Heading – Genuineness and Caregivers
On June 18, 2019 Immigration, Refugees and Citizenship Canada revamped its caregiver programs. Gone was the requirement that employers first obtain a Labour Market Impact Assessment and that caregivers work in Canada without their families for at least two years before they could apply for permanent residency. Instead, caregivers can now immediately apply for permanent residency if they have a job offer or Canadian work experience in an eligible caregiver occupation and if they meet minimum education and language proficiency requirements and come to Canada with their families right away.
The new caregiver programs have existed for about four months now and it is too early to determine whether they have been a success. An issue that has arisen, however, is the issue of employers and applicants demonstrating that their job offers are genuine.
How the New Caregiver Programs Work
Canada now has two caregiver programs. The first is the Home-Child Care Provider Pilot. The second is the Home Support Worker Pilot. A maximum of 2,750 applications are accepted per year under each stream. In both programs, applicants must demonstrate through standardized language testing that they have Initial Intermediate English or French ability, also known as Canadian Language Benchmark 5, and also that they have at least a one-year post secondary credential.
Applicants must also show that they have two years of full-time Canadian work experience as a Home Child-care Provider or a Home Support Worker, depending on the pilot. Applicants with fewer than two-years experience must show that they have a valid job offer as either a Home Child-care Provider or a Home Support Worker and that they will be able to perform the terms of their job offer in Canada. If they do,Read more ›
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 the fulfillment of the relevant duties. » Read more about: Obstruction of Justice and Resisting Arrest »Read more ›
Article 1E of the 1951 Refugee Convention states:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
The leading case for interpreting Article 1E is Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. There, the Federal Court of Appeal stated:
Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.
In Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, the Federal Court stated that the burden is on the Minister of Citizenship and Immigration to establish a prima facie case that a claimant holds or held status substantially similar to that of nationals in a third country before being able to invoke Article 1E. The Court also found that a claimant’s choice to allow his or her status in a third country to expire amounts to an impermissible form of asylum shopping.Read more ›
Prospective temporary foreign workers in addition to deciding which work permit program they will apply to also need to decide how they will apply for their work permit. There are generally two options. The first is to apply either online or at a Visa Application Center to Immigration, Refugees and Citizenship Canada (“IRCC”) and wait for it to be approved before travelling to Canada. The second is to submit the application to the Canada Border Services Agency (“CBSA”) when entering Canada. There are advantages and disadvantages to each approach.
The Initial Work Permit
Foreign nationals who need a temporary resident visa to visit Canada must submit their work permit applications either online or at a Visa Application Center before they travel to Canada. However, those who do not require a temporary resident visa to visit Canada can apply in person at a port of entry. There are many advantages to applying at a port of entry, and it is typically the preferred approach. First, while IRCC’s work permit processing times range from two weeks to several months, the CBSA will process work permits on the spot. Second, many applicants prefer interacting face to face and speaking with the person who is adjudicating their application. While IRCC will often simply refuse a work permit application because of missing or vague information, the CBSA will essentially interview the person to fill in the gaps.
There are, of course, disadvantages to applying for a work permit in person at a port of entry. First, some people simply do not interview well, especially if English or French is not their first language. Second, if CBSA refuses the work permit application, the person will likely be told that they have to go back to their country of origin, and be denied entry to Canada.Read more ›
Andrew Hayes is a US immigration lawyer who practices in Vancouver.
In this episode we discuss 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?
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 – What is the consequence of being determined to be financially inadmissible?
27:00 – Can a permanent resident of Canada be financially inadmissible to Canada? What about to the United States?
38:20 – Can someone be medically inadmissible to the United States?
43:30 – How are the courts likely to react to Trump’s changes to the public charge rule?
57:20 – Can refugees be financially inadmissible?Read more ›
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?
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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).
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 Baker?
39:00 – What was the Supreme Court of Canada decision in Kanthasamy?
50:00 – What were the Minister’s recent announcements regarding Regulation 117(9)(d)?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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