There is a lot to love about Canadian immigration these days. Our immigration minister is the right person for the job: a refugee, a lawyer and former immigration lawyer. There is a general perception that our programs are fair yet firm (just stay off the Canada subreddit). Express Entry is ticking along nicely. You can get through to a human at IRCC and sometimes a human will respond, even use an exclamation mark here and there (massive shout-out to “Lucy” at IRCC). Whoever is running the @IRCC Twitter account has a sense of humor, previously unseen (is that you, Lucy?). Here in Nova Scotia, we have new programs and a provincial immigration office that is fast, responsive and competent. We’ve also almost finished a balmy winter worthy of Weather Smugness at least when we talk to people in Alberta and Ontario. Everything is relative here in Canada.

On the surface, it’s sunshine and roses. But of course it’s not really. There are serious, prevailing, systemic problems. And I’m not only talking about the increasing inland refugee backlog, which is due to a lack of resources and decision-makers. There are other problems, all I think at least partly related to a collective myopic-optimism that has lulled us into thinking that everything is going just fine, thank you very much.

Parent/Grandparent sponsorship: in 2017, IRCC changed this process to a lottery. But the details were never sorted out, so ineligible people could throw their names into the lottery, and throw off everyone else’s chances of getting selected. A year later, IRCC promised to tighten up the process. But when the program reopened in January 2018, it became apparent that almost nothing had changed – one optional question was added to remind people they should be eligible. Sad, sad trombones.

Caregiver program closes: On February 5, 2018, IRCC announced that the 2014 caregiver “pathway to permanent residence” pilot expires in November 2019. Over the years, it has become harder for caregivers in Canada on work permits to qualify for PR and now there is no assurance that after November 2019 there will be an option to get PR. My humble suggestion is that the NOC for caregivers get listed under the Federal Skilled Trades class to facilitate permanent residence through Express Entry, and recognize that (a) caregiving is a skilled occupation; and (b) people who take care of children and the elderly in Canada should be valued the same as anyone else, and deserve a means to obtain permanent residence, the same as butchers and bakers and candlestick makers.

No more self-employed farmers: For as long as I have been practicing law (15 years), Canada has had a self-employed permanent residence program for artists, athletes and farmers. It’s not a particularly well-used program, but is helpful especially since many immigration programs don’t easily recognize self-employment as qualifying work experience (I’m looking at you, CEC and Atlantic Immigration Pilot). As of March 10, 2018, no more farmers can go through that program. Wait, what? Wait, why?

The new and improved family class: It’s amazing to me that in December 2016 when IRCC streamlined the family class, it increased the document checklist from 3 pages to 10 pages and required that applications be submitted on paper and then later linked online, which has proven to be a vexing problem. We joke about it around the office, but for people who are doing the applications themselves, it’s incredibly confusing. Love prevails, but it can be messy.

Refugee Resettlement is too slow and numbers are too low: We were on such a roll in 2015 but since then, the numbers have dwindled. Processing times are increasing, and spots for government assisted refugees are static. IRCC recently announced 1000 more female refugees would be resettled, which is great, but a lot more should be done to bump up the quotas, streamline the process and get rid of the backlog. The 2015 situation was not a blip, it’s the new normal. Canada needs to have ongoing infrastructure and contingency plans.

Today, someone asked if I thought they would be welcome in Canada. They qualify for permanent residence and are exactly the kind of newcomer Canada is trying to attract. But they were feeling insecure about immigrating, and that everything they had read seemed so impossibly positive, there must be a catch.   I told them I thought they would be welcome here, but starting a new life anywhere is tough, even when you plan properly and things go smoothly.

It is the first time I have ever been asked that question.

So, yes, despite everything, feeling pretty good.

 

So much has been going on here at North Star Immigration Law that my head is spinning. We are expanding to a bigger space in a few months, have hired a new articling clerk and are in the process of a website revamp. To all the people whose calls I haven’t returned in the past few weeks – my apologies, I am getting to you!  But all of this pales in comparison to the changes afoot in immigration law and policy.

The new permanent residence process for spouses of Canadians is in full swing, and the reason I know this is that the lawyers in our office who deal with these applications are often seen pounding their heads on their desks trying to “link up” the application to the online system, as required. What was supposed to make things simpler has turned out to be a massive pain with more steps, more minefields and more opportunities for mistakes. But who ever said love was easy?

Speaking of love, I am feeling very sad for the 85,000 disappointed candidates who did not get selected in the parent sponsorship lottery. The lottery was hastily put together in mid-December. It was ill-thought out and it is going to create headaches for IRCC for months – if not years – to come. None of our clients (who qualified to sponsor their parent(s)) were selected. Worse, most the people who were selected and have consulted us for help with the forms do not actually qualify, so won’t make it through the program. So it will be interesting to find out how many of the total 10,000 drawn are actually qualified to sponsor? Psst…IRCC – how about next year making the questions more specific to ensure no one puts their name in the hat without actually meeting the requirements? Just a thought.

In other news, the age of dependents will go up to 22 on October 24, 2017, with some transitional provisions. This is great news for a lot of people.

The citizenship rules will also change in terms of requirements to qualify for a grant of citizenship and, as of the Federal Court’s decision yesterday, revocation proceedings. To put it politely, citizenship rules are still in flux, and will be for the foreseeable future.

Meanwhile, as the Parliamentary Standing Committee on Citizenship and Immigration for the Study on Immigration Consultants is underway, the new Atlantic Immigration Pilot Program (AIPP) has completely cut representatives out of this new program, which is being hailed as the be all and end all solution of Atlantic Canada’s immigration problem. Which is weird because there’s a rule that representatives must be authorized and disclosed (i.e. see s. 91 or IRPA or  “Concealed Representatives”). Under the AIPP, if clients or employers want to hire us to assist them, we are relegated to ghosting on the files only  – the NS Office of Immigration only communicates with the employers and applicants – there is no where we can even disclose ourselves as legal reps.

So that’s the round-up.

Yeehaw?

Many people have been waiting for news on the Canadian parent sponsor program, which was changed to a lottery system in late 2016. The program opened January 3, 2017 with a deadline of February 2, 2017 in which people could submit an online expression of interest for entry into the program.  The online form was so simplistic it frightened many of us – there were no eligibility questions, just a few personal details and contact information needed and voilà you’re in the lottery!

IRCC promised that sometime after February 2, 2017, 10,000 people would be selected at random to submit an application. Those 10,000 people would have 90 days to provide their documents to start the application process.  But when would this draw happen? And how? If some of those 10,000 didn’t actually qualify, what would happen to their spots?

IRCC has responded to some of these questions as follows:

…we can’t provide a firm timeline as to when potential sponsors will be contacted but we expect the letters will be sent in the next few weeks.

…the 10,000 who are randomly selected will then receive an email inviting them to apply to sponsor their parents or grandparents. They will have 90 days to send us their complete application. We will also email all those who were not chosen to let them know.

…As per Ministerial Instructions relating to the parent and grandparent program, a maximum of 10 000 sponsorship applications will be accepted for processing each year. 10,000 sponsors will be contacted and will have 90 days to submit a complete application.  

…If the Department does not receive 10,000 complete applications within the prescribed time frame, we will invite additional interested sponsors to submit an application. We expect this process to occur before the end of 2017

It doesn’t inspire a lot of hope that IRCC has taken over 2 months to do a computerized selection of the entries they have received.

In case you are stressed about this, look on the bright side: marijuana will be legal in Canada soon.

The night of the US election, before the results were fully in, I tweeted this:

Dear US friends: if this is actually happening, please come to Canada. And bring Hawaii. #Vote2016 #USElection2016

I was kidding of course. (Well actually, not the part about Hawaii. Canada has always needed a tropical province where we can drink Caesars. And, yes, we know we’d be terrible colonizers and if it came right down to it, Hawaii would throw us out and become sovereign before anyone could say humuhumunukunukuapua`a)

But now that the dust is settling and the calls and inquiries from Americans have increased, it is time to plot the steps to this last-resort plan. Not that we think Americans should cut and run to Canada. It is not our place to tell anyone what they should do, and we have a lot of respect for Americans and their country. And not that Canada is a utopian dream – if we were, cultural treasures like The Rock and Anna Paquin wouldn’t live in the United States.

So with all those qualifications, caveats and apologies that only a Canadian can make, here are some options if you are thinking about immigrating here:

  1. Do you have an adult child that is a Canadian citizen/PR? On January 1 of each year, Canada opens up the parent/grandparent sponsorship category which allows Canadian citizens and permanent residents to sponsor their parents or grandparents for permanent residence. The program fills up within a week or 2, so it is important to get the paperwork ready to submit on the first business day in January. Practically speaking, this means November is the time to gather and prepare the documents or wait until this time next year.
  1. Are you a rockstar/superstar/artist/athlete or farmer? If so, you may qualify for the “self employed” category. This is only for people with exceptional talents to apply for permanent residence. Note that the farmers don’t need to be exceptional talents, but they should have recent farm operation and management experience. Being able to raise prized chickens or blue-ribbon hogs is a bonus.
  1. Was one of your parents a Canadian citizen at the time of your birth? If so, you may already be a Canadian citizen and need to apply for a confirmation of citizenship. Once confirmed, you can move here and start watching hockey and drinking double doubles. Bonus: as a Canadian, you can sponsor your spouse and dependent children’s application for permanent residence and bring them with you.
  1. Do you have a job offer in one of the NAFTA Professions? As long as NAFTA remains in force, Americans and Mexicans who are in one of the professions listed can enter Canada on the strength of their qualifications and job offer with a Canadian company. This means you do not need to go though the usual hoops for a work permit, which include advertising to show there are no available Canadians, wage restrictions, etc. (Note, I have hyperlinked to a USCIS website because the Canadian immigration website keeps crashing. See? Canada is not perfect: our government can’t maintain a website that gets more than a few thousand hits a day. Sigh.)
  1. Has a Canadian offered to marry you to help you immigrate to Canada? Don’t.

These are just a few options for people considering a move north; there are many other categories of temporary residence and permanent residence in Canada. As always, we are happy to hear from anyone interested in knowing the options.

Although it is probably no consolation, we feel like we are in this together. And Canada is just as freaked out as you are right now.

Mark Holthe, an immigration lawyer in Lethbridge, Alberta was kind enough to invite me to be a guest on his latest podcast. It was a super fun experience and great to speak to a fellow Albertan. Thanks Mark!

Immigration Refugees and Citizenship Canada (IRCC) has an uncanny way of implementing systems meant to simplify things – that end up obscuring the process and driving applicants bananas.

It’s so irksome (or IRCC-some? HA!)

Crummy puns aside, this system and process can be incredibly stressful. People’s lives and futures depend on the information IRCC has about their applications.

A Toronto Star story provides a good example of what happens when you try to get a simple answer over the phone from the IRCC call centre agents.

IRCC eliminated front-counter services several years ago. This forced clients to rely on the Call Centre and online systems.

Also remember IRCC is a service department of our federal government. The same government operates other service-oriented departments much more smoothly (one hopes.) I never have this much trouble talking to someone at CRA about my taxes.

In our office, we gave up calling the Call Centre years ago.

Even if you get through, you rarely get any helpful information about your case. You cannot speak to a supervisor or manager. I confess, when one of my children was younger and wanted to play telephone, I would dial the Call Centre number and let her push random buttons, confident she would never ever reach a human being.

Instead of the Call Centre, we prefer the case-specific enquiry process these days. Using that system, you can make a request in writing, upload an additional document and (fingers crossed), get some sort of a response within 30 days.

The responses are still sometimes comical, such as this string of responses we received about a file we’ve been working on for over a year. IRCC had previously contacted us about it as the client’s representative.

Reply #1: Thank you for contacting Immigration, Refugees and Citizenship Canada. I am pleased to follow up on your request: We have verified the file of AB and there is no information stating that you are their representative.

(So we uploaded the representative form again and made a new inquiry.)

Reply #2: Thank you for contacting Immigration, Refugees and Citizenship Canada. I am pleased to follow up on your request: This message is to inform you that we have received the Use of representative (IMM5476) or the Release of Information to an Individual (IMM5475) form. The appointed representative has authorization to access the file.

(So we sent the inquiry again, for the 3rd time.)

Reply #3: Thank you for contacting Immigration, Refugees and Citizenship Canada. I am pleased to follow up on your request: To find answers to your questions, please visit the online Help Centre. Please note that you can also search by typing keywords.

It took over a month to get to that point. So they sent us to the IRCC website for answers, as if it hadn’t occurred to us to look on the website in the first place. Super.

Imagine you were the client on this file. Imagine the frustration of dealing with an unseen, labyrinthine bureaucracy when you are new to Canada, trying to reunite your family or just want to know the status of your file. It’s like dealing with a booming voice behind a sparkly curtain with no chance of insight into the status of your application.

This is just one example. I cannot count the number of times we have received “Your application has been withdrawn at your request, ”when we did not request any such thing or “your information has been noted,” with no reference to the client’s name or file number so we have no way of knowing who it relates to.

I know there are larger issues with the GCMS system and e-process IRCC uses. These are probably just minor hiccups compared to the massive task of managing and allocating the data IRCC collects. But it still drives us around the bend and causes unnecessary headaches.

Oh well, I guess there’s just no place like home Canada.

Sometimes immigration files go off the rails, and that is going to be the focus of my next few posts.

LMIAs and the Nova Scotia Nominee Program: the shelf-life of LMIAs for PNP applicants

“Packaged on” and “Best before” are 2 different things, right? Wrong.

One of our Nova Scotia Provincial Nominee Skilled Worker (PNP) applicants was refused for lack of recruitment because his Labour Market Impact Assessment (LMIA) was “expired”. Even though he had a valid LMIA-based work permit when he applied.

The refusal was puzzling to us. We have always understood that people with valid LMIA-based work permits qualified for this stream, and that evidence of recruitment wasn’t necessary. The forms even say this explicitly:

If the employer has received a positive LMIA opinion from Employment and Social Development Canada (Service Canada) for this position, attach a copy of the LMIA in which the applicant is named. No other recruitment documentation is required. [page 6]

This makes sense. LMIAs are usually valid for about 2 years and who better than Service Canada to assess and issue an opinion (LMIA) on whether the worker’s skills are needed? And once an employer has the LMIA in-hand, why on earth would they re-advertise for a job they just filled? Anyone who is familiar with the LMIA process these days knows how difficult they are to get – in the last 3 years this option has gone from the “go-to” route for employers to the absolute last resort.  So it defies logic that employers would have to re-recruit if their worker (and prospective permanent resident) has a valid LMIA and work permit.

But in our case, the file was refused because the Nova Scotia Office of Immigration (NSOI) deemed the LMIA “expired” 6 months after it was issued. The LMIA was therefore too stale to support an application under the PNP program. This is despite the “validity” period of the LMIA, which was the usual 2 years (i.e. the same as the work permit).

Crazy, right?

(Ok, maybe only crazy to immigration lawyers, and that one client who now understands the difference between expiry, duration and validity when it comes to LMIAs.)

The cause of this headstand-logic is a single sentence in the Skilled Worker manual, which is appended to the passage I quoted above:

The LMIA’s opinion expiry date must be later than the date of application to the Nova Scotia Office of Immigration (NSOI).

Expiry, duration, and validity: the distinction between these terms is simple but nuanced. Once an LMIA is issued, a worker has 6 months to apply for a work permit. The end of that 6 months is the “expiry date”. However, work permits can take anywhere from 1 day to 9 months to get, so rather than prejudice people who are from certain visa-required countries with slow processing times, once the permit is issued it will be for the two-year duration stated on the original LMIA. Otherwise, workers from a country such as Vietnam would arrive with work permits that expire in a week. That two years (or one or five) is the validity period.

We are questioning the decision and hoping the province reopens the matter based on the fact that (1) Service Canada is clear about this distinction – a LMIA is still valid after the 6-month expiry date as long as the work permit application has been made; and (2) we have got in the past  -and continue to get – nominations for people in the exact same situation – towards the end of their work permit (and LMIA validity period).

In response, the NSOI has told us that it considers LMIAs that are still valid – but close to the end of their duration – to be expired. Back to the grocery metaphor: you know that carton of milk you bought that expires in 2 weeks? It’s no good, so chuck it now.

What the NSOI cannot tell us is when, during that 2-year period, they consider the opinion to have gone sour. Apparently the decision as to when an LMIA has turned is up to whichever officer happens to be working on that file.

At this point, we are left advising clients that depending on the age of their valid work permit, they may or may not have access to the NS programs.

It will be a shame if the province doesn’t reconsider its refusal in this case. In the meantime, we definitely aren’t tossing anything out.

UPDATE: in the end, the province agreed with us that the validity period of the LMIA and work permit is the critical date, not the 6-month (or some other arbitrary) expiry period. Hooray for the province! 

Complaining and commiserating are so mid-2015. It’s time to make the immigration system work. No one expects flood gates to open, but we do hope for a well-thought out and practical immigration, citizenship and refugee strategy. Here are some quick thoughts on what the new government should consider:

  1. Re-staff immigration offices and processing centres to full capacity of permanent positions.
  2. Double the numbers: parent sponsorships, inland refugee quotas and provincial immigration allocations for those provinces who need it (ahem)
  3. Either fix or cancel the bogus (a word I learned from Jason Kenney, and by which I mean total bullshit) processes that have been put in place. Such as the “conditional permanent residence for spouses” restriction that is impossible to enforce. Or the fake “are you an abused caregiver?” hotline that accomplishes absolutely nothing unless you want to talk to an unsympathetic and ineffectual agent who promises to call you back in half an hour, and then never, ever calls you back. Or the totally broken “urgent PR Card renewal” process that is for people who need a new PR Card in less than the 6-12 months it currently takes. But urgent means nothing when all you get back are letters from immigration saying you have to follow the urgent processing steps and when you follow the steps, they write and say you have to follow the steps, and then you do it again and then you give up because your sick grandma who you were trying to visit is already dead.
  4. Fix what’s obviously broken. Some things are so pathetic they make my eyes water in verklempt irony. Like when the government froze the parent sponsorship process in 2011 to get rid of the backlog. At the time it closed, it took 5 or 6 years for a file to be processed and everyone agreed that was far too long. After being shut down for 2 years, it reopened on January 1, 2014 to 5,000 applications per year. Guess how long it takes now? Roughly 10 years. It’s almost funny until you realize the feds process permanent residence in Express Entry in less than 6 months. Hmmm…
  5. Rethink the sparkly new online filing systems that barely work. Such as being down all day. Or such as taking longer to process than using the paper process. 133 days for a visitor extension online right now, really CIC?
  6. For the love of God, reinstate the refugee health care provisions to what they were before the massive cuts in 2012.
  7. Make the idea of “temporary to permanent” a reality for foreign workers.
  8. Stop frivolous litigation (the refugee health care cuts and widespread appeals of citizenship approvals come directly to mind)
  9. Allow the provinces more latitude to choose their nominees and programs.
  10. Follow tried and true methods Canada has used in the past in order to get vulnerable Syrians out of harm’s way immediately. 25,000 would be a great start.

It is going to take a while for the dust to settle for those of us in the immigration field – we don’t quite know what we have been through for the last 10 years. Whatever it was, it wasn’t easy.

Effective immediately, we will be offering free consultations for family and friends of Syrians who are overseas and need information on their immigration and refugee options.

Please contact Liz at ewozniak@nsimmigration.ca to schedule an in-person or telephone consultation.

 

Immigration and refugee policy had been conspicuously absent from the Canadian campaign trail until last week when, on a day when many children were heading back to school, the body of 2-year-old Syrian Alan Kurdi washed up on a beach in Turkey. He had drowned with his mother and brother while trying to cross the Mediterranean in a dinghy.

There has been a lot said and written in the last few days, and more to come, to be sure. Lots of blaming. Lots of politicizing. Lots of hand-wringing.

Obviously the displacement of hundreds of thousands of Syrians (not to ignore other chronically displaced populations such as Eritreans, Afghanis and Iraqis) is a complicated problem. No one is going to solve it in one Tweet. But for those paying even peripheral attention to the situation in Syria, it was a slow-mo train wreck. And the dust hasn’t even started to settle.

Countries such as Lebanon, Turkey and Jordan are shouldering a disproportionate burden of the displaced populations. Meanwhile the Gulf States, masters at doing nothing to pick up any slack or provide anything other than token funding and marginal lip-service, haven’t stepped up in the slightest. No surprise there, as they have become really good at not helping the most perpetually displaced population on the planet: Palestinians. And it’s been decades. But you know what? That’s on them. It’s no excuse for the rest of the world to do nothing.

When I was in Malta in 2012, I couldn’t help but notice that, right there, in the middle of the Mediterranean, the population was strikingly ethnically homogenous. Where were the Somalis? Where were the Iraqis? I didn’t get it. And yet, the local newspapers had a lot of opinion pieces about the “threat” of “migrants” from Africa. I wondered where the fear was coming from.

Eventually, it was explained to me by the locals: Historically, the EU paid Libya to police the Mediterranean, and intercept refugees and migrants, returning them back to Africa via (no doubt) horrific methods and treatment. Libya wasn’t a signatory to any UN conventions on human rights and could “clean up” the Mediterranean with impunity. And in fact, be paid to do so.

This is one of the most shocking things I have ever heard, and there isn’t a lot of proof of it, so I hope my understanding is wrong or exaggerated, but that is how it was explained to me. Once Gaddafi’s regime fell, there was no one to do the EU’s dirty work. And once Gaddafi was gone and there was little structure left in Libya, it stopped with the rendition model and became all about the smuggle.

By 2012, the fear of large migrant populations had made it into the collective conscience in Malta.

Cut to 2015.

By this spring, the increasing numbers of people ending up on the shores of Greece and Italy has become a crisis. The UN’s special rapporteur on the human rights of migrants was interviewed in the Guardian and had these words, which resonate very sadly today:

We should do for the Syrians what we did 30 years ago for the Indochinese, and that’s a comprehensive plan of action where all global north countries – and that includes Europe, Canada, the US, Australia and New Zealand and probably other countries – offer a great number of Syrians an option so that they would line up in Istanbul, Amman and Beirut for a meaningful chance to resettle, instead of paying thousands of euros only to die with their children in the Mediterranean.

[Around the same time, Citizenship and Immigration Canada issued a press release boasting that it had finalized its first set of permanent residence applications under Express Entry in less than 3 months.]

The problem with the #refugeecrisis today is that there is a massive bottleneck in processing overseas applications, to the point of paralysis. Group of 5 Sponsorship applications take years to finalize and require near-impossible documentation. The processing centre in Winnipeg is taking months just to open the envelope and enter the application into the system to begin processing. If you have missed a document, the application will get returned to you unprocessed and you have to resubmit anew. By then, the immigration forms will have changed, meaning new signatures and updates have to be prepared, just to get the thing placed into the queue. And private sponsorship is no substitute for what the government can and ought to be doing.

Compounding the problem is that Canada has clearly dropped the ball on its plans to offer asylum to Syrian refugees. Instead of taking meaningful steps to inform Canadians and fix the problem, our Immigration Minister has chosen to deflect blame and criticize the media and other political parties. It has been profoundly disappointing to see a seasoned diplomat, who served in Afghanistan, and who is rumoured to be smart, principled and competent, react with more vitriol than compassion.

Worse, we still don’t know the numbers. As of writing, there have been no recent updates on the CIC or Government of Canada website on exactly how many Syrians are being processed and have actually arrived in Canada in 2015. Incidentally, there is an update of September 2, 2015 regarding Canadian military operations in Syria. So it’s not like the government is too busy to post updates on what it’s up to overseas.

There are quite a few suggestions floating around on what Canada can do to expedite processing and bring people here faster. Calgary immigration lawyer, Raj Sharma, makes some good suggestions on how the overseas process can be streamlined. Others recall how Vietnamese and Kosovar refugees were brought to Canada and processed inland, rather than languish years overseas while the paperwork is finalized. Why can’t we fly a few military planes of refugees to Greenwood like we did in 1999?

Finally, perspective is important. The world is mostly a peaceful place. And people are mostly healthy, educated, safe and protected. So there is plenty of room for compassion and aid. When faced with a crisis of this magnitude and geographic breadth, Canadians feel generally helpless.

What can we realistically do? Do we really believe that some of those people who risked their lives in rubber dinghies may be extremists who have gambled that they won’t drown in the Mediterranean and will be granted entry to a northern/western country only to turn rogue and attack us? Or are we prepared to offer safe haven to our fair share of the most vulnerable?

My humble suggestion is that we err on the side of informed generosity and global responsibility.

And do it quickly.