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.

2013 was kind of wild, even for immigration policy, which is always churning and bubbling and reshaping itself. Add in some juicy scandals, legislative overhauls plus some new programs and you can barely recognize the animal it was a year ago.

A highlight of 2013 for me was attending the CBA National Immigration Law Conference in Montreal in May with Lori and Cam. I even got to moderate a panel.

Top 3 list:

–       My favorite new development was the launch of the online application filing system for representatives in May. Lots of people gripe about it and the clunky platform. It definitely has its quirks, but I cannot wait until everything can be filed electronically. It is the right move and will be a great equalizer for the process which is fraught with unfairness depending on geography.  One example: we got an online supervisa approved for a parent who lives in Sierra Leone in just 10 days. Yes, it took 12 weeks to get her medical done and into the system, but she arrived safe and sound in early December. First flight of her life. She flew with carry-on only, like a champion.

–       After dreading the new refugee determination process, our first file went beautifully. I still have a zillion concerns about the new system, but seeing it work well was very reassuring and gives me a level of faith that I didn’t have before. A lot of the credit goes to Lori, who did a spectacular job representing the clients. First, she consulted a clinical psychologist and got a “Vulnerable Persons” designation for the file, then prepared her exhibits perfectly and had everything at the panel’s fingertips to the point that, at the end of the hearing, the panel member effusively complimented her preparation and representation. I’ve said it before and I will say it again, Lori Hill is awesome at her job.

–       Starting to fix the temporary foreign worker program: I don’t agree with everything that has been done (the need to advertise if you are trying to extend a current employee who is on an expiring post-graduation work permit comes to mind as most irksome…), but I am happy the feds are taking the criticisms more seriously and working to enforce the rules, which was shockingly lacking in the past. Canada Border Services Agency is working hard to bring unscrupulous employers to justice (This, for example) which is commendable and long overdue. And by the way, the recent outrage about access to the program by convicted human traffickers is a red herring, in my opinion: the government has cast a wide net to shut bad employers out of the LMO process. To stipulate that only those who are convicted are banned from the program would have been either redundant or way too narrow. Say what you want about Service Canada and Jason Kenney, but making life easier for convicted criminals is not one of their priorities. The press on the issue seemed far too reactionary and simplistic.


Bottom 3 list:

–       In April, the Nova Scotia Office of Immigration made a seemingly miniscule change to its eligibility requirements that would have a massive impact: It made post-graduation work permit holders ineligible for all NS immigration programs. It did this without a grace period or even any notice or announcement. Apparently, this was foisted on it by the feds. I cannot discuss this rationally (or at least without cursing like the Albertan that I am), so I am going to leave at this: that was a scoundrel move, Nova Scotia.

–       While we are on the topic of scoundrel-moves: on November 8, 2013, the feds announced there would be a change to the Canada Experience Class program that would make some of the most popular job categories ineligible. Effective November 9, 2013. Overnight, dreams and plans were dashed. In what world of procedural fairness, administrative processes and the illusion that the government cares about people (and if not people, at least optics) is this ok? It’s not.

–       Borrowing from my top 3 list for a second: in order to continue to employ someone whose post-graduation work permit is expiring, the employer needs a Labour Market Opinion (LMO). In order to get a LMO, as of August 2013, you now have to recruit for the position if it is a lower-skilled position and, regardless of skill level, you must pay the median wage for the position. So one day you have a smart, keen post-grad working for you and the next day you have to pay them more than other workers in your company AND advertise the position as if it is vacant.  There are lots of examples of this kind of emerging absurdity, which makes me wish the government was more thoughtful and less reactive when it made the sweeping changes to the TFW program last summer.


For 2014, we can expect more tweaks to the TFW program and apparently new rules on how (and how long it takes to) to become a citizen.

Locally, I am hoping for some effort in this province to create a points-based immigration program to recognize people who have family or connections here.


Office-wise, since 2010, every year has set a new record for work and revenue. We are expecting another record year. My philosophy about how we do things is simple: we are the kind of firm and lawyers we would want to hire. Each year, we become more agile and can tackle more complex matters. Our transparent, flat-rate billing systems and collaborative (3-lawyers working in tandem) approach to all files ensures we provide the best possible service we can. Not to say we never make mistakes. But when we do, we readily admit them and deal with them head-on, and thankfully have never had anything go seriously off the rails. In 2014, we will continue to fine-tune our unique approach of providing top-quality, innovative and cost-effective legal services to individuals and corporations.

Finally, a shout-out to Cameron MacLean, our newest addition at the firm. Lori and I worked with Cam years ago, when he was a paralegal, before he decided to go to law school. He’s an excellent writer and a sharp thinker. In addition to all his day-to-day work at the moment, he has been wrangling a pro bono overseas H&C into submission (literally). It is one of the most heart-wrenching and complicated H&Cs we have ever done. And it’s a long shot, so could prove to be incredibly disheartening, despite all the blood, sweat and tears. Cam is a great addition to the office and an excellent, cohesive co-worker, his Dollar Store office slippers notwithstanding.


Happy 2014 everyone!


I am displeased. The first day of spring was 19¾ days ago and it is snowhailing in Halifax tonight.  That’s not a word, but that’s what it’s doing.


But what bugs me more than snow in April is when people get all Blanche Dubois about immigration issues. Worse, when the government acts surprised by the fallout from its own policies, cutbacks and decisions. Like the RBC story which is churning through the media meat-grinder right now. It is so convenient to beat up on immigrants and immigration when problems are exposed.


The Alberta Federation of Labour has just published a scathing report about the “widespread abuse” and fraud of the TFW program.


The raw data is fascinating, but the conclusions in the report are circumspect. First, the AFL has created a chart of “questionable” LMOs. Questionable apparently means anything related to fast food. There is no information on the positions being filled or the wages being paid. Are the A&W jobs for managers or burger-flippers? Contrary to what the AFL concludes, there is a distinction. As critical as I am of HRDSC and CIC, this rhetoric is not at all helpful to the discussion. Even if the AFL doesn’t intend to do it, throwing around words like “abuse” and “fraud” in relation to immigration brings bigots crawling out of the woodwork. At the very least, that kind of language should be used responsibly with proper facts to back it up.


Back to the RBC mess. My guess is RBC will eventually to do the right thing and ensure those workers don’t lose their jobs. Of course, it is not really “the right thing”. It’s not based on benevolence or ethics, simply corporate self-preservation. But to the people needing to keep their jobs, it’s the same difference.


However, if not for the whistle-blowing, this never would have made it onto the radar. Let alone the line-up at my local coffee shop where I overheard the phrase “Get those imports out of here!”


He was not talking about the fair-trade coffee.


Corporations are beholden to their shareholders and shareholders want to see profits. And on that front, RBC delivers. It’s not enough to say we expect corporations not to exploit the loopholes in the rules. Close the loopholes.


The current immigration policy has shut down permanent residence programs in favour of temporary residence programs. That’s plain wrong. The numbers of temporary residents coming into Canada has increased year after year between 2008 and now, despite the recession.


Contrary to what the public perceives, the LMO application process is serious business. Here’s an example of one type of form an employer must fill out to apply for a LMO: ‪ 


Question 28 asks if employees have been laid off. Call me simplistic, but I think this question can easily be changed to keep up with the times.


Rather than:


Were any employees laid off in the past twelve months?


How about:


(a)  Were any employees laid off or positions outsourced in the past twelve months?


(b)  Is the position being filled a result of a layoff or outsourcing  by any of the following:


                                                       i.     the employer

                                                      ii.     an affiliate

                                                    iii.     a contractee

                                                    iv.     a contract for services between the employer and another entity or individual?


(If “yes”, provide details. If answers are “unknown” further investigation by HRDSC shall follow)

We promote globalization and corporatization and sell our resources to foreign interests and then freak out when 45 Canadians lose their jobs. A lot more than 45 government employees have lost their jobs this month due to cutbacks. I wonder how many of those jobs are being outsourced?


We accept downsizing in government services that shuts down offices and guts entire departments. Then we criticize the lack of skills and insight and attention of really important decision-makers like the TFW Units at HRDSC, Canadian embassies abroad and CIC offices in smaller centers. I don’t know for sure, but judging by the cranky officers I deal with on a daily basis, I am guessing the morale must be absolutely horrible in those workplaces. We jump to conclusions about systemic abuse and beat up on the little guys without all the facts.


The RBC debacle hit home with the public. And if fast food joints are getting A-LMOs for minimum-wage positions, that’s obviously scandalous. But before we throw the baby out with the bathwater, there are some simple things that can at least be considered. Calling for a halt to the TFW program and using language like abuse and fraud only feeds anti-immigrant sentiment.


How about making changes to close the lay-off-and-outsource loophole in order to keep up with globalization? How about ensuring we have good, skilled, efficient decision and policy-makers? Not to get too technical but how about getting rid of the 15% thing – it doesn’t work. How about implementing a better wage-gauge, rather than one based on the outdated NOC codes? How about giving the departments the tools needed to do their jobs competently, including investigating allegations of fraud and abuse?


How about changing that form?



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


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.


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:


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.


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:


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.



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.


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.

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.

A temporary resident in Canada is someone who is not a Canadian citizen but is in Canada for a temporary purpose. Temporary residents include temporary foreign workers, business visitors, international students, tourists and caregivers. Read more »