The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers. We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA. Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers. 3:00 – What are the first questions or things that Kyle and Meera tell Canadian employers that want to apply for Labour Market Impact Assessments? 3:57 – What is the difference between the Temporary Foreign Worker Program and the International Mobility Program? 8:00 – Why are companies generally reluctant to obtain Labour Market Impact Assessments? 8:20 – What are the recruitment requirements for a Labour Market Impact Assessment? 12:50 – What is Job Match? 19:00 – What do companies have to show and demonstrate through the recruitment process? 23:20 – What is the wage requirement for a LMIA? What is the prevailing wage? 25:00 – Do employers hire foreign workers to undercut Canadian wages? 26:30 – Can employers of foreign workers offer raises or … Read More
Borderlines Podcast #23 – Appellate Advocacy Tips, with Former Supreme Court of Canada Justice Marshall Rothstein
Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal. Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion. In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation. 9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience? 12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada? 14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at … Read More
Work Permits for Employers in the Sex Trade
Since July 4, 2012, Minister Instructions have been in place that prohibit temporary foreign workers in Canada from working in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation of some workers. The Ministerial Instructions define the business sectors where there are reasonable grounds to suspect a risk of sexual exploitation as being strip clubs, escort services and massage parlours. When receiving applications for work permits made by foreign nationals seeking to work in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation, officers will not process the applications. As well, all work permits advise temporary foreign workers of the restriction, as they typically state “not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services. Employment and Social Development Canada’s Temporary Foreign Worker Program WIKI provides the following additional guidance. Sex Industry: An employer that engages in striptease, erotic dance, escort services or erotic massage on a regular basis (eg. daily, weekly or monthly). Striptease and erotic dance: activities involving nudity. A business that engages in activities without nudity that may … Read More
Conservatives to End Stripper Visas
The media is reporting that once Bill C-38 passes, the Conservative government has indicated that it will stop issuing work visas to foreign strippers. One of the more insightful reports on the issue is from the Adult Video News’ Ann Oui, who wrote: “Together with other legislation passed this year, provisions under Bill C-38 will take it one step further—all existing temporary work visas to foreign-born strippers will be cancelled, all new applications will be denied and all ‘open’ work visa holders will be barred from working in the adult entertainment industry,” reported the Sun. In spite of the clamor by conservatives, while in power they reportedly granted 496 permits to foreign exotic dancers between 2006 and 2011, and renewed a relatively paltry 100. For Minister of Citizenship and Immigration Jason Kenney, who is blaming the opposition for blocking efforts to amend current law, the number is beside the point. “Now we have the power, which we’ll begin using as soon as those regulations are done this summer, to deny visas to people who we think … might have a high chance of trafficking or exploitation,” he said. That is quite an odd rationalization, however, considering the visas he wants to … Read More
Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention
Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“) states that the provisions of this 1951 Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. Section 98 of Canada’s Immigration and Refugee Protection Act (“IRPA” or the “Act“) incorporates Article 1F(b) of the 1951 Refugee Convention into Canadian immigration law. What is the Purpose of Article 1F(b)? Does Is it Restricted to Fugitives? If a Person is Rehabilitated Can They Still be Excluded from Refugee Protection? In Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“), the Supreme Court of Canada (the “Supreme Court“) addressed the issue of whether the application of Article 1F(b) of the 1951 Refugee Convention is simply a matter of looking at the seriousness of a crime when it was committed, or whether it requires consideration of other matters, including, for example, whether a refugee claimant is a fugitive and/or whether an individual is rehabilitated. The Supreme Court found that the purpose of Article 1F(b) … Read More
Judicial Review Success Rates on Refugee Matters based on the Judge
Sean Rehaag, an Associate Professor at Osgoode Hall Law School, has published a paper titled Judicial Review of Refugee Determinations (II): Revisiting the Luck of the Draw. Its Abstract states: This article updates an earlier empirical study of decision-making in the refugee law context in Canada’s Federal Court. The initial study found that outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw – on which judge decided the case. Since the initial study was released, the Federal Court has adopted measures to address variations in grant rates across judges. Drawing on data collected from over 33,000 online Federal Court dockets from 2008 to 2016, the article examines whether those measures have been successful and what further reforms should be pursued. Some of the charts contained within are fascinating, and show the following. 1) The number of applications for leave to commence judicial review in refugee matters has been steadily declining since 2012. 2) The % of leave applications being granted has increased from just under 20% from 2008-2012 to just under 30%. 3) The % of successful judicial review applications, not including those that settle, has increased from under 10% … Read More
Return of Incomplete LMIA Applications
The Department of Employment and Social Development Canada (“ESDC”) has very strict procedures for returning incomplete Labour Market Impact Assessment (“LMIA”) applications. All applications are reviewed for completeness. A “complete” application means that the employer has used the appropriate form and an acceptable version, and: filled out all fields in all the necessary forms; included all the documents that are requested; signed all the forms, where required; and provided the payment form for the processing fee (where applicable). If an application is missing information, an officer will determine if the missing element can be obtained quickly and call the employer to obtain the information. Applications that would have been eligible for priority processing but for the missing information are placed in regular processing, even if the information can be obtained quickly. If the application is missing information that is not easy to obtain, then the application will be deemed incomplete. Although ESDC officers will typically shred or delete an incomplete LMIA, officers will enter reasons for why the application was incomplete in the employer’s system file notes. The following information from the ESDC Wiki expands on what is written above.
Misrepresentation
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws. The general consequence of misrepresenting is a five-year ban from entering Canada. As well, s. 40(3) of the Immigration and Refugee Protection Act provides that a foreign national who is inadmissible to Canada for misrepresentation cannot apply for permanent residence during the five year bar. In Gill v. Canada (Citizenship and Immigration), 2020 FC 33 the Federal Court ruled that applications submitted during the bar are a “nullity” and as such refusals cannot be appealled to the Immigration Appeal Division. Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him … Read More
The Passenger Protect Program
On June 18, 2015 the Secure Air Travel Act received Royal Assent. It enhanced the Passenger Protect Program, more commonly called the “no-fly list.” The previous Conservative Government of Canada strengthened the Passenger Protect Program in response to an increase in the number of individuals travelling from Canada to participate in foreign conflicts, and in particular joining ISIS. The Passenger Protect Program is an air passenger security program. Through it the government works with air carriers to screen commercial passenger flights to, from and within Canada, and uses measures to mitigate the threat if a listed individual attempts to board an aircraft. The specific categories of individuals who can be impacted include (a) those who are suspected of posing a threat to transportation and (b) those who are attempting to travel abroad by air to support terrorism-related activities. Individuals who are subject to a denial of boarding, also known as those on the Specified Persons List, can make an application to the Minister of Public Safety and Emergency Preparedness to be removed. The government does not publish the Specified Persons List, nor does it say how many people are on the list.
Religious Exemption to IRCC Photo Requirements
From requiring that foreign nationals have their photos taken as part of the biometrics process to visa applicants needing to provide headshots in their applications, many Canadian immigration programs have a photo requirement. There is no exemption from the photograph for religious reasons. Below is a memo that was prepared for the Minister of Citizenship and Immigration Canada in 2013 confirming that there are no exemptions to the photograph requirements in response to a request for an exemption from the Amish community.