A comparison of 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? Andrew Hayes is a US immigration lawyer who practices in Vancouver. 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 – … Read More
Borderlines Podcast #31 – How Much Does Immigrating Matter on Which Officer or Judge You Get? with Sean Rehaag
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?
Borderlines Podcast #30 – Excluding Family Members from Immigrating vs. Compassion, with Jamie Chai Yun Liew
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). She can be found on Twitter @thechaiyun 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 … Read More
Intra-Company Transfers – Specialized Knowledge
On June 9, 2014, Immigration, Refugees and Citizenship Canada published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“). OB-575 introduced more stringent requirements to the Intra-Company Transferee – Specialized Knowledge program. Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage. Specialized Knowledge In order to qualify as an Intracompany Transeferee (“ICT“) – Specialized Knowledge applicantsmust demonstrate a high degree of both proprietary knowledge and advanced expertise. Specialized knowledge is unique and uncommon, and according to the Immigration, Refugees and Citizenship Canada (“IRCC“) website “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.” The onus is on applicants to provide evidence that they meet these requirements. Proprietary knowledge is company-specific expertise related to a company’s product or service. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although IRCC does not mandate that “advanced proprietary knowledge” is required, it states that: Advanced … Read More
Dance Instructors, Guest Speakers, and Working in Canada Without a Work Permit
Does a professional ballet teacher require a work permit and a Labour Market Impact Assessment to give a 4 day seminar in Vancouver? The answer is.. it depends. Section 186(j) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that: Work Without a Work Permit 186. A foreign national may work in Canada without a work permit (j) as a guest speaker for the sole purpose of making a speech or delivering a paper at a dinner, graduation, convention or similar function, or as a commercial speaker or seminar leader delivering a seminar that lasts no longer than five days; No Work Permit Required In accordance with IRPR 186(j), the Immigration, Refugees and Citizenship Canada (“IRCC“) website explicitly states that guest speakers for specific events, including as an academic speaker at a university or college function, and commercial speakers or seminar leaders, can enter Canada to work without a work permit provided the seminar to be given by the foreign speaker does not last longer than five days. IRCC defines a seminar as “a small class at a university, etc. for discussion and research, or a short intensive course of study, or a conference of specialists.” IRCC defines commercial speakers as “people who sell tickets or registrations … Read More
Volunteer Work and Immigrating to Canada
Canadian work experience that is volunteer does not typically count towards immigration. Regulation 73(2) of the Immigration and Refugee Protection Regulations states that for the purposes of this Division, work means an activity for which wages are paid or commission is earned. The Division includes the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Trades Class and the Provincial Nominee Class. The reason is that economic classes are designed to determine whether an applicant can become economically established.
Renouncing Permanent Resident Status
Prior to November 21, 2014, there was no formal way for permanent residents to voluntarily renounce their permanent resident status in Canada. Incredibly, permanent residents who wanted to voluntarily relinquish their status had to generally first be declared inadmissible to Canada by Immigration, Refugees and Citizenship Canada (“IRCC”). This changed in 2014, and the ability to formally relinquish permanent resident status will benefit numerous individuals. As the IRCC website states: In some cases, permanent residents know that they failed to meet the residency obligation and have no desire to remain in Canada as permanent residents, but they wish to visit Canada without being reported for non-compliance with respect to their residency requirements. In other cases, individuals may be required to provide proof that they have given up Canadian permanent resident status in order to obtain benefits from their country of origin or a third country, such as accepting a diplomatic posting, renewing civil documents (national identity cards, health or pension coverage, etc.) or entering military service.
Res Judicata
Res judicata is a legal principle which means “a matter already judged.” Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining whether res judicata applies, as follows: the same question has been decided earlier in the proceedings; the prior decision that is said to create the estoppen must have been final; and the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised. In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available. When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker. New evidence is relevant to the second step … Read More
Labour Market Impact Assessments – Recruitment Requirements
Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents. The Department of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available. In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives. I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained. Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada. The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.
Applications for Extension of Authorization to Remain in Canada as a Temporary Resident
Regulation 181(1) of the Immigration and Refugee Protection Regulations provides that a foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if: the application is made by the end of the period authorized for their stay; and they ahve complied with conditions imposed on their entry to Canada. Regulation 181(2) further states that an officer shall extend the foreign national’s authorization to remain in Canada as a temporary resident if it is established that the foreign national will leave Canada by the end of the period authorized for their stay, holds a passport and is not inadmissible to Canada. Factors There are many factors that immigration officers will consider in assessing whether to extend someone’s status in Canada. These include: What is the individual doing in Canada? How long has the individual been in Canada? How long is the extension request for? Do they have a valid job offer? If so, are they able to perform the work? What activities has the individual done during their time in Canada? Are they earning enough to support themselves? Can someone else provide adequate support? Does the individual have the means and ability to either … Read More