During the last two weeks of March, 2020, the Government of Canada implemented many measures in response to the COVID19 pandemic. In the immigration context, these measures included travel bans, the suspension of biometrics and the transition of most Immigration, Refugees and Citizenship Canada (“IRCC”) officers to remote work. The changes were frequent, dramatic and difficult to keep up with. They have left a lot of prospective immigrants wondering what exactly is open with regards to Canada’s immigration programs.
Please note that this article was written on April 1, 2020.
Canada is currently denying boarding to most foreign nationals on flights to Canada. There are, however, numerous exemptions to this.
First, individuals who are travelling from the United States who have been in the United States for at least 14 days before they try to travel to Canada by land, sea or air, can travel to Canada if they are asymptomatic. Such individuals must show that they are coming to Canada for essential reasons and not for reasons that are optional or discretionary, such as tourism, recreation or entertainment.
Second, all temporary foreign workers, as well as international students who have a valid study permit or who were approved for a study permit before March 18, 2020, and foreign nationals who were approved for permanent residence before March 18, 2020, but who have not yet travelled to Canada to land as a permanent resident, can travel to Canada.
Third, the immediate family members of Canadian citizens and permanent residents can travel to Canada. Immediate family members includes spouses, common-law partners, children under the age of twenty-two and parents.Read more ›
A quick post today as there is alot going on due to the corona virus, but Justice Annis just released an interesting decision in Pryce v. Canada where he certified the following question:
In the context of a request for humanitarian and compassionate considerations under subsection 25 (1) of IRPA, must an officer consider evidence of past hardship of unconscionable mistreatment of an applicant and her children, not recurring or arising on removal, and not cited as a factor in the Guidelines, but that may accord with the principles in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338 adopted in Kanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61, even if the issue has not been explicitly raised by the applicant as a relevant factor for consideration? If not, may the applications judge raise the question as a new issue in accordance with the principles of R. v Mian, 2014 SCC 54?Read more ›
Last updated on April 1st, 2020
In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada. Current measures under the Non-US OIC and the Quarantine OIC will be effective until June 30, 2020, while current measures under the US OIC will be effective until April 21, 2020, and current measures under the Interim Order are effective until further notice.
Please note that the Canadian government is expected to amend its policies as needed in the coming weeks and months and as such we ask that you contact us for advice before relying on the information provided in this memo.
- PERSONS ALLOWED INTO CANADA
Before determining whether you fall into one of the categories below, please note that any persons exhibiting COVID-19 symptoms (e.g. fever and cough, or fever and breathing difficulties) will not be allowed to board an aircraft to fly into Canada, regardless of your status in Canada. This blanket prohibition affects Canadian citizens and permanent residents. You will, however, be allowed to enter Canada through the Canada–US land border, though you will be subject to the 14-day self-isolation requirement outlined in the Quarantine OIC.
Please note that, even if you fall into one of the exemptions below, foreign nationals seeking to enter Canada must still apply for a Temporary Resident Visa (if you are travelling to Canada as a citizen of a visa-requiring country) or an eTA (if you are flying to Canada as a citizen of a visa-exempt country).
Read more ›
Regulation 203(3)(a) of the Immigration and Refugee Protection Regulations (the “IRPR“) states:
(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:
(a) whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
The Temporary Foreign Worker Manual states that the following principles should guide the assessment of whether the employment of a foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents.
First, an officer conducting an analyis of a Labour Market Impact Assessment (an “LMIA”) application should reflect a reasonable and balanced approach ensuring that officers od not base their decision solely on the outcome of one of the seven labour market factors. An employer can receive a positive LMIA even if this factor is assessed to be negative and an employer can receive a negative LMIA even if this factor is assessed to be positive.
Second, for Owner Operator LMIAs, assessing if the entry of a foreign national will result in the creation or retention of employment opportunities for Canadians and permanent residents holds more weight in determining the impact on the labour market.
Third, the following questions will help guide the assessment of this factor:
- How will the staffing of this position lead to direct job creation or retention?
- How many jobs will be created / retained?
Regulation 215 of the Immigration and Refugee Protection Regulations states that:
215 (1) A foreign national may apply for a study permit after entering Canada if they
(a) hold a study permit;
(b) apply within the period beginning 90 days before the expiry of their authorization to engage in studies in Canada under subsection 30(2) of the Act, or paragraph 188(1)(a) of these Regulations, and ending 90 days after that expiry;
(c) hold a work permit;
(d) are subject to an unenforceable removal order;
(e) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;
(f) are a temporary resident who
(i) is studying at the preschool, primary or secondary level,
(ii) is a visiting or exchange student who is studying at a designated learning institution, or
(iii) has completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution; or
(g) are in a situation described in section 207.
Regulation 215(f)(iii) has been the subject of judicial scrutinity.
The Immigration, Refugees and Citizenship Canada Guidelines state:
Prerequisite course or program of study in Canada before the main program of study
As of June 1, 2014, visitors in Canada who have completed a course or program of study that was previously identified as a prerequisite for their admission into a program of study at a DLI may also apply for a study permit from within Canada [R215(1)(f)(iii)] if they provide both
- a letter of acceptance received from a DLI before or after the completion of the prerequisite course that confirms the course is a prerequisite for admission to the main program
- proof of successful completion of the prerequisite course,
Canada’s Department of Employment and Social Development Canada (“ESDC“) administers the Temporary Foreign Worker Program (the “TFWP“). This is the program through which employers can obtain Labour Market Impact Assessments (“LMIAs“).
The following is a partial reproduction of the TFWP Manual (an internal document) regarding who the employer is for the purpose of administering the TFWP.
Who is the Employer
ESDC policy states that 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 condititions and remunerates the foreign national.
For the purpose of the Temporary Foreign Worker Program, charachteristics of the relationship, such as control and remuneration, including statutory benefits (e.g. CPP and EI) will be reviewed to determine when an employer – employee relationship exists. The total relationship will be examined and assessed, bearing in mind that no one factor is determinative and there is an extensive list of factors that may be examined.
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. The roles and responsibilities of each party must be clear and defined at the time of application.
For the purpose of the Temporary Foreign Worker Program, in cases where a self-employed individual wishes to enter Canada to establish or purchase a business and be involved in its day-to-day operations, the business plan or contract to purchases shares in a business should be evaluated as the job offer. Ownership of shares does not guarantee that a foreign national would qualify as an owner-operator.Read more ›
People who immigrate to Canada are typically aware that if they are convicted of certain criminal offences that they could lose their permanent resident status. When immigrants are charged with criminal offences, immigration lawyers and criminal defense counsel will accordingly often work together to do their best to ensure that those charged do not lead to deportations. It is therefore important to note that the Canada Border Services Agency has recently taken an exceptionally strict approach to interpreting Canadian immigration legislation which could fundamentally change the immigration consequences of violent actions in Canada. The issue is now before the Federal Court of Canada.
The Consequences of Criminal Records
Canadian immigration legislation provides that a permanent resident is inadmissible to Canada on grounds of serious criminality if they have been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
The first thing to note about the above is that a conviction is required. A conviction is a finding by a Canadian court that a person is guilty of an offence. A charge or a confession is not a conviction. A conviction that is set aside on appeal is also not a conviction for immigration purposes, nor is an absolute or conditional discharge, which is where a finding of guilt is made, but no conviction against the individual is registered.
The second thing to note about the above is that only convictions for certain offences will result in a permanent resident being inadmissible to Canada. The offence must either be one whose maximum penalty is a term of imprisonment of ten years or more,Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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