As an increasing number of Canadian employers employ foreign workers, and the Government of Canada is taking an increasingly strict approach in enforcing the rules regulating the employment of foreign workers, the issue of how companies can protect themselves when they buy companies that employ foreign workers is becoming increasingly significant. As well, as explained in detail on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, corporate restructurings, mergers and acquisitions may themselves trigger work permit-related issues for employer compliance. It is accordingly important for all companies that are considering merging with or acquiring another company to consider whether (a) the transaction will result in the need for new work permits for existing employees and (b) whether the company that will be employing these foreign workers will become liable for any non-compliance of the previous entity. Understanding the “Successor in Interest” Concept While the IRCC website is clear that employers become responsible for compliance post restructuring, merger or acquisition, the issue of whether the new employers become liable for previous non-compliance is more nuanced, and depends on whether the new employer has become the “successor in interest” for the portion of the organization where the temporary foreign workers were employed. … Read More
Borderlines Podcast #137 – Gifts from Amin, Ugandan Asian Refugee Resettlement to Canada, with Shezan Muhammedi
Shezan Muhammedi is an Acting Assistant Director at Immigration, Refugees and Citizenship Canada and an Adjunct Research Professor at the University of Carleton. He is the author of Gifts from Amin – Ugandan Asian Refugees in Canada. In 1972, Ugandan dictator Idi Amin ordered the expulsion of nearly 80,000 Asians, predominantly of Indian descent, giving them just 90 days to leave the country. Many of these individuals, whose families had lived in Uganda for generations, were stripped of their assets and forced to flee. Canada, under Prime Minister Pierre Trudeau, was one of the countries that responded by welcoming approximately 7,000 Ugandan Asians. Meera Thakrar is a Partner at Larlee Rosenberg, Barristers & Solicitors. Her father was one of the Asian Ugandans expelled by Idi Amin. Shezan is continuing to collect the oral histories of Ugandan Asian expellees as part of a study. If you would like to share your story with him please contact ShezanMuhammedi@cunet.carleton.ca
Addressing Newfoundland Nurses
On December 15, 2011 the Supreme Court of Canada (“Supreme Court“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses“). In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review. Rather, the Supreme Court stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. The Supreme Court further stated that (citations removed for ease of reading): Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. The fact that there may be an alternative interpretation of the agreement to that provided by … Read More
Borderlines Podcast #136 – National Security and Immigration Law, with Justice Richard Mosley (Retired)
Richard Mosley is a retired judge from the Federal Court of Canada, with a background and specialization there in national security cases. We discuss the path to becoming a judge specializing in national security, the unique physical environment of working on such cases, and the security provisions within Canadian immigration law. Other topics include delays in processing, abuse of authority, CSIS, mandamus applications, the art of decision writing, and the importance of diversity on the bench.
Flagpoling
“Flagpoling,” also known as “sidedooring,” are terms which describe the process of individuals who are inside Canada travelling briefly to the United States and then upon re-entry to Canada submitting an application at a Canadian port of entry (“POE“). For most individuals who are eligible to flag-pole it is the preferred method to obtain study permits, work permits, and to have their Confirmations of Permanent Residence signed. The reason is because it typically takes a Canada Border Services Agency (“CBSA“) officer less than 30 minutes to process an application, whereas it can take Immigration, Refugees and Citizenship Canada (“IRCC“) weeks or months to either process an application or schedule a landing interview. Who Can Flag-Pole (Work Permits) In the work permit context, regulation 198 of the Immigration and Refugee Protection Regulations (“IRPR”) provides that: (1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa. Exceptions (2) A foreign national may not apply for a work permit when entering Canada if (a) a determination under section 203 is required, unless (i) the Department of Employment and … Read More
H&C for Ukrainians
Since the Russian invasion of Ukraine in 2022, millions of Ukrainians have been displaced, with many seeking refuge in Canada. Initially, Canada introduced the Canada-Ukraine Authorization for Emergency Travel (“CUAET”), a temporary visa program offering expedited entry and work or study permits for Ukrainians and their family members. While this program has been a lifeline for many, it is not a pathway to permanent residency. While some Ukrainians are applying for permanent residency through narrow dedicated programs, family reunification or economic streams, others are turning to humanitarian & compassionate (“H&C”) applications. H&C Applications A humanitarian and compassionate application allows individuals who do not meet the usual eligibility criteria for permanent residency to request consideration based on compelling personal circumstances. Immigration officers assess the application on a case-by-case basis, focusing on factors such as establishment in Canada, family ties, best interests of any children involved and hardship that would result from removal For Ukrainians considering an H&C application, presenting a strong case is essential. This involves: Documenting Establishment: Proof of employment, education, community involvement, and other ties to Canada. Highlighting Hardship: Detailed evidence of the risks and challenges of returning to Ukraine. Demonstrating Best Interests of Children: Evidence of how remaining … Read More
The Canadian Experience Class
The following is an e-mail exchange between an immigration representative and Immigration, Refugees and Citizenship Canada regarding the Canadian Experience Class (the “CEC“). The Canadian Experience Class allows individuals with one-year skilled work experience in Canada to apply to immigrate. As with any program, questions emerged regarding specific requirements, including whether work in Canada for a foreign employer count towards the one-year requirement. Please note that what I have reproduced below should not be viewed as legal advice. The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. Question – May 28, 2013 Dear Sir / Madam, I was wondering if you might be able to provide some guidance regarding a CEC application. I have a client (foreign worker) who has a valid work permit (initially under C10 and then with supporting LMO) where the employer is a foreign company but does not have any operations in Canada. The foreign employer is hoping to open up an office in ____ but in the meantime, has the foreign worker attending various client business meetings pitching for potential engagements of the foreign company and providing some … Read More
Borderlines Podcast #135 – Baffling Immigration Rules and CILA’s Statement on Consultants
Deanna and Steven discuss the most baffling rules and programs in Canada’s immigration system. We also answer multiple requests to comment on the Canadian Immigration Lawyers Association recent statement that immigration consultants should be restricted to working for lawyers.
Borderlines Podcast #134 – Work Permit Program Recommendations
A discussion of the House of Commons Standing Committee on Citizenship and Immigration’s study titled Report 21 – Conditions for Growth: Reconsidering Closed Work Permits in the Temporary Foreign Workers Program.
The IRCC Employer Portal
The Immigration, Refugees and Citizenship Canada (“IRCC“) Employer Portal is a mandatory online tool for Canadian employers hiring foreign workers on closed work permits in the International Mobility Program (“IMP”). Purpose The portal is mandatory for employers hiring through LMIA-exempt streams, such as intra-company transferees, post-graduation work permit holders, or workers under free trade agreements like CUSMA. The portal is designed to require that employers submit offers of employment that are used to measure compliance under the IMP. Employers must use the portal to: Submit an Offer of Employment: Employers provide details of the job, including wages, duties, and working conditions, ensuring they meet Canadian labor standards. Pay the Employer Compliance Fee: A non-refundable fee ($230 as of 2024) supports program compliance and enforcement. Demonstrate Compliance: Employers use the portal to prove they’ve met their obligations, such as maintaining working conditions and wages promised in the offer. Jurisprudence In De Silva v. Canada (Citizenship and Immigration), 2024 FC 1798, the Department of Justice argued that when assessing work permit applications visa officers are required by program processing instructions to rely on the information contained in the portal, rather than weighing it against other information. Justice McHaffie disagreed, noting that IRCC … Read More