LMIAs – Who is the Employer

17th Oct 2020 Comments Off on LMIAs – Who is the Employer

There would be perhaps few things as frustrating for the potential employers of foreign workers than to go through the Labour Market Impact Assessment process only to learn that they were not considered to be an employer by the Department of Employment and Social Development Canada.

According to the Temporary Foreign Worker Program manual, an employer is an entity (e.g. person, business, corporation or organization) that makes an offer of employment to one or more foreign nationals who provide labour in return for compensation for a specified period of time. The employer is generally the entity that hires, controls working conditions and remunerates the foreign national.

The Manual further states:

Entities Considered the Employer of a Foreign National under the TFW Program:

Canadian-Based Entity

A person, business, corporation or organization based in Canada that makes an offer of employment to one or more foreign nationals.

Foreign-Based Entity

A person, business, corporation or organization that is not based in Canada that makes an offer of employment to one or more foreign nationals to work in Canada. For identification purposes, it is strongly recommended that the foreign-based employer obtain a Canadian business number to facilitate the TFW Program’s assessment of their genuineness.

Group of Employers

In cases where two or more entities are determined to share employer responsibilities by the Department, a group of employers may make an offer of employment to a foreign national.

• All parties handling employer responsibilities relating to the employment of a foreign national (via an LMIA) are considered to be part of a group of employers for the purpose of the TFW Program.

• The Department determines who is able to apply under a Group of Employers,

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LMIAs and Labour Disputes

18th Aug 2020 Comments Off on LMIAs and Labour Disputes

Section 203(3)(f) of the Immigration and Refugee Protection Regulations states an assessment provided by the Department of Employment and Social Development (“ESDC”) with respect to the whether the entry of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada shall be based, in part, on whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress of the employment of any person involved in the dispute.

ESDC policy is short on this matter, and states that employers should not use the Temporary Foreign Worker Program to circumvent a legal work stoppage or to influence the outcome of a labour dispute.

A labour dispute is defined as occuring when the parties to a collective agreement have reached an impasse in their efforts to enter into, renew or revise a collective agreement and require the intervention of a third party (e.g., government labour officials) to resolve the differences.

It does not include all grievances between a union and employer.

Labour disputes, which often arise during collective agreement/contract negotiation between an employer and a union, may include: work stoppage, strikes, refusal to work, picketing, lockouts, etc. They also arise in situations that are in reaction to working to conditions dictated by legislation such as refusal to perform duties when employees feel that their security might be jeopardized, or different views on issues related to labour standards such as overtime, wages and holidays.

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Protected: North Vancouver Playgrounds

4th Aug 2020 Comments Off on Protected: North Vancouver Playgrounds

There is no excerpt because this is a protected post.

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Borderlines Podcast #38 – R v. Zora – The Supreme Court of Canada Addresses Breach of Bail Conditions, with Sarah Runyon

29th Jul 2020 Comments Off on Borderlines Podcast #38 – R v. Zora – The Supreme Court of Canada Addresses Breach of Bail Conditions, with Sarah Runyon

R v. Zora is a 2020 Supreme Court of Canada decision involving the criminal offence of breaching bail conditions. It is relevant in the Canadian immigration context as individuals who are convicted of this crime in Canada, or who are convicted of or commit an equivalent offence abroad, are inadmissible to the country.

Borderlines · #38 – R v. Zora – The Supreme Court of Canada Addresses Breach of Bail Conditions, with Sarah Runyon

Steven and Deanna are joined by Sarah Runyon, who was counsel for Mr. Zora at the Supreme Court. We discuss how bail works in Canada, the offence of breach of bail conditions, and the implications of the Supreme Court decision.

 

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Borderlines Podcast #37 – The Closure of the Canada – US Border and the Supreme Court’s DACA Decision, with Andrew Hayes

29th Jul 2020 Comments Off on Borderlines Podcast #37 – The Closure of the Canada – US Border and the Supreme Court’s DACA Decision, with Andrew Hayes

Andrew Hayes is a US immigration lawyer who practices in Vancouver. His website is www.usborderlaw.com

Andrew, Deanna and Steven discuss the closure of the Canada – US border during COVID-19 and how the agreement has been implemented in the two policies, recent Executive Orders regarding immigration, and the United States Supreme Court decision in Department of Homeland Security et al v. Regents of the University of California et al.

Borderlines · #37 – The Closure of the Canada – US Border and the Supreme Court’s DACA Decision, with Andrew Hayes

2:00 -The closure of the Canada – US border

25:00 – Recent Executive Orders pertaining to immigration in the United States

45:00 – The DACA decision

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Borderlines Podcast #36 – The Canadian Immigration Consequences of COVID19

29th Jul 2020 Comments Off on Borderlines Podcast #36 – The Canadian Immigration Consequences of COVID19

Deanna Okun-Nachoff and Steven Meurrens discuss how COVID19 has caused havoc to Canada’s immigration system, including border closures, operational slowdowns and the suspension of litigation proceedings.

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Borderlines Podcast #35 – The Implications of the Supreme Court of Canada Decision in Vavilov

29th Jul 2020 Comments Off on Borderlines Podcast #35 – The Implications of the Supreme Court of Canada Decision in Vavilov

Vavilov v. Canada (Citizenship and Immigration)is a 2019 Supreme Court of Canada decision in which the Supreme Court of Canada outlined a new framework for the standard of review in Canadian administrative law.

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COVID-19 and Students

20th Jul 2020 Comments Off on COVID-19 and Students

As the summer nears to an end, students will be preparing for the start of the school year.  They will be double checking that they have the most recent version of Zoom on their computers, and possibly upgrading their home internet.  COVID-19 has impacted everyone, and international students have especially been left wondering what their academic future in Canada holds.

Immigration, Refugees and Citizenship Canada has in response to COVID-19 implemented several public policies that international students should know.  Most of them can be found on the IRCC website here:

Prospective and current international students should check the above webpagse daily.  The date that they were last modified can be found at the bottom.  Unfortunately, IRCC updates its COVID-19 policies through stealth editing, so it may be advisable to save the webpage to PDF to track changes.

Here are some of the key measures.

Restrictions on Travelling to Canada

As of July 15, 2020 international students who have a valid study permit, or were approved for a study permit on or before March 18, 2020, can travel to Canada for a non-discretionary purpose. In determining whether a student’s travel to Canada is non-discretionary, the Canada Border Services Agency will consider whether they are established residing and studying in Canada, whether they are expected to begin studying upon arrival, whether their presence in Canada is necessary for their continued participation in their program, whether pursuing online studies is not an option for their school or from their home country, and whether the semester has been cancelled or delayed.

Those who are travelling by air need to pass a health check conducted by an airline before they will be allowed to board their flight. 

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Excessive Demand

22nd Jun 2020 Comments Off on Excessive Demand

Last updated on June 23rd, 2020

Section 38 of Canada’s Immigration and Refugee Protection Act provides that a foreign national is inadmissible on health grounds if their condition is (a) likely to be a danger to the public, (b) is likely to be a danger to public safety, or (c) might reasonably be expected to cause excessive demand on health or social services.  The excessive demand inadmissibility provisions are designed, in part, to reduce the impacts of immigration on Canada’s publicly funded health and social services systems.

People who have a medical condition should not immediately assume, however, that they will be inadmissible to Canada.  First, certain types of immigrants are exempted from excessive demand inadmissibility.  Second, in 2018, the Government of Canada increased the threshold for excessive demand and also excluded certain types of health and social services from rendering someone inadmissible.  Third, those with medical conditions may not be inadmissible if they can show that they will not be a burden on Canada’s publicly funded health and social services systems.  Fourth, the data suggests that the immigration applications of many applicants who are initially declared medically inadmissible are approved.

Immigrants Exempted from Excessive Demand Inadmissibility

Excessive demand inadmissibility does not apply to the spouse, common-law partner or child of a Canadian citizen or permanent resident who is sponsoring them to immigrate.

It also does not apply to refugees and protected persons.

The 2018 Changes

On June 1, 2018 the Liberal Government of Canada enacted a Temporary Public Policy Regarding Excessive Demand on Health and Social Services (the “Public Policy“)

In order to understand the changes it is necessary to understand some key terms.

Section 1 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) defines excessive demand as:

(a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following an individual’s most recent medical exam,

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Off Campus Work

17th Jun 2020 Comments Off on Off Campus Work

Regulation 186(v) of the Immigration and Refugee Protection Regulations provides that a foreign national may work off campus if:

(v) if they are the holder of a study permit and

(i) they are a full-time student enrolled at a designated learning institution as defined in section 211.1,

(ii) the program in which they are enrolled is a post-secondary academic, vocational or professional training program, or a vocational training program at the secondary level offered in Quebec, in each case, of a duration of six months or more that leads to a degree, diploma or certificate, and

(iii) although they are permitted to engage in full-time work during a regularly scheduled break between academic sessions, they work no more than 20 hours per week during a regular academic session;

In brief, international students can work can work part time (up to 20 hours a week) during a regular academic session and full time during regularly scheduled breaks between academic sessions.

The Guidelines

According to the IRCC Guidelines, international students can work off campus without a permit, provided that all of the following statements are true:

  • they hold a valid study permit
  • they are full-time students enrolled at a designated learning institution (DLI)
  • the program in which they are enrolled is a post-secondary academic, vocational or professional training program, or a vocational training program at the secondary level offered in Quebec
  • the program of study is at least 6 months in duration and leads to a degree, diploma or certificate

An academic program is defined as a post-secondary program that awards academic credentials to persons for whom the normal entrance requirement is high school completion or higher.

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