As CIC cuts categories and quotas, the census underscores the importance of immigration to sustaining Canada’s population growth.

In the past 2 years, CIC has:

- reduced the number of refugees granted PR status in Canada by 25%

- reduced family class immigration by 15%

- shut down the parents & grandparents category for 2 years all the while issuing a press release saying CIC was shutting it down in order to speed up processing

- shut down the entrepreneur category

- introduced a quota on independent skilled workers in 2010 and then in 2011, cut that quota in half

- introduced a quota on investor immigrants in 2010 and then in 2011, cut that quota in half (the annual quota filled up in 2 weeks, effectively shutting the category down the for rest of the year)

- Jason Kenney has hinted at new policies to tighten up provincial nominee programs. Read: fewer immigrants in those categories and less discretion on the provinces to determine which  immigrants it selects

link to G&M article:

http://www.theglobeandmail.com/news/national/canadas-future-is-in-the-west-2011-census/article2330716/

link to data:

http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-310-x/98-310-x2011001-eng.cfm

This is my long-form comment about the amendments to the Labour Standards Act.

Background

Generally, temporary foreign workers are only allowed to take jobs inCanadawhen there are no Canadians or permanent residents available.  Sometimes they are vulnerable and prone to abuse and disadvantage. Their authorization to stay in Canada is usually tied to their employer. They may be reluctant to speak out against unsafe or illegal working conditions for fear of losing their job and being required to leaveCanada. There is evidence of abuse and difficult working conditions and employers who operate with impunity.

http://www.nsi-ins.ca/English/pdf/migrantworkers_eng_web.pdf

Some temporary foreign workers use agents (headhunters, consultants, etc) to find work inCanada. There are unethical agents who charge high or illegal fees or make false promises for jobs. In worst cases, they commit fraud. As in: no actual job in Canada for the worker who then owes thousands of dollars to a agent for getting here. Many of these unscrupulous agents operate overseas.

So it is good news that the province is attempting to create a regulatory scheme that is intended to eliminate these abuses.

However, after reviewing the Discussion Paper and the amendments to the Labour Standards Act, I have some concerns. Here are the areas I am most concerned about:

1.         Who is excluded from the new law?

2.         The rules already exist

3.         The burden on employers to register and pay all fees

4.         The requirement for immigration lawyers and consultants to be licensed as “recruiters” in order to assist employers

1.         Who is excluded?

Everyone but Labour Market Opinion (LMO)-based workers are excluded from this new law. I am not aware of the statistics, but my guess is that LMO-based work permits are less than 50% of work permits. What this means is the law will not apply to a large number of temporary foreign workers. Unlicensed agents will continue to be able to operate and take advantage of those excluded groups. 

This, in my opinion, is one of the weakest aspects of the new law. The rules should either apply to everyone or be precise according to skill level, just like the low-skilled worker categories Service Canada already has in place:

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

The reason the new law applies only to LMO-based permits is outlined in the Discussion Paper. With respect, I do not agree with that rationale.

First, LMO-based work permits create much more government involvement than most other work permits. For other types of work permits, Service Canada is generally not involved. There is far less oversight for those permits than for LMO-based work permits.

Second, there are many non-LMO work permits that can involve potentially vulnerable people. Under the new rules, any treaty-based work permit is excluded. Any “work without a permit” work permit (I realize this is oxymoronic, but that is an actual category) is excluded. Intra-company transferees are excluded. However, there are times when a temporary foreign worker jumps categories. For example, if you max-out your time as an Intra Company Transferee you may need a LMO. It is not reasonable to expect that you are more vulnerable 3 years into your time in Canada than you were when you first arrived. In addition, some permits allow you to work for one year without a LMO and then to extend/renew, you need to get one. By then, you have been working for the same employer for a year.

A better way to streamline this law would be to have it apply to employer-specific work permits for Skill Levels C and D and any of the other low-skill programs such as Seasonal Agriculture Workers and Live-in Caregivers. This would be consistent with Service Canada’s rules about temporary foreign workers in those categories.

2.         The rules already exist

Currently, for an employer to obtain a LMO, they have to promise compliance with all applicable provincial and federal laws including labour standards. Service Canada has a department dedicated to ensuring compliance.

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

How the current rules are enforced is not known. Last time I checked, there were no employers listed who had been barred from hiring temporary foreign workers due to failure to comply with Service Canada’s rules.

For a third party (recruiter, lawyer) to be involved, they have to be authorized to do that type of work:

http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=emp5520&ln=eng

The current Employer Declaration (for non-LMO permits), Third Party and LMO application forms make the employer’s responsibilities clear and attempt to make the involvement of third party representatives as transparent as possible. The bottom line is that Service Canada already has enough employer and third party representative information to enforce the rules and ensure compliance.

Enforcement is always the problem. Sometimes, an unscrupulous consultant or agent is involved but not named on the forms. These are sometimes called “ghost consultants” because they are involved but not visible to the government department tasked with ensuring compliance. The provincial legislation is presumably meant to further thwart the ghost consultant industry. If it works, great. But regardless of federal or provincial rules, ghost consultants and unscrupulous agents will continue to operate overseas.

If (federal) rules and tools already exist to limit an employer or recruiter’s ability to take advantage of a temporary foreign worker, then why the new (provincial) legislation?

3.         Burden on Employers

Creating this new layer of compliance places a burden on any company wanting to bring in temporary foreign workers. Under the new rules any employer wanting to obtain a Labour Market Opinion in Nova Scotia in order to hire a temporary foreign worker will have to be registered with the provincial regulator. Details of the registration process are vague at this point, but we know it will include paying a fee, and submitting company, workforce and financial information.

Furthermore, now employers will have to ensure compliance with two sets of federal laws (HRSDC and CIC) and one additional set of provincial laws. Given the complexity of these rules, it is practically mandatory to use an immigration lawyer or consultant for the paperwork. Presumably, small businesses will be hit the hardest as they are the ones with the narrower margins and smaller budgets for administrative and legal matters. One would expect that this will produce a chilling effect and a business -especially a small business- could be less likely to want to hire temporary foreign workers in order to avoid this red tape and expense.

Under the new law, employers must pay all recruitment costs and expenses to hire a temporary foreign worker. However, we often see situations where someone is here as a visitor and wants to stay. They find an employer willing to hire them, usually at a small business in a medium-skill level, such as a trade. The small business cannot bear the burden of the fees associated with the LMO and work permit application and as an incentive to hiring that person, the employee offers to pay those costs. This is illegal under the new law and there does not appear to give any option to waive this.

Why do employers need to register, especially if they are complying with Service Canada’s LMO rules? If they must register, there should be minimal cost to the employer and an effort should be made to make registration and renewal as simple as possible. Employers should only be required to disclose very general information.  If the new rules are limited only to LMO-based workers, all specific information required of an employer will be provided on the LMO application anyway. Consideration should be made to allow the possibility of a temporary foreign worker waiving the rules prohibiting them from paying fees in limited circumstances and perhaps only in certain higher skill levels.

4.         Professional Regulatory Bodies

I am limiting my comments to some general concerns as this is an area where it would be more appropriate for our Bar Society to provide specific input.

Some aspects of the new rules, including the licensing framework are problematic for lawyers and consultants who are bound by their own sets of professional and ethical rules and governance. There is potential for the two sets of rules to collide. By abiding by one, we could be breaking the other.  My knowledge is limited to rules governing lawyers as opposed to immigration consultants who are not lawyers and who are bound by a different set of rules. 

Many lawyers will have a philosophical problem with being considered a “recruiter”.  I don’t feel that is what I am doing in my practice, any more than a real estate lawyer should be considered a “realtor” for providing legal advice and services in a property transaction. But under the new rules, much of what immigration lawyers do will fall under the wide definition of “recruitment”. We will need to be licensed in order to carry on our immigration practice and provide legal services as usual. However, in being licensed and regulated by the Department of Labour and Advanced Education, lawyers are going to be required to follow a new set of rules.

Another issue lawyers may have with this legislation is putting them in the same category as immigration consultants in needing to go through the licensing process in the first place. While not completely absent from the legal profession, the bigger issues with the immigration consultant industry (unethical practices and a regulatory system that is somewhat lax or lacking) are distinct from the Canadian legal profession. And yet, lawyers keep getting grouped in the same category as immigration consultants. In reality, we provide a much narrower and more technical service than most consultants who can be involved in anything from form-filling to helping people with settlement such as finding housing.

Consideration should be made to exempting lawyers from having to become licensees.

If lawyers are required to be licensed, the licensing/renewal process should not:

-                     require a lawyer to breach solicitor-client privilege (i.e. by disclosing confidential information about a client to the new licensing body);

-                     require a lawyer to provide financial or trust account information about  specific clients; or

-                     conflict in any way with the rules of professional conduct imposed on lawyers by their governing body.

At minimum, the new rules should be interpreted and enforced in a manner that is consistent with the professional regulations licensees are bound by.

Finally, it is not clear from the Discussion Paper where these new rules leave legitimate employment agencies or headhunters. They cannot be licensed recruiters because they are not lawyers or immigration consultants. Other jurisdictions (i.e.Manitoba) have separate registration categories for those agencies. Hopefully those groups will provide input in this process.

Conclusion

In the last couple of years, the Federal government has been reducing options for permanent residence. In 2011, several categories were shut down and other categories had quotas reduced significantly. The thinking has been that temporary foreign worker programs would become more important.

The Temporary Foreign Worker program is about to become more complex than ever. It would be a shame if this made businesses less competitive because of the inability to bring certain skill-sets here or reduced the number of immigrants to the province.

The Worker Recruitment and Protection Act is intended to rid the province of unscrupulous recruitment practices and protect vulnerable temporary foreign workers. By doing so, the new rules will cast a wide net and cause upheaval, expense and inconvenience to employers, lawyers, consultants and agencies. I, for one, am ok with the upheaval if it the law does what it is supposed to.

The Department of Labour and Advanced Education has asked for comments on the Discussion Paper dated January 16, 2012.

http://www.gov.ns.ca/lae/employmentrights/docs/DiscussionPaperRegsForeignWorkers.pdf

Context

Some temporary foreign workers are vulnerable and prone to abuse and disadvantage by unethical recruiters and employers.

Comments:

1. Everyone but Labour Market Opinion (LMO)-based workers are excluded from this new law. That means unlicensed agents will continue to operate in all areas except LMOs. SUGGESTIONS: A better way to streamline this law would be to have it apply to all employer-specific work permits for Skill Levels C and D and any of the other low-skill programs such as Seasonal Agriculture Workers and Live In Caregivers. This would be consistent with Service Canada’s rules about temporary foreign workers in those categories.

2. Under the new rules any employer wanting to obtain a labour market opinion in order to hire a temporary foreign  worker will have to be registered with the provincial regulator. Details of the registration process are vague at this point, but we know it will include paying a fee, and submitting company, workforce and financial information. SUGGESTIONS: Why do employers need to register, especially if they are complying with Service Canada’s LMO rules? If they must register, there should be no cost to the employer and an effort should be made to make registration and renewal as simple as possible. Employers should only be required to disclose very general information.  If the new rules are limited only to LMO-based workers, all specific information required of an employer will be provided on the LMO application anyway.

3. Some aspects of the new rules, including the licensing regimen are problematic for lawyers and consultants who are bound by their own sets of professional and ethical rules and governance. There is potential for the two sets of rules to collide. SUGGESTIONS: These new rules should not (1) require a lawyer to breach solicitor-client privilege (i.e. by disclosing confidential information about a client to the new licensing body); (2) require a lawyer to provide financial or trust account information about specific clients; or (3) conflict in any way with the rules of professional conduct imposed on lawyers by their governing body. At minimum, the new rules should be interpreted and enforced in a manner that is consistent with the professional regulations licensees are bound by.

It’s almost Year of the Dragon. If I had to guess, from an immigration perspective, I would say 2012 is going to be the year of residency issues. Canada’s Minister of Citizenship and Immigration has vowed to investigate anyone suspected of obtaining permanent residence or citizenship fraudulently. Locally, we are seeing simple applications to renew permanent resident cards take 6 months or more. Many are being diverted to officers to scrutinize, which takes even longer. This is creating so many practical problems, I get depressed just thinking about them.

So how about some happy news? Well, not exactly happy, but a little info that some people don’t realize which could make someone, somewhere, happy. Here goes:

We get this question a lot - I am a Canadian living abroad with my spouse. We want to move back to Canada eventually so we want to start the immigration process. But what happens if we can’t find work in Canada or can’t stay for some other reason? Will my spouse lose his permanent residence status if we leave Canada?

The happy news is this: Once the spouse is a permanent resident of Canada, he (or she) can remain outside of Canada indefinitely provided he is accompanying a Canadian citizen abroad. Meaning, if the couple is together, the permanent resident’s status is safe.

This is often a surprise to people, so check out the actual section of the Immigration and Refugee Protection Act:

28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.

 (2) The following provisions govern the residency obligation under subsection (1):

 (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

 (i) physically present inCanada,

 (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

 (iii) outsideCanadaemployed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

 (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

 (v) referred to in regulations providing for other means of compliance;

 So what this means is as long as the Canadian citizen is with the permanent resident outside Canada for at least 730 days in every five year period, their status is safe.

Of course, there is a catch:

1. Getting Permanent Residence in the first place: When the spouse applies for permanent residence with the Canadian citizen as his sponsor, the Canadian citizen has to prove and declare her (or his) intention to move back to Canada. In other words, the plan must be that the happy couple intends to live in Canada once the application is finalized.

2. Proving you were outside Canada with your spouse: This can be tricky, just like trying to prove you were in Canada for a given period of time is tricky. These days, passports and entry/exit stamps are often not enough. Phone bills and leases are often rejected. Even bank statements can be discredited by officers looking at the file who say, well anyone could have used your bank card.

Do you know what does work? Dental records, proof of attendance at medical appointments, the gym, hair and personal care appointments, etc. Sometimes it is hard to prove you were in (or out) of Canada during a particular period of time. But I always tell clients if you have documents to prove your teeth or hands or hair were in a given place at a certain date and time, that’s going to be as good as it gets.

3. Qualifying for citizenship: This loophole does not give the permanent resident the days required to qualify for Canadian citizenship. The residency obligation for citizenship is different than for permanent residence, so even though you can maintain your permanent residence status while living abroad, you will eventually have to come here and be physically present inCanadafor 3 out of 4 years to qualify for citizenship. Some very obscure exceptions do apply, but I am not going to go into them here.

So to all the Canadian citizens wanting to bring their spouses to Canada: go for it.

Last month, CIC shut down the parents & grandparents permanent residence category. So if you want your parent or grandparent to come to Canada, you have to wait two years to apply to sponsor them. Until CIC shut it down it was taking up to 8 years to process those applications. That was a long time to wait. In some cases, it was what remained of a lifetime.

But as a consolation, CIC announced a new “Super Visa” category for parents and grandparents. Catchy name. Sort of. But what is it?

 If your parent or grandparent is from a non-visa exempt country, they can apply for a ten-year multi-entry Super Visa. Non visa-exempt countries are mostly poorer, in the global south or with a majority racialized population (see http://ccrweb.ca/en/res/visitor-visas-parents-and-grandparents).

 All the other regular criteria still apply: security, criminal and medical checks; promise to leave Canada at the end of your stay and maintain your ties abroad. You also have to show you have sufficient funds for your visit.

 But that’s not all. For the Super Visa, you must:

-                          Show proof of Canadian private medical insurance valid for at least one year; and

-                          Show proof that the “host” in Canada has sufficient household income to support all family members.

 You might be saying: “Good, we don’t want these people becoming a burden on our health care system. At least they can come for a longer visit. Canada cannot afford to provide health care for visitors.”

Listen: Canada never has – and never will – provide free health care to visitors. Until now, visitors either pay out-of-pocket for private insurance or out-of-pocket for health care. Sometimes both.

 But CIC doesn’t demand every visitor have private health coverage. Thousands of visitors come to Canada every year with no private health insurance at all. The health insurance requirement means wealthier Canadian families and people from wealthier countries will benefit most from the Super Visa. They can afford private health insurance at a cost of $250-$1000/month.

On the other hand, poorer Canadian families and people from poorer countries will suffer. Maybe that’s not a big surprise. But when you think about it, it’s often the poorer Canadian families who need a parent’s help, for example for childcare. 

I don’t want to be totally negative about this. Having a 10-year multi-entry visa is a good thing. It avoids the rigmarole of extending your stay every six months and having to do the “Buffalo shuffle” once a year for a new visa.  But did CIC really need to shut down an entire category and create a new one to accomplish something as simple as a 10-year multi-entry permit? Come on.

Similarly, did CIC really need spend 450 Million Dollars revamping the entire refugee system when the major problem was processing delays? 450 Million Dollars could go a long way towards hiring a few new judges to clear the backlog. It’s a pattern of massive, expensive changes with little net gain for Canadians or their families abroad. And in the case of the Super Visa, the new program unfairly discriminates against poorer families.

Super Visa. Wow. Super.

Link to the CIC bulletin:

http://www.cic.gc.ca/english/resources/manuals/bulletins/2011/ob357.asp

 Question: I am a permanent resident with a valid PR Card. I arrived at the airport and ended up being questioned for 3 hours about whether or not I can prove I live here. In the end the officer “reported” me for being inadmissible to Canada. Now I have to go back for another interview to deal with the report. What can I do? 

The short answer is that you should not have engaged in the officer’s questions when you entered. A permanent resident has no obligation to answer any questions regarding residency or any other suspected ground of inadmissibility at the border. The CIC policy manual (. Section 11 of ENF 4) puts it this way (POE stands for Port of Entry, BSO stands for Border Services Officer):

“When a permanent resident appears at a POE for examination, the BSO must determine whether the person is a permanent resident. BSOs must remain cognizant of the fact that the Act gives permanent residents ofCanadathe right to enterCanadaat a POE once it is established that a person is a permanent resident, regardless of non-compliance with the residency obligation in A28 or the presence of other inadmissibilities.

“BSOs can refuse entry to a permanent resident only when the person has already lost the status in accordance with the provisions of A46 (such as a final determination has been made that they have failed to comply with the residency obligations or when a removal order comes into effect). In other words, once a permanent resident’s status is established, the person may enter Canada by right and the immigration examination under IRPA concludes.”

But once someone has answered the questions (and raised the suspicion of the BSO), then what? In my experience, you are stuck having to answer to the “report”. Generally, this means going back to the border (usually airport) at a designated date and time with all your supporting documents and being interviewed by another officer (who is referred to as “the Minister’s Delegate”). At this stage, you are risking a finding of inadmissibility (i.e. the beginning of losing permanent residence status) so it is imperative that you have an immigration lawyer assist you throughout. It is never good to go to an interview like this without a representative, even in cases where it seems like there is a simple answer or the border officer has just made a mistake.

I had an interesting conversation with one of our favorite clients the other day. We have been working for her for many months and she called with a general question about a potential immigration application. She told me not to start any work on the file as she didn’t want to incur any expenses yet, although she knew I would have to charge her for the phone call.

Charge for the phone call?

Over the past three years, we have moved into a flat-rate billing system. We don’t charge for phone calls, emails or meetings. Unless the matter is completely unpredictable or the client requests an hourly rate, our fees are set at the beginning.

We posted all the fees online in February. Since then, we have had exactly:

-                Zero clients request hourly rates

-                2 matters we decided to take on at an hourly rate. Those are Federal Court files, with unique legal issues we have not dealt with before so it was impossible to set the rate from the beginning

When I started the flat rate system, I wasn’t sure how it would go – would clients like the flat rate? Would people balk at the costs? Would other lawyers hate me for posting my fees online?

Happily, the flat rates are working out. More predictability for clients means they pay our invoices quickly. The “Our Fees” page on the website has the most hits after the home page. And well, as far as other lawyers go, I guess it really doesn’t matter what they think. The bottom line for me: if I was a client this is what I would prefer. Complete predictability on fees means a better relationship with clients. No awkward phone calls about an unexpectedly high invoice. No hesitation for clients to call us with a question or update.

Now, obviously an area I need to work on is making sure clients understand what flat rate really means. For clients who are used to dealing with many lawyers for various corporate and employment matters, I realize now it can take some getting used to.

So no, there won’t be any charge for the phone call.

http://bit.ly/ttwYpq

Sounds easy, right? CIC keeps trying to make it simpler for people to do their own immigration paperwork. But they just keep making the process and explanations of the process more and more difficult. Who in their right mind (other than a curious and critical immigration lawyer…) would follow these links and actually feel like they understand the process? Plus, you have to love the fact that CIC refers to “Social Development Canada” (http://www.cic.gc.ca/english/hire/skilled.asp)

I feel sorry for employers who attempt to navigate through these rules for the first time, innocently thinking they are actually going to be able to bring a new worker into Canada (a) ever; or (b) in any sort of workable time-frame.

Then again, who doesn’t need a little help with their social development? Especially when you earnestly follow the government’s simple instructions which sends you in circles, cursing and pulling your hair out.

Hooray for simplicity.

It’s not even a week since the shipbuilding announcement and we are already talking about more temporary foreign workers in Nova Scotia. More people, more jobs, more money. All good. Unfortunately, the immigration process for temporary foreign workers is often unbelievably frustrating, especially for companies that are simply trying to bring the right people in quickly. The agreement between the federal government and province referred to in this article is not yet in place. Here’s hoping it will be fast-tracked to make the process smoother and faster.

http://thechronicleherald.ca/business/27004-ns-companies-turn-foreign-workers-fill-skilled-trades-shortage