The new Atlantic Immigration Pilot Program – a silver lining in a week of bleak

On January 27, 2017, the new Atlantic Immigration Pilot Program (AIPP for short) was announced then soundly eclipsed by the fallout from an ice storm, an immigration mess in the US and then a terrorist attack at a Quebec mosque.

So much for fanfare.

But the new program warrants a close look.  I am enthusiastic about it because of the implications for international companies looking to establish new operations in Atlantic Canada.

Until now, we didn’t have any provincial temporary programs to attract workers who could also become permanent residents in the long term. The only way company could transfer workers to Nova Scotia was through the federal intra-company transferee rules or waiting until it was established here for 2 years then using the NS Nominee Program, which is mostly a permanent residence solution.

Now, the AIPP will enable a company (existing or new), to become “a designated employer” and provided it meets the criteria (for legitimacy such as not undercutting Canadian workers, hiring locally, bringing in people with skills, ensuring people have proper settlement supports when they get here), it can start bringing in workers quickly.

Like in a month or 2.

Those workers will be able to work temporarily while they await processing of their permanent residence.

So the details are still being worked out and the program doesn’t officially open until March, but so far it looks like a real win for Atlantic Canada. And despite the events of the past week, the timing really couldn’t have been better for companies looking to set up in Canada.

Here’s to changing the immigration landscape in Atlantic Canada. Quietly.

#MuslimBan: Like it or not, Canada is in this rodeo.

Last week, in a small but symbolic gesture, Canada seemed to align with the US on the reopening of the NAFTA. I was disappointed that we didn’t stand with Mexico and criticize the rhetoric coming from the US on an agreement that no one seemed to be seriously questioning before the US election cycle. But I assumed our foreign affairs department had its reasons to keep quiet. What do I know about trade, anyway? I thought.

Then with an Executive Order, the US resurrected the Keystone and Dakota Access Pipeline plans. And this was spun as good news in Canada. Ok, I thought, maybe there is justification for Keystone, what do I know about pipelines anyway? But DAPL? It was just 6 weeks ago that we saw the protest and standoff tip in favour of the resisters. What was that for if the US was just going to override it with one felt-tipped, angry-handed signature?

And then came yesterday. Massive and seemingly spontaneous airport protests, stranded and detained passengers, confusion as to who the travel-ban applied to. And then a succinct injunction granted at 9:46pm that confirmed my suspicions that law can be witchcraft and a court application is like a spell. If you cast it right, you can change the course of history. Late into the night, videos circulated of arrival doors sliding open and grandmas and grandpas tumbling through. Like it was Platform 9¾.

It was a sad and sobering thing to witness. Distressing, really. The only lightness came from wondering what Trump’s Twitter reaction was going to be. If he can’t handle inauguration reports that conflict with his narrative, how is he going to handle a real defeat?

It’s very strange times when you agree with both David Frum and Michael Moore on the same issues. Even Jason Kenney tweeted constructively, saying Canada should allow anyone stranded by the EO in temporarily on humanitarian and compassionate grounds. Although he still hasn’t answered my question.

Given these events in light of the other promises made by Trump during and since the election campaign, it is imperative that going forward, Canada is principled and firm in our protection of refugees and upholding international human rights obligations.

First, we should suspend the Safe Third Country Agreement. It recognizes the US as being on par with Canada in terms of human rights protections and a fair asylum process. Which clearly isn’t the case now that Trump has been unequivocal that from now on it is America first, human rights be damned. Practically speaking, the Safe Third Country Agreement means that anyone who has been in the US cannot make a refugee claim at a Canadian port of entry, so people have to sneak into Canada in order to avoid the application of the Agreement and make an inland refugee claim. This is underscored by the fact that the 7 countries banned by the US are all (except Iran) on Canada’s list of non-deportation countries, meaning Canada recognizes there are humanitarian crises of such significance happening right now that no one should be sent back to any of those places.

Second, Canada should implement temporary measures to ensure that anyone stranded by the effect of the EO will be safe, in order of the most vulnerable. So, for example, travel-ready refugees who are overseas awaiting resettlement in the US should be diverted to Canada immediately. The reports of refugees being diverted back yesterday was gut-wrenching. Our refugee resettlement process has ground to a near halt in recent months, we need to get our mojo back.

Third, Canada should create a temporary-to-permanent immigration program aimed at skilled and semi-skilled workers for companies that have a global workforce and want more stable headquarters. We should make some of the various pilot programs (currently or formerly in place for the IT, financial services, health care and digital media sectors) country-wide. The Atlantic provinces just announced a new pilot program but it is not apparent whether this will apply to only to companies already here or reputable international companies looking to establish here. It should.

Fourth, let’s call this what it is. Islamophobia. By naming it, we can try to avoid falling into its trap. I saw Dr. Barakat give this TED talk in San Francisco ten days before the US election, and it is even more jarring now that there seems to be a tacit license to be openly bigoted, if you’re so inclined.   The idea that preventing Muslims from entering the United States is somehow fighting the persecution of Christians overseas is false. There is no reason to barter away human rights over a fake threat.

And it’s only been a week.

Dispatches from the Love Department – the new “simplified” family class

Here at North Star Immigration Law, we have a Department of Love. This is the group of lawyers (and one fabulous paralegal) who work on all the family class files. You know: the long distance relationships that turn into love and marriage and baby (and sometimes – no kidding – puppy) carriages.

In December, IRCC announced it was going to simplify the spousal sponsorship process, so I asked the Love Department for some thoughts about the new process.

The new process requires two additional steps that will be initiated by IRCC:

  1. Schedule A Background Application Form (you cannot submit the form until requested – you cannot even access it now) and police certificates will be requested;
  2. The immigration medical will be requested (you cannot request an upfront medical now)

In the former process, the above documentation could have been provided upfront and it made it more efficient. For example, it was helpful to complete an upfront medical if you qualify for an expedited work permit, so you can work in healthcare or childcare, or in any type of job at a hospital or school.  We are not sure how that can be done now, unless the medical instruction arrives at least a month before the open work permit.

The document checklist is lengthier and will still be confusing for most applicants. For example, the sponsorship and relationship evaluation is much lengthier and more detailed than the two forms it replaced in the inland process.

The documents required to prove cohabitation (required for spouses and common law partners) are very specific and may not apply in all cohabitation circumstances. Now you must provide specific documents from several different lists: e.g. two of the following three types of documents:

  • shared lease/mortgage
  • shared utilities
  • proof of shared address with government-issued ID, insurance policies and other important government documentation

On a positive note, the new checklist intends to provide more guidance on exactly what category you wish to apply in (Spouse in Canada, or Family Class outside Canada), and which documents to provide (e.g. for dependent children who require proof of citizenship, or for previous relationships)

However, it is not intuitive that making additional requests for information will actually result in faster processing. It should be an option to submit everything at the outset if you have it.

From looking at the checklist it seems like in an effort to clarify what exactly IRCC is looking for in different situations, they are making the requirements more rigid and forcing relationships to fit into defined boxes This is probably just illustrative of the inherent challenges in trying to find objective criteria to assess something as subjective as a relationship.

So this an interesting change in terms of effort if not execution. As they say, love isn’t always perfect.

To end on a musical note which seems apropos of the new immigration rules and the new world order in general:

This thing could go two ways

Won’t be another exit for days

So pack a small suitcase

Anything else can be easily replaced *

*The New Pornographers, High Ticket Attraction

Changes to Express Entry: 200 is the new 600. Points, that is.

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Today, IRCC implements the new Ministerial Instructions for Express Entry.

So just like that, the playing field changes, the path to PR shifts and applicants must adapt to the new points allocations.

As mentioned in this Walrus article, this could make it easier for employer-specific, LMIA-exempt work permit holders to compete for permanent residence.

While not earth-shattering, this will be good news for some applicants, such as people here on NAFTA work permits. Unsurprisingly, it will be bad news for others: LMIAs are no longer the golden ticket to PR: now your position and skill level will determine whether you get 200 points or 50 towards arranged employment.  This should result in average scores going down, and a lower CRS cutoff for ITA issuance.

On the other hand, provincial nominee EE programs will still get 600 points, so the ITA scores probably won’t go below 400 anytime soon.

Just a prediction: PNP programs will get busier and Service Canada’s LMIA processing offices may get a slight reprieve.  Can’t complain there.

Now if IRCC would implement the new citizenship rules, we’d really be getting somewhere.

Come to Canada and bring Hawaii please

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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.

Immigration Whiskey Tango Foxtrots Part 3 – A podcast? Why not!

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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 Whiskey Tango Foxtrots Part 2: The [not so] wonderful wizards of IRCC

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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.

Immigration Whiskey Tango Foxtrots – Part 1: the shelf-life of LMIAs for PNP applicants

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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! 

NS: a little less conversation, a little more immigration

Nova Scotia tends to punch above its weight when it comes to national news stories, and the topic of immigration is no exception. #cbiftrumpwins took the Internet by storm earlier this year and is going to be a running joke for a while, if not a real solution if he seriously actually wins. And this month, we have the distinction of making it onto the paranoid/racist/conspiracy theorists’ radar with the unfortunate (and now deleted) article in the Chronicle Herald concerning trouble on a local school playground that anonymously, anecdotally and, therefore most likely unreliably, pins some very unacceptable behavior on refugee kids. The fall-out continues and people are still lit up about this. Everyone has an opinion. It’s only been 1000-ish newcomers and 2-ish months and this is where we’re at. <sigh>

Meanwhile, in our line of work, things appear to be moving along nicely for the province with its new Entrepreneur Stream (word on the street is 33/50 invitations so far and a lowest score of 108 to date). Although our clients haven’t been overly excited about a temporary-to-permanent program that will take 3-4 years to complete, obviously some people are interested. The NS Skilled Worker Stream continues to be one of our favorites for enabling people who are already here and working full-time access to a permanent residence program. In terms of federal programs, positive changes are already in the works (age of dependents for immigration and citizenship rules), and we are heavily involved in some interesting pro bono projects to assist with private sponsorship and family reunification applications for refugees.

Despite its national profile and obvious attributes, there is an undercurrent of futility in Nova Scotia that can get you down. In our work, we spend a lot of time talking to people who are new to Canada and who see the potential of this place. Every week, I hear new immigrants talk about the opportunities they see here and they wonder why no one else sees them. Although I feel the same way, I often try to temper their optimism by warning them that there is a lot of negativity in NS when it comes to new things, new ideas and new people. Want to buy a business? Expect HR trouble when you take over. Want to get a job here? Expect interview questions along the lines of “how do we know you will stay?” Want to start something new? Expect a lot of naysayers. Lots of problems get pointed out but there is not much in the way of solutions. As a law firm that is bucking trends with our structure and approach (flat rates, agile processes, focus on service and results), we feel it too. Our modus operandi is always to be clear and precise in what we do and why we are doing it and just ignore the haters. I tell clients the same thing – a little less conversation and a little more action is sometimes the only thing that gets you through.

Film, fisheries & Francophones: easing access to Canada

For the past 2 months, I have been on a bit of a blog hiatus – busy with things like getting the Halifax Refugee SSP up and running and a little vacation to Guadeloupe. The nice thing is, there’s lots to write about, and it’s mostly positive.

In 2016, the feds have made some major changes in who can get a work permit, when, and for how long.

In January, the film industry was granted a “significant benefit exemption” from LMIAs, meaning it is now easier foreign directors and producers to work in Canada. Sadly, this month is the one-year anniversary of the beginning of the end of the NS Film Tax credit which has gutted the industry in NS at a time when it could have been thriving with the favourable exchange rate, deep pool of talent and solid infrastructure. So the NS film industry likely won’t benefit from this exemption, at least in the short term.

In February, restrictions on the hiring of seasonal workers was lifted to enable more fish processing (and other seasonal) workers to come here for longer periods. This is great for employers who experience a chronic shortage of workers in the Maritimes. Unfortunately, seasonal workers are still completely shut out of permanent residence programs which is wrong on all levels.

Yesterday, the feds also made this curious announcement: “Starting June 1, 2016, the Mobilité Francophone stream will exempt employers from the Labour Market Impact Assessment process when they hire francophone workers in managerial, professional and technical/skilled trades occupations from abroad to work in francophone minority communities outside of Quebec.”

This could be really great news for parts of the Maritimes and also really great news for people from French-speaking African countries who are looking for opportunities in Canada but are largely shut out because of the impossibilities employers encounter in trying to hire foreign workers from visa-required countries. But the details aren’t clear, so for now, we wait and hope it will be a boon for NS and NB.

The feds are moving quickly on immigration. I hope the Nova Scotia Office of Immigration keeps up the momentum by enabling people who are here working in those programs access to the NS permanent residence streams. It is no-brainer that anyone with a full-time employment who is working and established here should be able to qualify for permanent residence. Unfortunately, there are so many barriers that the people who are most committed to smaller provinces are often shut out of the very provincial programs which should be enabling them to remain here long term. <sigh>

But I said positive news, so I’ll save the griping for next week.