 42 days respectively to process, the extra time that implied status can allow an individual to carry on with his life in Canada can be significant. In order to take advantage of maintained … Read More
Responsibility for Missed E-mail Communication
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?
The Super Visa
Parents and grandparents of Canadian citizens and permanent residents can apply for two types of Temporary Resident Visas to visit their relatives in Canada. The first is a standard, multiple-entry visa. The second is what is known as a Super Visa. A normal Temporary Resident Visa generally is a multiple entry-visa valid for the duration of an applicant’s passport, or 10 years, whichever is shorter. Unless the Canada Border Services Agency authorizes indicates, it allows applicants to stay in Canada for up to six months without having to apply to extend their temporary resident status. A Super Visa is also valid for up to 10 years, or the duration of the applicant’s passport, whichever is shorter. It allows parents and grandparents to stay in Canada for up to two years without having to renew their status. Parents and grandparents who are from visa-exempt countries can also apply for Super Visas in order to receive Letters of Introduction that will allow them to stay in Canada for up to two years without having to renew their status. It is important to note that the two year entry only applies to the initial stay. A parents or grandparent is eligible for a Super … Read More
Employment Reference Letters and Immigration
Most Canadian economic immigration programs require that applicants have qualifying work experience. In order to demonstrate that past and current positions qualify, applicants are required to provide references letters from their employers. Such reference letters must state the position title, duration, duties and wage. Prospective immigrants who are obtaining reference letters should understand how officers determine whether specific employment experience meets program eligibility requirements, why reference letters are needed and how immigration officers will assess them. Relying on the NOC system In determining whether work experience is qualifying, Immigration, Refugees and Citizenship Canada (IRCC) relies on the Government of Canada’s national occupational classification (or NOC) system. In the federal skilled worker class, for example, applicants need to have within the 10 years before they apply at least one year of full-time work experience, or the equivalent of part-time work, in their primary occupation that is listed on the NOC website as being skilled. In the Canadian experience class, meanwhile, applicants need to show that they have acquired in Canada, within the three years before the date on which they apply for permanent residence, at least one year of full-time work experience in one or more occupations that are listed on … Read More
IRCC/ESDC Employer Compliance Inspections
All employers of temporary foreign workers in Canada need to understand how the employer compliance regime works. Both Immigration, Refugees and Citizenship Canada (“IRCC”) as well as the Department of Employment and Social Development (“ESDC”) regularly audit and inspect the employers of foreign workers to make sure that they are complying with the Temporary Foreign Worker Program and/or the International Mobility Program (which are the two main programs through which foreign nationals can work in Canada). Both ESDC and IRCC have indicated that about 25% of employers can expect an inspection in any given year. Most of these inspections and audits start with the employer receiving a letter from the Government of Canada informing them that they will be examined on a multitude of factors, including whether they have employed the foreign national in the job that they were supposed to, whether they paid the wages that they were supposed to, whether the employer complied with laws regulating employment, whether they maintained records and whether they took reasonable efforts to provide a workplace that was free of abuse. I have embedded below the standard employer compliance letter that is sent out at the start of an audit. Consequences of Non-Compliance Here … Read More