Marina L. Sedai, Barrister & Solicitor

T. 604.642.0842; F. 604.909.4859

msedai@immigrationcitizenshiplaw.com

A growing portion of the Canadian workforce is not Canadian (i.e., citizens or permanent residents); rather, it is foreign nationals.  In 1988, approximately 100,000 foreign workers entered Canada.  In 2008, nearly 200,000 entered.[1] Although the economic downturn appears to have decreased the number of foreign workers in Canada, it remains high especially with the gradual recovery in Western Canada.

Employers in British Columbia do need to comply with labour law and workplace safety standards when employing foreign workers.  They must also comply with immigration law that has been undergoing considerable changes.  This paper will identify employers’ immigration compliance considerations by examining the stages of employment relationship with foreign workers, including hiring, changing conditions, extending employment temporarily or permanently, and ending the relationship.

Temporary employment – which often is necessary to permanently employ someone – requires the following documentation:

A Labour Market Opinion (“LMO”), which is the employer’s permission to hire a foreign worker.  The employer applies to the Service Canada office within its province.[2] Essentially, an LMO is confirmation that hiring a foreign national will have a positive effect on the Canadian labour market.

A work permit authorizes the employee to perform work in Canada per conditions listed.   A few exceptions exist wherein the foreign national is issued a visitor record as a business visitor.  Canada Border Services Agency (“CBSA”) issues the work permit or visitor record at a Port of Entry; Citizenship and Immigration Canada issues these documents from inside of Canada.   An LMO is normally required to obtain a work permit, although some work permits and business visitor records are LMO-exempt.

A Temporary Resident Visa (“TRV”) authorizes the foreign national from a visa-required country to travel to Canada.   Typically, the political, social, and economic conditions of visa-required countries are most dissimilar to Canada; and those of visa-exempt countries are most similar.  For example, a national from a Asian, African, Latin American, and Eastern European country is likely to need a TRV from a visa office outside of Canada, and would get a work permit from a CBSA officer when she arrives at the airport, whereas an American would never possess a TRV, and would obtain a work permit or business visitor record upon entry to Canada.

REGULATORY COMPLIANCE CHANGES

Service Canada’s first priority is to assist Canadians in finding employment, not to bring in foreign workers.  Its second priority is to ensure foreign workers are treated fairly.  Toward that end, stricter compliance requirements are now in effect with the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”) amendments.  On 2011 April 01, employers will be subject to the weightier punishments for non-compliance in the previous two years, starting 2010 October 01.

The government will closely examine an employer’s past and future compliance upon submission of an LMO application, or the employee’s submission of an LMO-exempt work permit application.

The employer needs to have complied with provincial and federal laws relating to previous employment of foreign nationals, and its current request must be in keeping with the nature and needs of its business and have no barriers to fulfilling its obligations in the job offer and LMO.

If the employer has not complied, or cannot provide adequate non-compliance justification listed in the regulations, then the application will be refused and the business name and address blacklisted on the CIC website with a prohibition on employing further foreign workers for two years.

RECRUIT CANADIANS FIRST

Service Canada requires an employer to prove, inter alia, it cannot find a Canadian[3] to do the job.  Conventional advertising is almost certain to be non-compliant.   Service Canada provides minimum advertising requirements, which vary with the skill level of the position[4].

To place a compliant advertisement, an employer needs to first determine the National Occupational Classification code (“NOC”) and title for a position[5], and then determine which of the five skill levels that applies to that NOC.[6] The first three are skilled:  zero (“0”) is management; “A” is typically professions requiring a university or professional degree, “B” is typically skilled trades.  The last two are low-skilled:  “C” is typically jobs requiring high school, short term courses, and/or on-the-job training, and “D” is typically jobs not requiring completed high school and offering just on-the-job training.

Gem:  ensure that the job duties clearly fit within the NOC category that put forward, and cannot be characterised as fitting into a related category that has a higher wage or for which the potential employee is not qualified.

If the employer selects a low skilled NOC, it may be more difficult to convince a Service Canada officer that it cannot find a Canadian to do the job.  Further, the LMO application requires several additional elements when hiring a low-skilled worker, including but not limited to, a contract providing additional protections and benefits for the worker (e.g., international transportation, bridge medical insurance, assistance with accommodations).

Gem:  determine the skilled NOC category closely related to the low skilled NOC category, and whether that would fulfil business needs.  For example, instead of a NOC 9494 furniture finisher (skill level C), an employer may meet needs with a NOC 9224 furniture finisher supervisor (skill level B).

Gem:  the employer must pay for all recruitment costs. It is illegal to charge an employee for a job.  An employee may pay for other costs such as movers, legal fees, ESL classes, immigration medicals; however, if the business truly requires and will profit from a foreign worker, it may be in its best interest to accept this as a cost of doing business.[7]

Service Canada requires advertising for all skill levels to

a)    be for at least 14 days

b)    list company operating name

c)    list business address

d)    list duties and qualifications

e)    list wage range (include prevailing wage) and reference to benefits

Service Canada encourages advertising for all skill levels to

a)    be ongoing

b)    also target communities with employment barriers.

Service Canada requires ad sources as follows by skill level:

NOC 0 and A (Professionals and Managers)

14 days within the three months before applying for an LMO

a)    government’s Internet job site www.jobbank.gc.ca; OR

b)    in a source that makes sense for the industry (e.g., Internet job sites, journals, newspapers, unions, professional associations).

NOC B (Skilled Trades)

14 days within the three months before applying for an LMO

c)    government’s Internet job site www.jobbank.gc.ca; AND

d)    in a source that makes sense for the industry (e.g., Internet job sites, journals, newspapers, unions, professional associations).

NOC C and D (Low Skilled)

a)    government’s Internet job site www.jobbank.gc.ca; AND

b)    in one or more sources that makes sense for the industry (e.g., Internet job sites, journals, newspapers, ethnic newspapers, unions, local stores, community resource centres, churches, or local regional employment centres, community resource centres or ethnic sites.

A few positions are also subject to variations on the minimums.[8]

Gem: Exceed minimum advertising requirements by advertising in several above-named sources and for a longer duration.

Gem: If the employer has performed advertising that does not meet the Service Canada requirements, add this to the advertising that does meet the requirements, as evidence of on-going recruitment efforts.

The employer must honestly assess applicants, even if it is strongly motivated to hire a particular foreign national.  If a qualified Canadian permanent resident or citizen applies, it should hire that person.  Its purpose is to address its business needs.  Assisting the foreign national to get a job or immigrate to Canada is not the purpose; rather, it is only a subsequent benefit.  The employer should record reasons for rejecting each applicant on paper or after interviewing.

Gem: If the employer can hire unqualified Canadians for other positions, it should seriously consider doing so, as this bolsters credibility.

LMO PROCESS

Service Canada’s LMO processing times can vary from one week to several months; however, for most of 2010 it has been roughly three weeks in British Columbia, and in late summer was five weeks.  The overall time budget is therefore currently about six to eight weeks, depending how quickly the employer get through preparation, advertising, interviewing, and processing.

Employers often experience confusion with the LMO application form, most commonly the following questions, which warrant additional guidance:

Q21.  Layoffs in last 12 months can be fatal to the application. Before extending the job offer to the foreign national, the employer should be certain that all person laid off in the preceding 12 months in the position in which it is hiring are unavailable or rehired and it has an exceptionally compelling reason for now hiring a foreign national in that position.

Q34 & 61. Job Title and NOC must be precise and reflect the advertisement.  The LMO and work permit will be for this precise position only.

Gem:  If the employer selects a low skilled NOC, the burden will be on it to convince an officer that no Canadian can do this work, especially with the economy in modest recovery.  Further, if it were successful, the foreign national employee may have few or no options for staying in Canada long term, and it will need to hire and train a new person for a long term position.

Q39. Location of job should be where the work will be performed.  Do not put the administrative office here if the employee will be working, for example, at the warehouse or at various client sites.

Q41. Main duties of job should not be a cut and paste of the NOC description, but should reflect the essential definition of the work and a substantial number of the duties.

Q43.  Experience/skills should be the minimum required to do the job.  Service Canada has been challenging employers on this.  For example, Service Canada may view an employer as not complying with the LMO requirements if the employer has requested five years experience when there are Canadians with two years of experience who may be able to perform the work.

Q45.  Salary needs to be, at a minimum, the prevailing wage.  This is normally the average salary even if the employee has less than average experience.[9]

Gem:  Service Canada will not consider gratuities or performance-related pay (piece rate pay) even if it is the industry standard.

Number of hours must be at least 30 per week, which is full time for the purposes of an LMO.

Gem: Thirty hours per week is not full time for immigration purposes; rather, IRPR defines full time as at least 37.5 hours per week.  This may have consequences for the employee’s permanent residence application.

Q45.  Benefits must comply with the Employment Standards Acts at a minimum.

Q51. Recruitment efforts must be included with the application.  Advertisements that do not comply with Service Canada’s minimum requirements are extremely unlikely to be accepted although they can be used as evidence of on-going recruitment.

Q53 Training plans describing the transfer of skills to Canadians should be included with the application.

Q48 Licensing requirements should be determined and foreign national’s qualification obtained before the job is offered.

Gem: A foreign worker, who normally needs to be licensed, may be employable in a related NOC category that does not require licensing but can still accurately describe the position, and may require supervision of a licensed party.

Q49 & 50 Union support is crucial.  If the union opposes hiring of a foreign worker, Service Canada is unlikely to issue a positive LMO.

CHANGING THE JOB DESCRIPTION

Employers will face varying challenges with immigration law compliance in their attempts to change the foreign national’s duties or moving that person into a different position altogether

1.    a new NOC description requires a new LMO; and,

2.    the employee will require a change of conditions to the work permit before Restrictions on Foreign Workers.

EXTENDING TEMPORARY EMPLOYMENT

LMO extensions no longer exist.  The employer will need to apply for a new LMO.

Gem: Service Canada frequently changes its policies.  With each new LMO, the employer must revisit the website to determine if any requirements have been adjusted.  It should also do this after advertising and recruitment is complete and it is about to submit the new LMO application, as the requirements may have changed during that time.  Do not expect a grace period.

If the employee’s work permit will expire before the new LMO processing and work permit extension processing is complete, the employer may be able to benefit from implied status.  Implied status currently exists where the employer submits the work permit extension application to the Case Processing Centre in Vegreville, Alberta, (“CPC-V”) before the work permit expiry date, with evidence that the LMO application was already submitted to Service Canada.  CPC-V will await the LMO decision before processing the application.  Beware:  the employee’s exit from Canada will extinguish implied status.

If the employee’s work permit has expired and implied status does not apply, then the employer cannot employ that person until the new work permit is obtained from 1) inside of Canada in the case of a restoration of status within 90 days of the expiry, or 2) outside of Canada at a visa office, or port of entry, depending on the employee’s place of application eligibility.

With the new regulations, there is a four year cap on most work permits.  Additionally, obtaining work permits for longer than one year is exceedingly difficult for most occupations at this time, forcing the employer to get new LMOs and the employee to extend temporary status each year.  If the employee were to obtain permanent residence status, then the employer need to comply with immigration laws ends albeit the need to comply with employment and work safety laws continues.

THE PERMANENT OFFER

Most commonly, foreign workers are eligible to apply for permanent residence in the following classes:  Federal Skilled Worker (“FSW”), Family Class (“FC”), Canadian Experience Class (“CEC”), or Provincial Nominee Program (business or skilled worker) (“BC PNP”).  The employer has a role in these applications.

The FSW class has changed considerably.[10] It is now a two step eligibility analysis:

1) does the applicant meet or exceed the minimum 67 points (awarded for education, experience, age, language skills, arranged employment, and adaptability), AND

2a) does the applicant have the required experience in a list of desired occupations.[11] OR  2b) does the applicant have arranged employment.

The employer provides arranged employment in one of the two following ways:

1) for a work permit holder who is already working for it, the employer provides an indeterminate job offer, OR

2) for a foreign national who is not yet working for it, the employer obtains from Service Canada an Arranged Employment Opinion (“AEO”).  LMO and AEO requirements are quite different.  An AEO requires a genuine, full-time, permanent offer to hire the individual once permanent residence status is obtained.  Prevailing wage and working conditions must be met.  The employer does not need to advertise or otherwise show that it cannot find a Canadian to do the job.

Arranged employment provides 10 to 15 points on the FSW, as well as category eligibility.

The BC PNP selects workers who have a BC job offer and meet the province’s labour needs.[12] The employer needs to formally extend a permanent offer to the foreign worker.  At the time of nomination, the foreign national may receive a work permit support letter, which dispenses with the need for an LMO.

The CEC worker stream requires two years of full time skilled worker experience in Canada in the last three years.[13]

If already employing the applicant, the employer will provide an experience letter for the FSW, BC PNP, or CEC application.

Gem: Ensure that the experience letter reflects a NOC definition and a substantial number of the duties.  Do not cut and paste the duties as that will be taken as a self-serving statement.  The employer may wish to additionally state that it has read the NOC category and agree that it describes the position held by the employee.

ENDING THE EMPLOYMENT RELATIONSHIP

If the relationship with the temporary foreign worker who has no permanent residence application in process ends, it will not change Service Canada and the CIC’s ability to examine past compliance when the employer seeks to hire the next foreign national.  There is no requirement to report to the Canadian government that the relationship has ended; however, the employer should discuss with a lawyer the particulars of the case to determine whether it may have reasons for doing so.

If the relationship with the temporary foreign worker ends while that person’s FSW with arranged employment or PNP application is in process, then the basis of the application no longer exists.  The FSW application will not be approved.  The PNP will consider whether to continue supporting the applicant’s permanent residence application on a case-by-case basis.  The employer should notify Service Canada or the PNP with an explanation, in part to preserve its reputation with those decision makers.  If it does not, and the foreign worker does not notify them, then it may be party to a misrepresentation and thus not compliant.

CONCLUSION

Obtaining authorization to hire a temporary foreign worker for a Canadian business is not an easy task, particularly considering the current economic downturn.  Refusals are common.  Therefore, it is crucial to exercise great attention to detail so as to precisely comply with the unique Service Canada requirements.   Be prepared to present a sound argument that the business needs someone in this position, it cannot find a Canadian to do the job, and the intended foreign worker is qualified.

Beware – a Service Canada officer will telephone the employer’s contact person, who should expect to defend the need for a worker in this position and the inability to find a Canadian.  In short, the contact person must know the paper application perfectly.

The employer may wish to explore the potential employee’s options for permanent residence before extending the offer and entering a temporary employment relationship.  It will likely have a role in that application, which will have related compliance requirements.

Even if the employer has an experienced human resources department that has educated itself with the available legal information, it and the employee are strongly advised to consult with an immigration lawyer for individualized legal advice.  As a final “gem”, the employer should request an opinion letter that will go on the employee’s file and to which all parties can refer as the employment relationship develops.  Bear in mind that immigration compliance requirements are continually changing and it is necessary to check back with the lawyer before the employer or the employee submit a subsequent application to ensure the legal advice continues to be current.

© 2010 Marina Lee Sedai.  All rights reserved.  This article protected by Canadian and international copyright laws.  Quoting or paraphrasing this article requires complete citation. Permission granted to Lorman Education Services and The Canadian Expat Association (www.thecanadianexpat.com) to wholly reproduce this article.

[2] Service Canada administers the Human Resources and Skills Development Canada program).

[3] Canadian defined in this context as citizens and permanent residents.

[4] http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/lmodir/lmodir-14.shtml#14

[5] http://www5.hrsdc.gc.ca/NOC/English/NOC/2006/SearchKeyword.aspx

[6] http://www5.hrsdc.gc.ca/NOC/English/NOC/2006/Matrix.aspx

[7] http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/lowskill.shtml and

http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/lsasse.shtml

[8] http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/lmodir/variation.shtml

[9] www.labourmarketinformation.ca

[10] http://www.cic.gc.ca/english/immigrate/skilled/index.asp

[11] http://www.cic.gc.ca/english/immigrate/skilled/apply-who-instructions.asp

[12] http://www.welcomebc.ca/wbc/immigration/come/work/about/index.page

[13] http://www.cic.gc.ca/english/information/applications/cec.asp

SERIES:  BRINGING HOME YOUR LIFE

Part III:  Labour Market Opinions – Permission to

Hire Foreign Workers for Your Canadian Business

This article is Part III of the Series, “Bringing Home Your Life”.  Parts I and II addressed bringing foreign national family members to Canada.  Part III now turns to obtaining authorization from Service Canada to hire foreign nationals for your Canadian business. This article is Part II of the Series, “Bringing Home Your Life”.  Part I, “Sponsoring Your Spouse and Children” was published in the 2010 February edition of The Canadian Expat Association online magazine http://bit.ly/a9cGS1.

As a Canadian expat, you may either have or be planning a Canadian business, but discover that the current Canadian labour market cannot offer you employees with the training and skills your business needs to be a success and grow.  This is particularly true if your business relies on your employees understanding unique international goods and services, specific language skills, or target market culture and connections.

LABOUR MARKET OPINION (“LMO”)

The general rule is that you must get authorization to hire a foreign worker by obtaining a positive LMO from Service Canada (which administers the Human Resources and Skills Development Canada program).  A positive LMO confirms that hiring a foreign worker will have no negative effect on the Canadian labour market.  LMO exemptions exist for some occupations and will be addressed in a subsequent article in this series Bringing Home Your Life.

The Decision-Maker’s Mindset

Service Canada’s first priority is to assist Canadians in finding employment, not to bring in foreign workers.  Its second priority is ensuring foreign workers are treated fairly.  Therefore, Service Canada expects you to prove that you cannot find a Canadian citizen or permanent resident to fill the position and to commit to the prevailing wages, hours, and working conditions for the foreign worker.

LMO Steps and Timeline

There are several steps to obtain an LMO: 1) identify the National Occupational Classification (“NOC”)  for the position, 2) advertise according to Service Canada’s instructions, 3) record your evaluation of applications and interviews, 4) enter an employment contract, 5) submit prepared forms and evidence, and 6) confirm particulars in the Service Canada verification call to you.  If the officer finds any deficiencies, you may have to repeat all or some of these steps.

Service Canada’s LMO processing times can vary from one week to several months; however, as of January 2010, is roughly three weeks.  Your overall time budget is therefore currently about 6-8 weeks, depending how quickly you get through all the above steps.

NOC Identification. There are five NOC skill levels.  The first three are skilled occupations:  zero (“0”) is management; “A” is typically professions requiring a university or professional degree, “B” is typically skilled trades.  There are two low-skilled levels:  “C” is typically jobs requiring high school, short term courses, and/or on-the-job training, and “D” is typically jobs not requiring completed high school and offering just on-the-job training.

Beware:  ensure that the job duties clearly fit within the NOC category that you put forward, and cannot be characterised as fitting into a related category that has a higher wage or for which your potential employee is not qualified.

Beware:  if you select a low skilled NOC, it may be more difficult to prove you cannot find a Canadian to do the job.

Beware:  if you select a low skilled NOC, your foreign national employee may have few or no options for staying in Canada long term.

Advertising.   You must advertise for at least 14 days on one or more sources, depending on the skill level.  For most jobs, advertising on the JobBank or provincial equivalent is necessary.  The second source must make sense for the industry.  Advertising, like all  requirements, can change at any time.

Beware:  you must identify the business name and address, the wage, and reference benefits or your advertising will be found inadequate.

Beware: you must offer a wage that that is attractive to Canadians.  Service Canada will not accept the employer’s opinion or anecdotal evidence of an appropriate wage; rather, it expects you to pay the average or higher wage, usually according to its statistics, for even less experienced workers.   Very few occupations have wage exceptions.

Honestly Assess Applicants. Record your reasons for rejecting an applicant on paper or after interviewing.  If you can hire unqualified applicants for other positions, seriously consider doing so.

Beware:  if a qualified Canadian permanent resident or citizen applies, you should hire that person.  Your purpose is to address your business needs.  Assisting the foreign national to get a job or immigrate to Canada is not your purpose; rather, it is only a subsequent benefit.

Employment Contract. You should consider having an employment lawyer review your draft contract, or create one for you, to ensure you are protected to the full extent under relevant legislation and case law.  The immigration lawyer assisting with the LMO application will also need to analyse the employment contract from an immigration law perspective.  A sound contract can spare great expense and stress if the employment relationship were to fail.

Prepare and Submit the LMO Application. You must indicate if you intend to have the foreign worker 1) transfer skills and knowledge to Canadians, 2) fill a labour shortage, or 3) directly create or retain job opportunities for other Canadians.

Beware: provide a description of training programs and job retention or creation for Canadians.

Beware: ensure any union is in agreement with you hiring a foreign worker.

Beware: licensing requirements – the foreign worker may either need to be licensed, or you may need to find a related NOC category that does not require licensing but can still accurately describe the position.

Beware: a Service Canada officer will telephone you.  Expect to defend your need for a worker in this position and your inability to find a Canadian.  In short, know your paper application perfectly.

Beware: your LMO application requires several additional elements if you are hiring a low- skilled worker, including but not limited to, a contract providing additional protections and benefits for the worker.

Beware:  you must pay for all recruitment costs. It is illegal to charge an employee for job.  An employee may pay for other costs such as movers, legal fees, ESL classes, immigration medicals; however, if your business truly needs and will profit from a foreign worker, it may be in your best interest to accept this as a cost of doing business, or at least share such costs.

CONCLUSION

Obtaining authorization to hire a foreign worker for your Canadian business is not an easy task, particularly considering the current economic downturn.  Refusals are common.  Service Canada officers commonly determine that you have not identified the correct NOC, adequately advertise, offer the prevailing wage, or met the addition requirements for hiring a low-skilled worker.

Therefore, it is crucial to allow adequate time for application preparation, processing, and possibly remedial application, as well as exercise great attention to detail so as to precisely comply with the unique Service Canada requirement.   Be prepared to present a sound argument that your business needs someone in this position, you cannot find a Canadian to do the job, and the intended foreign worker is qualified.

Note that the foregoing is a general overview only.  You should discuss your specific business needs vis-à-vis Service Canada’s ever-changing requirements with an immigration lawyer.

You are welcomed to ask questions here, and I will be pleased to provide general information.  You are also welcomed to contact me directly with personal information for case-specific advice.  When you do so, I will instruct you as to the documents and information required to ensure we comply with the British Columbia Law Society Rules that require me to identify clients and develop a clear solicitor-client relationship.

I look forward to your questions!

© 2010 Marina Lee Sedai.   All rights reserved.   This article protected by Canadian and international copyright laws.  Quoting or paraphrasing this article requires complete citation. Permission originally granted to The Canadian Expat Association (www.thecanadianexpat.com) to wholly reproduce this article, and to the Canadian Chamber of Commerce of the Philippines publication Canada Links with citation to original source.

Part II:  Sponsoring Extended Family Members

“Your connection to Canada never extinguishes.  Your Canadian family, community, and business ties give you reasons to be in Canada part time or full time for month, years, or the rest of your life.  And if it does not do so now, you know the possibility always exists.  But the transition back is complicated.  Your life is intricately woven with the lives of many foreign nationals.”  This article is Part II of the Series, “Bringing Home Your Life”.  Part I, “Sponsoring Your Spouse and Children” was published in the 04 March 2009 edition of The Canadian Expat Association online magazine.

FAMILY CLASS MEMBERS

Not all relatives can be sponsored.  Many Canadians and foreign nationals know from public and private sources that relatives, such as fiancés and siblings, have been sponsored in the past; however, they are surprised to learn that the Family Class was redefined in the 2001 Immigration and Refugee Protection Act (“IRPA”) and subsequent Citizenship and Immigration Canada (“CIC”) policy.  IRPA also permitted the federal government to enter agreements with provinces, permitting participating provinces to nominate potential immigrants that IRPA and CIC policy excludes or delays.

Under IRPA, “Canadian” is defined to include Canadian citizens and permanent residents.  This may mean that Canadian expats can participate in the sponsorship of their in-laws, provided the Canadian expat spouse has become a permanent resident.

Parents and Grandparents

IRPA permits Canadians to sponsor parents and grandparents; however, the CIC’s efforts to balance its mandate against resource constraints have resulted prioritizing that has spouses and children processed first, and parents and grandparents processed last.

The resulting slow processing times can have a grave effect.  Between the time that you submit your sponsorship application to the CIC for your parents, and the time a decision is reached on their subsequent permanent residence application, one of them may suffer declining health that could rendered both of them (and their dependents, if any), inadmissible to Canada.

Siblings

IRPA does not allow you to directly sponsor siblings, except in exceptional circumstances as set out below wherein they are orphaned or you have no other relatives.

However, you can indirectly sponsor siblings insofar as they can be included as dependents on your parent’s sponsored permanent residence application.   Your siblings will need to meet the definition of a dependent child on the day the CIC received your completed “IMM1344A Application to Sponsor and Undertaking” form and correct processing fees.  A dependent child is defined as:

• less than 22 years old and single (and continues to be single until obtaining permanent residence); or,
• substantially dependent on a parent’s financial support since before the age of 22 because they are a student (marital status irrelevant) or disabled (and continues to be a student or disabled until obtaining permanent residence).

Orphaned Family Member

You can sponsor an orphaned relatives who is less than 18 years old, single, and your legal sibling, nephew or niece, or grandchild.  Consents must be obtained from most countries of origin and legal guardians.  The process is similar to that of sponsoring an adopted child, which is beyond the scope of this article.

Lonely Canadian Provision

If you are alone in Canada, without a spouse or partner, child, parent, sibling, nephew/niece, grandparent, aunt or uncle who is already a Canadian, or who you could sponsor, then you can sponsor another relative.

Humanitarian & Compassionate Considerations

It is possible to request that the CIC grant permanent residence to an applicant who does not meet the requirements of IRPA, by assessing the humanitarian and compassionate considerations and the best interests of the child, if applicable.  How the applicant is related to you may lend to these considerations, but does not in itself determine whether permanent residence will be granted.

The applicant applies using the forms for an existing class (e.g., family) and adds a request for humanitarian and compassionate considerations, along with supporting evidence.  These cases require a close examination of potential effects of an approval or denial of permanent residence on the foreign national applicant and dependents, as well as Canadian relatives and society.

Timeline

CIC’s most recent sponsorship application processing time is 30 months.

Provincial Nominee Program & Quebec Selection

Manitoba, Saskatchewan, and Alberta have broad sponsorship programs in which they can nominate a foreign national to the federal government, which processes the permanent resident application.

Manitoba:

Ages:                     21-49

Relationship:      child, sibling, parent, grandparent, aunt/uncle, niece/nephew, or cousin.

Saskatchewan:

Ages:                     18-49

Relationship:      child, sibling, parent, grandparent, grandchild, aunt/uncle, niece/nephew, cousin, step-family or in-laws of same relationship.

Alberta

Ages:                     21-45

Relationship:      child, sibling, parent, aunt/uncle, or niece/nephew.

There are a few catches, though.

First, the foreign national does not qualify just on the basis of the relationship.  To ensure each province’s program requirements are met, all parties should study the program carefully and preferably consult with a lawyer.

Second, among other qualifications, the sponsor must be a resident for one year in Manitoba or Saskatchewan, or two years in Alberta.

Third, the foreign national must formally declare an intention to live and work in the province.

Under the Canada-Quebec Immigration Accord, Quebec selects its own immigrants.  Sponsored family members must obtain a Quebec Selection Certificate (“CSQ”) from the Quebec Ministère des Relations avec les Citoyens et de l’Immigration (“MRCI”).

Timeline

Provincial processing times fluctuate considerably, but most recently, nominee application have been taking – very roughly – 14 months in Manitoba or Saskatchewan, and 19 months in Alberta.

FEDERAL SPONSOR REQUIREMENTS

Established in Canada. Whether you are a Canadian citizen or permanent resident, you must re-establish yourself in Canada before sponsoring.  No exceptions exist for sponsors of extended family members, unlike the exception for Canadian citizens sponsoring spouses or children discussed in Part I of this series.

Qualifying Income. You must meet the annual minimum necessary income, as posted on the CIC website at http://www.cic.gc.ca/english/information/applications/guides/5196E10.asp:

1 (you):                $21,666

2:            $26,972

3:            $33,159

4:            $40,259

5:            $45,662

6:            $51,498

You must provide a Notice of Assessment to prove your Canadian income for the most recent taxation year.  If it is inadequate, then you can calculate your Canadian income on the 12 months preceding the sponsorship application date.

You must continue to qualify until your sponsored relatives have become permanent residents.

Your spouse or common-law partner may co-sign the sponsorship and undertaking.  No one else may co-sign.

Undertaking.  As the sponsor of an extended family member, you undertake to provide for the basic requirements of your relative as follows:

-          dependent child under age 22 at time permanent residence is granted:  until age 25 or 10 years have passed, whichever comes first.

-          dependent child age 22 or older at time permanent residence is granted:  3 years.

-          all others who are not a spouse or child:  10 years.

If the sponsored person were to receive social assistance during the sponsorship period, you must repay the provincial government, which will pursue the debt.

SPONSOR PROHIBITIONS

These prohibitions are the same regardless of the relative you sponsor, and are as per Part I in this series:

-          Undischarged bankrupt.

-          Default in court ordered payment or payment to government.

-          Default in undertaking (i.e., your sponsored relative receives social assistance).

-          Sexual or violent offence.

PROVINCIAL SPONSOR FINANCIAL REQUIREMENTS

Manitoba and Saskatchewan requires the Canadian relative to ensuring settlement funds of $10,000 for the principal permanent residence applicant and $2,000 for each dependent.

Alberta uses a more typical sponsorship model, insofar as the Canadian relative must demonstrate 12 months of income or $15,000 is available funds, and commit to a two year undertaking (i.e., financial responsibility for the immigrant’s basic needs).

INADMISSIBILITIES

As per Part I of this series, one may have a perfect permanent residence application, yet still be found inadmissible on the grounds of health, criminality, misrepresentation, organised crime, security, crimes against humanity.

The three most common grounds of inadmissibility for sponsored family members are medical, criminal, and misrepresentation.  Misrepresentation is often in conjunction with other grounds of inadmissibility because the applicant has failed to disclose important information, usually relating to health or criminal history.

Medical inadmissible is a great concern for parents and grandparents, whose ailments would be likely to put excessive demand on the Canadian health care system by costing roughly $25,000 over a five year period.  The figure is based on per capita health and social services costs that are re-evaluated each year.

Inadmissibility due to misrepresentation not only results from a purposeful lie.  When filling out personal and address histories, for example, an applicant frustrated with an inability to recall dates, places, and activities may be tempted to put down convenient answers or estimates.  One is strongly advised to ensure precision, and if that is impossible, candidly explain the failure of memory in the application.

Timeline:  The CIC has been processing parent or grandparent permanent residence applications in roughly 1-2 years, and “other” family class members in 3-19 months.  The posted visa office processing times are historical, and subject to change: http://www.cic.gc.ca/english/information/times/international/menu-perm.asp

CONCLUSION

Bringing extended family to Canada typically takes one to five years.  Therefore, it is crucial to 1) act quickly, so as to avoid the unexpected development of medical or other inadmissibilities; and, 2) take extreme care to submit perfected applications, later supplemented with any changed information, to avoid processing delays.

You are welcomed to ask questions here, and I will be pleased to provide general information.  You are also welcomed to contact me directly for case-specific advice.  When you do so, I will instruct you as to the documents and information required to ensure we comply with the British Columbia Law Society Rules that require me to identify clients and develop a clear solicitor-client relationship.  I look forward to your questions.

© 2009 Marina Lee Sedai.   All rights reserved.   This article protected by Canadian and international copyright laws.  Quoting or paraphrasing this article requires complete citation. Permission granted toThe Canadian Expat Association (www.thecanadianexpat.com) to wholly reproduce this article.

SERIES: BRINGING YOUR LIFE HOME

Part 1: Sponsoring Your Spouse and Children

First published in the Canadian Expat online magazine on March 04, 2009.

Your connection to Canada never extinguishes.  Your Canadian family, community, and business ties give you reasons to be in Canada part time or full time for months, years, or the rest of your life.  And if it does not do so now, you know the possibility always exists.

But the transition back is complicated.  Your life is intricately woven with the lives of many foreign nationals:  your spouse, your adopted, step, or grandchildren, your in-laws, your closest friends, and your key domestic and business personnel.

This article is the first in a series that will review the general requirements and some common problems encountered when you bring your life home.   We will begin with that which is most precious to you:  your children and your spouse or partner.

A key objective of Canadian immigration is to see that families are reunited in Canada.  Citizenship and Immigration Canada (”CIC”) policy has further defined that objective by making spouses and children processing priorities; therefore, even if your spouse were to qualify  for independent immigration, it is likely that sponsoring him or her will be simpler and faster, unless you are subject to a sponsorship prohibition.  The following are some of the prohibitions and requirements that may be of particular relevance to Canadian expats.

Sponsor

Re-establishment. Canadian immigration law requires that a sponsor resides in Canada; however, it also provides an exception for you as a Canadian Expat if you are a citizen (not a permanent resident) and you sponsor a spouse or child.  You must show re-establishment plans that satisfactorily indicate that you will reside in Canada when your spouse or child becomes a permanent resident.  Indicating this and not following through could leave you vulnerable to the CIC accusation of a misrepresentation.  The dire consequences of even an unintended misrepresentation are beyond the scope of this article, but it will suffice to say that in immigration law, there is no greater sin.

Income.  As the sponsor of a spouse or child, you do not need to meet the minimum necessary income although you do need to show that you have a means by which to survive, and you will still undertake to provide for the basic requirements of your spouse for three years and for your children for three to ten years, depending on their ages.  This means that if they were to receive social assistance during the sponsorship period, you must pay back the provincial government, which you can expect will pursue the debt.

Undischarged bankrupt. As soon as you have a discharge certificate from your trustee, you can proceed with a sponsorship application.

Payment Defaults. If you are in default of any court ordered payment (e.g., child support) or in repayment of any debt to the government, the CIC will not accept you as a sponsor.

Previous Sponsorship. If you were sponsored to come to Canada, or you have submitted a sponsorship application in the past, then your application to sponsor, as well as your spouse’s permanent resident application, will be examined closely to ensure you met your obligations and for relationship bona fides.  There is certainly no prohibition on genuine serial sponsorships; however, you should discuss potential delays or refusals with legal counsel.

Sexual or Violent Offence. You must have been pardoned or wait for five years after the completion of all aspects of your sentence (including probation) if you have ever been convicted of a sexual offence against anyone or a violent offence against a family member.

Timeline. A sponsorship application is usually processed in 4-8 weeks.

SPONSORED SPOUSE OR PARTNER

Meet the Definition. The first requirement is to ensure that you and your spouse meet the definition of married or common-law.

In most cases, as long as your marriage is legal in the place where it was performed, that jurisdiction’s marriage certificate will suffice.  You do not need to register or remarry in Canada.  However, your application will be refused if your spouse is less than 16 years of age or too closely related to you.  Same-sex spouses married outside of Canada will be processed as common-law partners.

For immigration purposes, “common-law” is defined by quantity and quality, requiring one year of continuous cohabitation in a married-like relationship.   If you and your partner travel to see each other, you may not qualify, unless you first established one year.

If it is impossible for you to marry or live common-law due to penal controls or an immigration impediment, then you could apply as conjugal partners.  You will still need to show an integration of your lives that is beyond boyfriend or girlfriend and at least one year in duration.  The CIC typically does not entertain claims that extreme inconvenience is a barrier (e.g., “our jobs are in different countries”); rather, it is likely to place the responsibility of choice on you.

Canada no longer has a fiancé class, and fiancés will not typically meet the conjugal partner definition.

Genuineness. The second requirement is that your marriage is not a marriage of convenience, entered into primarily for the purpose of immigration.  Similarly, common-law partners cannot be roommates facilitating immigration.  Rather, the relationship must be genuine from the perspective of both spouses and partners.  The CIC will look closely to ensure the Canadian is not being duped by the foreign national.

You demonstrate the genuineness of your relationship by providing evidence that many or all elements of your lives are integrated in a married-like manner (e.g., communities, finances, and household) and it must be an exclusive relationship.   The CIC takes a conservative view of marriage and partnerships.  However, either partner may be married to a third person, provided clear evidence proves that married relationship has been severed and the couple separated.

Again, proving timeline and genuineness requires you to provide cogent evidence.  This is not a few form pages to fill out; rather, you may need to submit a 200 page application that is ready for appeal or judicial review.

SPONSORED CHILD

Meeting the definition. If you were a Canadian citizen at the time your biological child was born abroad, then they are automatically a citizen.  Otherwise, you can sponsor the following children:

• biological and legal;
• adopted;
• step (as dependents of your spouse or partner); and,
• grandchildren (as dependents of dependent children)

provided they meet the definition of a dependent, as follows:

• under 22 years at time of sponsorship application, and single continuously through to visa issuance
• over 22 years at time of sponsorship application, financially dependent on parents,studying (accredited institution) continuously through to visa issuance since before age 22.
• over 22 years at time of sponsorship application, financially dependent on parents duemental or physical condition, since before age 22.

Born Abroad Grandchildren. Citizenship Act amendments taking effect 17 April 2009 will deny citizenship to your grandchild who is the second generation born or adopted abroad, if your child/the parent to your grandchild obtained citizenship without first becoming a permanent resident.  Therefore, you should consider sponsoring your child’s application for permanent residence if the circumstances of your case permit.  In this way, your biological or adopted grandchild will automatically be Canadian citizens.

INADMISSIBILITIES

One may have a perfect permanent residence application, yet still be found inadmissible on the grounds of health, criminality, misrepresentation, organised crime, security, crimes against humanity.  This article will examine the first three grounds.

Your sponsored spouse, partner, and children are exempt from medical inadmissibility based on their condition causing excessive demand on health or social services.  However, if their health were to endanger the public, they would be inadmissible.

Your spouse or older child may sincerely believe that they have no criminal history.  This can lead to two common problems:

1)      they may not understand that a “minor” offence may be a crime in Canada, or that an act even without arrest or conviction, may make them inadmissible for criminality.

2)      they may innocently omit criminal history on their application, thus leaving themselves vulnerable to inadmissibility for misrepresentation.

You must counsel your family member to take extreme care when completing a permanent residence application.   The CIC interprets very broadly the definition for misrepresentation that in the legislation is “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act”.  If your spouse or partner is unlikely to be precise and accurate in his or her answers, then you have good reason to obtain assistance.

Timeline:  On average, 4-8 months.  The posted visa office processing times are historical, and subject to change, but usually a fairly reasonable guideline: http://www.cic.gc.ca/english/information/times/international/05-fc-spouses.asp

CONCLUSION

Canadian Expat citizens can sponsor their family member’s applications for permanent residence.  Canadian Expat permanent residents will need to arrange their affairs so as to first return to Canada.

Even if you have a straightforward case, the application to bring your loved ones to Canada is a tremendously important.  You should not rely on general advice on the CIC website or even this article, and gamble that your applications will proceed smoothly and be successful.  At the very least, you should review your unique circumstances with a lawyer who main practise areas include immigration and citizenship.

You are welcomed to ask questions here, and I will be pleased to provide general information.  You are also welcomed to contact me directly for case-specific advice.  When you do so, I will instruct you as to the documents and information required to ensure we comply with the British Columbia Law Society Rules that require me to identify clients and develop a clear solicitor-client relationship.  I look forward to your questions.

© 2009 Marina Lee Sedai.   All rights reserved.   This article protected by Canadian and international copyright laws.  Quoting or paraphrasing this article requires complete citation. Permission granted toThe Canadian Expat Association (www.thecanadianexpat.com) to wholly reproduce this article.

View Part Two: Part II: Sponsoring Extended Family Members

FOR FOREIGN NATIONALS

First published February 2009 at http://pucherinsurance.com/blog.php

The Canadian provincial public health care systems are not always available to temporary and permanent residents. Travellers sometimes believe that the health care plans from their countries of origin will protect them, only to be shocked that it does not cover all treatments, costs, duration of stay, or is not available at all.

Even young and healthy persons can require emergency care for accidents and other unexpected health issues. The costs can be ruinous, with a weeklong hospital stay costing tens to hundreds of thousands of dollars. As a result, Citizenship and Immigration Canada (“CIC”) takes a great interest in whether foreign nationals have private medical insurance. The CIC wants neither financially ruined foreign nationals in Canada nor to have the Canadian taxpayer foot the otherwise unpaid bill.

Temporary Residents – Visitors, Students, Workers

Provincial health care systems do not allow all temporary residents to enrol, so you should investigate. This article will consider British Columbia’s public medical insurance, to serve as an example.

The BC Medicare Protection Act [RSBC 1996] ch 286, s.7 (2) states that the public medical insurer, Medical Services Plan (“MSP”), “must… enroll as beneficiaries those … who are residents.”

The Act’s definition of “resident” is a person who

(b) makes his or her home in British Columbia, and

(c) is physically present in British Columbia at least 6 months in a calendar year,

and includes a person who is deemed under the regulations to be a resident but does not include a tourist or visitor to British Columbia.

The Medical and Health Care Services Regulations s.2 deems as a resident any foreign national who meets the criteria under paragraphs (b) and (c) of the definition above and who has a valid

• work permit;
• study permit; or,
• visitor status and who “is a spouse or child of a resident if the person has applied for permanent resident status and as long as the application remains active.”

Bridge Private Insurance

The Act s.7 (2) also states that enrolment in public medical insurance be “effective not more than 3 months after receipt of the application.”

Therefore, if a permanent or temporary resident were eligible to enrol in public medical insurance, that person would need private medical insurance to bridge the 2-3 month gap until the public medical insurance coverage starts.

The foregoing is crucial to knowing when you should provide evidence of your private medical coverage for immigration purposes.

Whether your application for temporary residence is made at a visa office or the Port of Entry, you may need to prove that you have private medical insurance. Visitors and students in particular must demonstrate that they have enough funds available for their stay, and private medical insurance is a related consideration, particularly if there are any pre-existing health issues or they are older.

Denial of Coverage and Inadequate Coverage

Public medical insurance plans do not cover all treatments, prescriptions, and care. Closely examine what your province will cover and look for “extended medical” private insurance that will provide better coverage.

Further, your legal eligibility to enrol in the public medical insurance plan does not ensure that you will be enrolled. Immigration lawyers are all too familiar with foreign nationals incorrectly being denied coverage. The unfortunate truth is that you may have a fight on your hands and you may still lose. Be prepared that you will need to continue your private medical insurance.

You should not rely only on the general advice on the provincial health care program websites or this article. This is a short overview and many exceptions to the foregoing information exist. You should seek advice based on your unique set of facts from legal and insurance professionals.

© 2009 Marina Lee Sedai. All rights reserved. This article protected by Canadian and international copyright laws. Quoting or paraphrasing this article requires complete citation. Permission granted to Dan Pucher Insurance to wholly reproduce this article.