By Attorney Henry Moyal

ONTARIO PASSES NEW NANNY PROTECTION LAW – BUT IS IT ENOUGH?

As of last week, the Ontario government passed the Employment Protection for Foreign Nationals Act. The Bill 210 passed 48 – 13 and which now makes it illegal for agencies to charge a recruitment fee to a caregiver to work in Ontario. But does it go far enough? Is it really going to stop agencies from doing business or from collecting fees from workers abroad who desperately want to come to Canada? I think not.

Canada is the only country which has an embedded program in its immigration laws that allow caregivers to become immigrants after two years of working. Caregivers in Israel for example can only be employed for the elderly and work visas are limited to five years. Caregivers in Libya or Saudi are not permitted to eventually become citizens of those countries. For those reasons, Canada is the number place to work as a caregiver because workers are almost sure that if they work for two years, they will become immigrants and then eventually citizens. That being said, will workers abroad think twice before giving thousands of dollars to agencies who promise them employers? Again, I think not.

The passing of the above law is welcoming but stakeholders and professionals who have worked in this field for over a decade know that it is something that should have happened long ago.
That being said, it is naïve to think that agencies and recruiters will just go away or not charge workers anymore. In my opinion, they will just adapt and find other tactics to collect money from workers abroad. It is naïve to think that workers will not be paying for placement fees. Again, the story will be different but the end result will be the same.

Further, it is a travesty that everyone is so focused on “ghost employers” and on workers who have made it to Canada and then become “released upon arrival” victims. While these workers undoubtedly have strong sympathetic causes, everyone forgets that they at least made it to Canada! It is certain that most agencies are not deterred by any potential lawsuits and are not afraid to face workers in Canada who complain that they have no jobs. What everyone (especially the media) is forgetting is that for every worker who makes it to Canada, there are perhaps hundreds who have paid thousands of dollars to sub-agencies abroad to get them employers in Canada that never materialize.

Case in point. Last edition of Balita published the law breaking news that a nanny in Canada was successful in suing an agency because she was promised a job in Canada and when she arrived no job existed. Yes, it is sad but let’s not forget that at least she had an employer (whether it was a ghost employer or not) and was successful in obtaining a work permit. I am not condoning the practice but one must look at the whole “nanny phenomenum” to fully comprehend what is happening. The article invited all those concerned to contact the writer. We received approximately ten inquiries from those in the same position. However, within the same period of time over 30 people contacted us to find out how they can get their money back from agencies to which they paid up to $5000 on the promise that they will look for an employer and after years no employers were found. It is such a simple scam. This is how it works. Let’s say a person in Dubai is looking to work in Canada. The local agency says – “ I know lots of people in Canada. Give me $5000 and I will find an employer”. The problem when no employer is found for months and months and sometimes years. In other words, there are thousands of people abroad who have paid approximately $5000 to these local agencies in their countries (let’s call them agency A). These agencies have a counterpart with a Canadian agency (let’s call them agency B) and the Agency A will collect usually half of the amount to look for an employer. The problem is that most of the time, no employer is found and Agency A keeps the money leaving the worker in the cold. We entertained over 30 calls from people in Canada and USA whose relatives abroad paid Agency A to find an employer. After months and years, still nothing has happened. In my opinion, an agency either should not take any fees until an employer is found or they should have a time limit (let’s say 6 months). If an employer is not found then a full refund should be given. It is now the wild west. Agencies A abroad are taking thousands of dollars from workers on fake promises. These agencies are not in Ontario and are not under the jurisdiction of the Ontario government. So who will stop them? No one. It is unfortunate that the media and government has missed the mark a little.

If nothing is done, I suppose we will have to wait another ten years until the media realizes what is so obvious now. Do not get me wrong, the new legislation is great but it is only provincial legislation. The Federal government must get on board and make serious changes to the way it issues work permits to caregivers. As I have said earlier, the best way to do so is for the Federal government to issue “non-employer” specific work permits to caregiver for a three year period. The current system is too open for abuse and while Ontario has made steps to close the gap, it does not go far enough.

Merry Christmas to all!

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by phone 416 733 3193 or email www.moyal.com

By Attorney Henry Moyal

ILLEGAL NANNY RECRUITERS TO BE JAILED

Under proposed legislation, Ontario stands to have the toughest law in Canada when it comes to nanny recruiters. Nanny recruiters face up to a year in jail and a fine of $50,000 if they are caught “directly or indirectly” charging foreign workers a fee to work in Canada. Up until now, it was the Wild West where agencies were charging whatever they wanted to innocent workers abroad searching for a better life opportunity. Hopefully, this will end the overseas practice of charging thousands of dollars to caregivers for jobs they never see. Actually, what is more common is when the nanny agency arranges a ghost employer just to get the caregiver into Canada and they are RUA (release upon arrival). In fact, the RUA term is so common that current workers in Canada often speak of it as a stepping stone to obtaining a work permit and then permanent residence. The difficulty arises when the RUA worker cannot obtain a new work permit within one year in order to fulfil the 24 month requirement to obtain immigrant status. This is more prevalent for male caregivers who are rarely hired to care for young children.

In addition, the new legislation will make it illegal for employers and recruiters to seize passports and work permits of the employees. While this is good news, it is unfortunate that the law has arrived so late after so many abuses by several agencies. This writer, in the last fifteen years, has first hand knowledge of recruiters who have loathed to such practices for years. As well, this writer was retained on several occasions to retrieve documents of innocent workers time and time again which often resulted in calls to the police and to the Philippine Consulate. It is disappointing to say that those agencies were reluctant to help and sometimes were not successful. The new legislation will finally have teeth which will make it officially illegal to take someone’s personal documents as hostage.

As well, the legislation is said to make it illegal for recruiters to pass along the fee via the employer. In other words, the caregiver will not pay any fee but she will have to work for free for three months for example.

While the above is finally good news, not everyone is happy. From media reports, several agencies in the city have stated that there will now be a shortage of caregivers for Canadian families. This is nonsense. There are an abundance of eligible workers in Canada and abroad who are eligible to enter Canada in the proper way without paying at times $10,000 to enter Canada for a fake employer. As well, hopefully workers abroad will now get the message that (a) they cannot be abused and (b) there are other ways to legally enter Canada. For example, several caregivers are recruited to work from abroad when they themselves have the skills to apply on their own merit. It is disappointing to see time and time again how qualified nurses apply as caregivers when they can simply qualify as immigrants and without the need of an employer. There is still hope however that the government will change its laws from a specific employer work permit program to a three year non-employer specific work permit program which will eliminate any fear of shortage of workers. Minister Kenney recently announced on CTV news that he is introducing new federal legislation to eradicate bogus immigration consultants as well an overhaul to the live in caregiver program.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by phone 416 733 3193 or email www.moyal.com

By Attorney Henry Moyal

USE OF FAKE PASSPORT CAN CAUSE PROBLEMS

Q. I entered Canada using someone else’s passport. I tried to obtain a visa using my own passport but was denied three times. I have met a man who now wants to marry me. I am using my real name for all documents except the marriage licence. The marriage office wanted to see my passport so I showed them the one I used to come to Canada. How can I get out of this mess?

A. Yes, it is a mess. For starters, it is never a good idea to continue with the lie. It is one thing to come to Canada using a fake passport but do not keep on using that person’s name. It will only get you deeper into trouble. You have not yet married (a marriage licence application is not a marriage) so that is good. You must use your real name. The problem you face will involve using the proper application for sponsorship and then convincing immigration of your entry upon arrival. It can be tricky. I suggest you obtain professional advice.

Q. I am the employer for a live in caregiver who resides in the Philippines. She just obtained her work permit but was told that she cannot leave the Philippines until she obtains the proper documents from the POEA. The POEA is now requiring me (the employer) to go to the Toronto Philippine Consulate to pay a fee and sign some forms. Is this a new procedure?

A. I contacted the Philippine Consulate and the POEA / POLO (Philippine Overseas Labor Office) introduced this new policy recently. It is my understanding that Filipino LCP workers can be prevented from leaving Manila unless they get their contract verified by the POEA. As well, the employer must sign an addendum undertaking to be responsible for:

the cost of two way transportation
health coverage
termination shall be for cause
cost of repatriation of remains to the Philippines.

It will cost the employer $38.75 to have the signature verified. After that the Philippine Consulate contacts the POEA who in turn issue the exit visa to the worker.

Q. My brother wants to immigrate to Canada. His occupation is not one in demand. If I get him a job offer does it help? Does the job offer need to be in an occupation that is demand? What does the employer need to do?

A. Under new rules, an applicant must have at least one year of work experience in one of 38 occupations in demand. If they do, then no job offer is required. If they do not, then a job offer will render then eligible to file the application. The job offer does not need to be one of the 38 occupations. It can be any skilled occupation. The employer must be a company that has been in existence for at least one year and has been paying taxes for at least one employee. Family businesses are eligible and in many cases this is a good avenue to bring over relatives for Canadians who have restaurants or convenience stores that usually require trusted employees.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by phone 416 733 3193 or email www.moyal.com

By Attorney Henry Moyal

NEW LEGISLATION FAILS TO PROTECT FOREIGN WORKERS

It was announced last week that the Canadian government is introducing legislation to protect foreign workers from exploitation and abuse. The changes will permit immigration officials to deny work permits to caregivers who they feel will be victimized in Canada. Hoping to prevent abuse before it happens, the amendments to the Immigration and Refugee Protection Act gives the power to immigration officers at the airport/land borders to refuse to issue work permits to nannies if the officer believes that the worker will be exploited. While it sounds good in theory, in my opinion, it perhaps gives too much power to officers and more importantly, it punishes the wrong group of people. Denying the caregiver a work permit will not curb the abuse. Denying the caregiver a work permit only punishes the worker (by denying her the work permit and refusing her entry) and does nothing to punish Canadian recruiters and Canadian employers who may be exploiting foreign help.

It is all too common to hear stories of how caregivers pay thousands of dollars and wait months and months to get to Canada. Under the new rules, the officers can refuse to issue the work permit to the caregiver at the airport and send her/him back to the Philippines if the officer is of the view that she will exploited or the employer is not genuine. But who is suffering here? Only the worker! The worker has already paid the money to the recruiter and in the end the worker does not enter Canada while the recruiter is safe from harm in Canada. The law simply does nothing to protect exploitation.

However, it seems that border officials are using some of their ammunition to investigate fraud and misrepresentations made at the port of entry. In a recent case at the Ontario Court of Justice, R. v. Estipona (2009 ONCJ 263, Brampton Court File No. 004011, J.D. Karswick J.), the defendant Estipona was charged that on February 3, 2008, at Lester B. Pearson Airport, she did counsel, induce, aid, abet or attempt to counsel, induce, aid or abet Maria (real name withheld) to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of the Immigration and Refugee Protection Act, contrary to section 126 of the Act, and further that she did, directly or indirectly, misrepresent or withhold material facts relating to a relevant matter, that is, misrepresentation of facts surrounding an application or live-in caregiver program that induces or could induce an error in the administration of the Act contrary to section 127(a).

According to public records and the court decision of Justice J.D. KARSWICK J, the facts are as follows:

Mr. Brown ((real name withheld), as the employer, and Maria, as the employee, entered into a Live-In Caregiver Employment Contract, which was signed by Mr. Brown and Maria in 2007. On February 3, 2008, upon her arrival at the Lester B. Pearson Airport, Maria presented herself to a border securities officer. She produced the employment contract and advised that she was coming to Canada as a caregiver and that her cousin, Ms. Estipona, had found her a Canadian employer and that she had paid Ms. Estipona $1,000.00 to process the papers. The immigration official paged Ms. Estipona, and upon further discussions, he detected discrepancies in their statements. Upon interviewing Mr. Brown, the immigration official was informed that Mr. Brown was no longer in a position to hire a nanny. The immigration official refused to issue a work permit to Maria and instead telephoned the Criminal Investigation Unit. Ms. Estipona was arrested and charged with two offences.

With respect to the first charge of counseling, inducing, aiding or abetting Maria to violate the provisions of section 126 of the Act, the court found that Ms. Estipona knew that Mr. Brown was not a legitimate employer and that she informed Maria that he was not a legitimate employer, and that she entered into an illicit plan with Maria to withhold this material fact from the immigration authority, so that the immigration authorities would rely on a fraudulent contract and allow Maria to receive a work permit and to enter Canada.

Regarding the second charge, Ms. Estipona stated that she spoke to Mr. Brown about his holding himself out as the employer and that she promised to give him $1,000.00 and that it was she who filled out the application to the immigration authorities and that he then signed it. The most incriminating evidence of Ms. Estipona’s misrepresentation to the immigration authority was her admission that it was she who prepared that application. In the end, Ms. Estipona was found guilty of both charges.

The above case illustrates how far the live in caregiver has evolved. In its early days, the live in caregiver program was a quick way to enter the country for health care professionals and relatives. It was a lucrative business for agencies who travelled abroad to collect resumes to match them with Canadian employers. That has all changed. The exploitation of workers by Canadian employers and recruiters has now resulted in having immigration officials scrutinize every aspect of every work permit. It will be interesting to see what the next chapter will be…perhaps scrapping the whole program altogether.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

LIVE IN CAREGIVER PROGRAM REQUIRES CHANGES

It is no secret that the live in caregiver program is a hot topic nowadays. The local TV and newspapers establishments have picked up several sensational stories to highlight the nanny industry. First there was the process of how caregivers enter Canada and with that came an investigation on recruiters who charge thousands of dollars for jobs that do not exist. Now, the hot button seems to be the plight of caregivers who are already in Canada. With that we are seeing front page articles in newspapers day after day describing how employers are treating their nannies and in some cases how nannies are working without work permits.

The media coverage is interesting, entertaining and positive. But for anyone who is involved within the Filipino community and or who has experience working with caregivers, the highlighted stories are nothing new. At present, a local MP is accused of hiring a nanny with no work permit. This is nothing new as many caregivers do so between jobs. The live in caregiver program has been in existence for many years and the problems of the program have been ongoing for years. Why did it take so long for the government to start listening is a mystery?

In reality, the live in caregiver program has been broken for years. On November 2, 2004, an article appeared in the Toronto Star claiming stating that the then MP Judy Sgro was committed to changing the system. MP Judy Sgro, stated that the LIC program was “under review”. She said “”I don’t want anyone being exploited or ill-treated”. But that was over four years ago, the government has done nothing and the abuses that have been ongoing for years.

So what is the solution? To abolish the entire program? I say no as the live in caregiver program is needed to help both workers and employers who require full time care. A more logistic and beneficial approach would be to issue work permits to live in caregivers for a period a three years (as they do now) but that it not be employer specific. In other words, the applicant (for example in Manila) applies at the Canadian Embassy in Manila for a work permit and must qualify under the regular statutory requirements. Once approved, the applicant is issued a three year work permit to work in Canada only as a live in caregiver for any employer. The applicant is then free to come to Canada to work for any employer he/she wishes. After accumulating 24 months of employment within the three years, the applicant then applies for permanent residence as they do now.

In my opinion, the above proposal is a no-brainer and will eliminate all the problems that we are having now. In particular:

No “Ghost Employer” problem – the applicant does not need to rely on getting that initial employer in Canada to sponsor them to obtain the work permit.
No more paying thousands of dollars to agencies abroad – Similarly, agencies cannot charge these workers abroad thousands of dollars to find an employer because no employer (LMO) is required to arrive in Canada. The worker enters Canada with an “open” three year work permit to work as a live in caregiver for anyone they want.
No more illegal employment – In my opinion, many caregivers work illegally because they need the money AND it simply takes too long to get a new work permit when a LIC wants to change employers. When one changes employers, there can be a gap of several months and to sit and wait is not productive.

The live in caregiver program needs changes. Time will tell to see if the above proposal ever passes legislation.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

REFUGEE CLAIMANTS STILL GETTING POOR ADVICE FROM CONSULTANTS

Q. I’m over 50 years old and I entered Canada to visit my daughter about two years ago. My daughter does not have sufficient income to sponsor me at this time so my consultant suggested that I claim refugee status in order to buy time in Canada. My daughter will be getting married soon so we are hoping that her income will be more in future. My question is whether the refugee claim will be a factor in the sponsorship application if it eventually refused?

A. Ok, let’s see. You entered Canada two years ago and delayed your fear of persecution for two years. You then contacted a consultant who has no law degree or licence to practice law. You then admittedly filed a bogus refugee claim in order to simply buy time. Given those facts, I would have to say that your refugee claim will certainly be refused and it is unethical and improper for the consultant to file an application knowing it is false or turning a blind eye to the facts. In your defence, perhaps you were led to believe that the consultant was a lawyer as many of them give the impression that their office is a law office or perhaps they trick you with their name such as “ ABC Legal Services”. The bottom line is that the refugee system is designed to protect genuine claims and to simply clog up the courts to “buy time” is an abuse.

Secondly, if your daughter is getting married, her spouse would be able to be a co-signer to add to the family income. In my opinion, the bogus refugee claim was a bad decision and that a sponsorship application would be a better route. The reason is that a sponsorship application refusal gives rise to an automatic appeal right. At the appeal you can argue that your daughter now has sufficient income. Since sponsorships are taking over two years, it is likely that you will be deported by then and then you will need special authorization to return to Canada.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

GOVERNMENT FINALLY ACTS AGAINST NANNY AGENCIES

The expression “better late than never” has never been more appropriately used than what has transpired in the last few weeks. For the longest time, nanny agencies in Ontario have been taking advantage of vulnerable caregivers and promise them jobs that simply do not exist. While many Ontario agencies declare that they have nothing to do with the fact that many of the employers change their mind when the worker arrives, the opposite is actually true. The truth has finally come out and thanks to media pressure the industry is now out in the open where the public now knows how these agencies really operate.

For example, the agencies are well aware that the workers should not be paying for placement fees but it is common for agencies in Ontario to have an “agent” abroad who charge the workers up to $10,000. In many cases, the agencies have filed applications under the name of employers who really do not need workers. The goal is to have the worker enter Canada on the “ghost employers” work permit, then get released and then find a new employer.

Thankfully, that will all stop if the government changes the rules as they have promised. Under their proposal, agencies will have to be regulated and there will be a ban on charging fees to workers as they have done in Manitoba. As well, any agency that is caught violating the law will be fined up to $50,000 and be blacklisted.

For those who have been victimized, the above measures may be a little late but there are still remedies available. Firstly, it is important for victims to speak out against these agencies who charge thousands of dollars for bogus employers. To do so, workers can contact our office where we are compiling a report to the minister with a list of agencies who must be under surveillance. Secondly, there is a civil remedy in the courts. Workers who feel that they should be compensated are also encouraged to contact our office where we are attempting to commence a class action against these agencies who have consistently scammed people. Time for justice has begun.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

ARE YOU CURRENTLY ON H1B STATUS? H1B WORKERS CAN IMMIGRATE TO CANADA IN LESS THAN A YEAR

Q. I came to Canada about ten years ago. I originally lived in Vancouver for the first few years. After my refugee claim was refused in B.C. I moved to Toronto. I have not heard from immigration since then and last week I married a Canadian woman who is eager to sponsor me. I was informed that I do not have to leave Canada for this and can be processed in Canada. I was told by someone that as long as I am married to a Canadian no one can make me leave. How true is that? I am afraid to use my real name on any documents or to file any type of application because of my fear that immigration will come to my door and put me in jail.

A. Your story is the exact reason why it is so “dangerous” to make a refugee claim that has little merit. Since the statistics show that it is more than likely that a refugee case from the Philippines will be refused, it is unfortunate that you did not obtain some advice before making a claim. The fact that you have been refused means that there is a removal order against you. In my opinion, if the refusal was about ten years ago then immigration has been looking for you. You have stated that you moved to Toronto? Did you inform immigration of your new address? In many cases people move and do not inform immigration of their new address and then are “surprised” that there has been an outstanding warrant. You may have moved but immigration still sends all letters to your last address. When you do not show up for their interview they will assume you are in hiding. The onus is upon you to inform immigration of any changes not vice versa.

Given the above you are considered “removal ready” and that takes you out of the eligibility criteria to file a spousal sponsorship from inside of Canada. Yes, many people think that if you marry a Canadian then you are free but that is not correct. Firstly, you must file a sponsorship application. Merely getting married will get you no where. Secondly, the spousal sponsorship application must be filed before you are “removal ready” as per the immigration manual. Since you are probably under a removal order and perhaps a warrant then you can only file the application outside of Canada. This does not mean that you cannot come back to Canada. If your marriage to the Canadian is genuine, then it is best to file the application from abroad. You will then need to exit Canada and then return as a permanent resident.

Finally, using false names is just making matters worse as that can be criminal. I understand why you are doing it but such actions will not lead to anything helpful. I suggest you seek professional advice from an immigration lawyer (not a consultant, not a friend and not from a community group) to find out more about your immigration situation from Canada Enforcement and then take the necessary steps to be sponsored.

Q. I am a Filipina visitor in Canada. I have been offered a position to work as a nurse. The job offer has been approved by Service Canada. I know many people who file their work permit in the USA as caregivers. I do not have a USA visa. Can’t I obtain a work permit from inside of Canada since I am a nurse? How about at the border?

A. The rule is that first time work permits cannot be obtained inside Canada (extensions can). As such, since you are from a country that requires a visa to enter Canada then you are not eligible to apply for the work permit at the port of entry. You will need to apply for the work permit in your home country or USA. If you do not have a USA visa, then the USA consulate usually grants “one day visas” if you are going to a Canadian Consulate in the USA for an interview. The interview notice is required.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

ARE YOU CURRENTLY ON H1B STATUS? H1B WORKERS CAN IMMIGRATE TO CANADA IN LESS THAN A YEAR

With the political turmoil in the United States and Canada and with the upcoming elections in both countries, the province of Alberta, Canada has recently announced another fast-track immigration program that is geared to recruiting temporary workers in the United States to Canada. According to Alberta government officials, the new program is finalizing applications in as little as six months.

The province of Alberta has a population of about 3.3 million and is experiencing explosive population and economic growth particularly in oil and natural gas production. With its explaining cities and low unemployment rate, it is a haven for skilled workers who have the North American work experience, know the culture and speak English.

The most attractive part of the new program is that no job offer from an employer is required and no sponsor is required. An applicant can qualify on their own merit and permanent residence will be obtained in less than a year. The applicant is able to include their spouses, common law partners and dependant children on their application thus obtaining residence for the whole family at once.

The above program is a golden ticket to those who are interested in immigrating to Canada mainly due to the fact that the Federal Immigration Minister has recently announced upcoming changes to the Federal Immigration laws. As discussed in early articles, the upcoming changes can impact thousands of cases and close the doors on many would be immigrants if they do not fall within the parameters of the “occupational list” that the minister is proposing to reveal by the end of the year. To be safe, the solution is therefore to apply to Alberta which will not be altered by any election results. The Alberta government has a treaty with the Federal government to select its own immigrant on what ever basis they deem fit. Changes to the federal system will not affect those who apply through a province.

How does one qualify for Alberta’s Strategic US Visa Category?

Applicants must be currently working in the USA in one of the following categories (H-1B, H1-B1, H-1C, E-3).
Applicants must have a minimum of one year of work experience in the USA in one of the categories above
The applicant’s occupation must be in demand in Alberta
No job offer from an Alberta employer is required*
There is no requirement that a relative be living in Alberta.*

*Applicant’s with job offers or relatives in Canada are able to apply under the separate and equally fast Skilled Stream or Family Stream.

Who does not qualify for Alberta’s Strategic US Visa Category?
Applicants who are refugee claimants or entered the USA as visitors and overstayed do not qualify. Applicants in these situations are able to apply under the federal immigration program.

How does one apply for the Alberta’s Strategic US Visa Category?
Currently, the application forms are not available on line. Applicants who feel they are qualified must first be pre-approved.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

SPOUSAL SPONSORSHIP CANNOT ALWAYS BE FILED IN CANADA

Q. I am trying to understand more clearly the difference of filing a spousal sponsorship application for my spouse in Canada vs. outside of Canada. To give you some background, I am a Canadian Citizen and I have never sponsored anyone before. I met a woman about two years ago at a community centre and we recently married. I was not involved in her early dealings with immigration but from the information she provided, it seems that she came to Canada to work in Montreal and her work permit expired. She tried to apply for residence but the application went no where. She was required to leave the country and attend an interview but never showed up and moved to Toronto. I have read that a person who is illegal in Canada can still apply for residence if they marry a Canadian. Is that still correct? I also heard that it is faster to file the application from outside of Canada. What would you recommend?

A. I usually recommend options to a client once it is clear that they are two or more options. I do not believe you have any options in this case. From the information provided, it seems that your wife has already been contacted to leave the country. The fact that she did not show up is a separate and serious matter but for the purposes of answering your question, I do not see how she can be processed in Canada. Yes, you are correct. Applicants who no longer have status in Canada can still file a spousal application inside of Canada but you need to read the fine print. That is, if the applicant has already been called for removal or what is called “removal ready” then the inland spousal sponsorship is no longer an option.

As well, if you file the application from abroad it does not necessarily mean that she must leave the country. I would definitely look to see if there are any enforcement proceedings against her and then file an overseas application which gives you an automatic right to an appeal (if refused) and is generally a faster process.

Q. I want to sponsor my niece to come to Canada to look after my mother. I have very little knowledge about these types of applications and want to make sure that the application will be successful before I even start. Under what circumstances can this application fail?
A. The Canadian Embassy in Manila is the office responsible for determining if the applicant (your niece) is eligible for work permit. There are several reasons for applications of this type to be refused. The most popular are:

No Genuine Need to hire a full time caregiver – this is becoming a popular ground for refusal. The employer must have an actual and genuine need for a full time caregiver. If the employer does not need a full time caregiver to care for child care or elderly, the application may be refused. Sometimes, the embassy will not approve applications for school aged children since they are in school all day and the caregiver is not working full time.
Unsuitable Accommodations – the employer must ensure that there is ample room in their house to provide a private locked room for the caregiver. If the employer has 3 children and only three rooms in the home, the embassy will assume that there is no room given the family configuration and refuse the application.
Financial Inability of Employer – the employer must provide tax documents clearing indicating they have sufficient income to care for their own family + pay the wages of the worker. The level used is the low income cut off chart plus about $20,000 in wages for the worker.

*We would like to take this opportunity to thank all our avid readers and the staff at Balita for their support and contributions this past year. May the coming year bring peace and happiness to all. Happy Holidays*

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

NEW CANADIAN IMMIGRATION LAWS WILL FAST TRACK ALL APPLICATIONS BUT ONLY FOR 38 OCCUPATIONS

On November 28, 2008 the Federal Immigration Minister Jason Kenney announced new laws to Canada’s immigration system. It has been no secret that Canada’s Immigration system has been in a backlog for the last decade given how easy it was to qualify. Applicants did not require a job offer or a relative and the inventory at the embassies around the world kept on growing and growing. The news laws announced today are intended to reduce the backlog of existing files and to fast track new applications in accordance with the labour market. According to Mr. Kenney, Canada is still on target to welcome approximately 250,000 new immigrants this year.

However, the new laws have come with a price. Not every applicant will be able to qualify as the minister has limited the occupations to 38 designated positions. As well, the minister has made his laws retroactive to the Federal Budget Bill of February 27, 2008.

It should be noted that applicants still do not require a job offer or relative to qualify. If an applicant has at least one year of work experience in one of the 38 occupations then they are eligible to apply. As well, it is important to note that applicants with job offers are not affected by the new laws and applicants who are applying via a provincial program (for example , the H1B fast track stream in Alberta or family sponsorship of Alberta, Saskatchewan, Manitoba) are not affected by the new laws.

HOW IT WORKS

Applicants who have filed their applications prior to February 27, 2008 will be under the old laws and in the so-called backlog. The new laws will not affect them and hopefully visa officers will have more time to process their cases. Applicants in the USA with applications at local Canadian Consulates in the USA will be processed in about one year.

Applicants who have filed their applications after February 27, 2008 will be governed by the new laws. If an application is already in process and does not have a job offer and is not within one of the 38 occupations will have their applications returned.

Applicants who have filed after February 27, 2008 and have at least one year of work experience in one of the 38 occupations (and meet the other requirements of the regulations) will continue to be processed. According to Mr. Kenney the goal is to process these applications in 6 -12 months.

Applicants who file the applications now or after the November 28, 2008 announcement will of course be governed by the new laws and must have at least one year of work experience in one of the 38 occupations. According to Mr. Kenney the goal is to process these applications in 6 -12 months.

The 38 occupations are considered high-demand in Canada and are in the health, skilled trades, financial sector and resource extractions. The 38 occupations include:

Financial Managers
Computer Specialists
Restaurant/Food Service Managers
Accountants and Auditors
Engineers
Physicians
Physiotherapists
Nurses
Medical Radiation Technologists
Licensed Practical Nurses
Teaching Instructors
Chefs
Cooks
Electricians
Plumbers
Welders

WHO IS NOT AFFECTED BY THE NEW LAWS

The new laws do not apply to:

1. An applicant who has been working or studying in Canada for at least one year
2. Applicants with job offers in Canada
3. Applicants who are applying via a provincial program (for example , the H1B fast track stream in Alberta or family sponsorship of Alberta, Saskatchewan, Manitoba)

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

EXORBITANT RECRUITMENT FEES SHOULD RAISE A RED FLAG

Q. I am writing on behalf of a friend who is simply too afraid to talk to anyone about her predicament. A few years ago she was working in Dubai and paid $5000 to a recruitment agency there to help her find an employer in Canada to work as a caregiver. The agency in Dubai apparently has a contact office in Canada who found a Canadian employer to sponsor her. My friend arrived in Canada in January 2007 to work under the caregiver program. The problem is that she has never in fact worked as a caregiver. She has never even been in her employer’s house. Her work permit states that she is a caregiver and her pay stubs issued to her by the employer state she has earned an income as a caregiver but she has been working in a factory for nearly two years now. The Canadian agency has set up this arrangement, has held on to her passport and has been issuing tax documents in the name of the employer. Is this legal? Will my friend be deported if she tells immigration the whole truth? Does she still qualify under the live in caregiver program?

A. In life, when something does not sound right, it usually isn’t! I suspect from your letter that you feel something is not kosher here and you are correct that it is illegal. Your friend has to make a decision quickly on what she wants to do. Neither route will be easy. If she informs immigration about the fact that she has been employed illegally, then she may face removal in Canada. Whether she is removed or not, it seems though that your friend does not meet the live in caregiver class as she cannot ever meet the 24 month rule of employment as a caregiver. If she continues with the sham, any application she submits may be regarded as misrepresentation.

However, in my opinion, the more interesting dilemma is how the government should stop these recruitment companies from acting in such a manner. In most of Canada, it is illegal for a recruitment agency to charge a fee to an employee to find an employer. The cost must be charged to the employer. However, we all know that this does not happen and the exorbitant fees that your friend paid are a sign that this agency is acting in an illegal way. Many agencies will mask these fees and say that the fees were for consulting or translation rather than matchmaking but we all know that is also a sham. Further, why is the agency seizing your friend’s passport? No agency has the right to take a person’s original passport. As well, it seems that the Canadian employer is going along with this fiasco in order to get some sort of compensation.

Finally, let’s not forget the old saying, where there is smoke there is fire. If the agency is charging such exorbitant fees, in all likelihood there is some underlying immigration issue that increases the vulnerability of the worker. In this case, I believe that is the case since the agency has taken your friend’s passport. In many cases, the agency will deliberately provide false information on an application to use as leverage against the employer or else they will report them to immigration. Your friend should not be afraid to talk to an immigration lawyer to discuss her options.

Q. I entered Canada as a permanent resident in the year 2000. Shortly after arrival I divorced my husband in Canada. Last year I met a person through the internet and we married last month in the Philippines. I have now been informed that he was married before but never obtained an annulment. How do I go about sponsoring him to Canada?

A. From the brief details you provided, I do not believe that you can sponsor him at this time. He does not seem to fall under the family class category. Firstly, I am confused as to how you were able to marry him in the Philippines if you were a permanent resident at the time of your divorce. My understanding is since there is no divorce in the Philippines, your foreign divorce is only valid if you were a Canadian citizen at the time of divorce. Secondly, if your “spouse” was married to another woman at the time of your wedding, then that marriage is void. It did not exist in the eyes of the law. Putting aside the fact that your “spouse” may have committed bigamy it does not seem that a spousal sponsorship application will go far. I suggest that you look into the less common application of “conjugal partner”.

Q. I am a visitor in Canada and I am married to a Canadian citizen. We are in the process of completing the inland sponsorship application but I do not want to wait a year to work. I was told that I can apply now for an open work permit and obtain one in a month. Is that true?

A. Yes and no. When you apply for your spousal application you can include an open work permit application but it will not be issued until you are approved in principle. That can take about 7 months. If you are asking whether you can obtain an open work permit now , before sponsorship approval, then the answer is no.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

H1B VISA HOLDERS TO OBTAIN CANADIAN PERMANENT RESIDENCE IN SIX MONTHS

With the political turmoil in the United States and Canada and with the upcoming elections in both countries, the province of Alberta, Canada has recently announced another fast-track immigration program that is geared to recruiting temporary workers in the United States to Canada. According to Alberta government officials, the new program is finalizing applications in as little as six months.

The province of Alberta has a population of about 3.3 million and is experiencing explosive population and economic growth particularly in oil and natural gas production. With its explaining cities and low unemployment rate, it is a haven for skilled workers who have the North American work experience, know the culture and speak English.

The most attractive part of the new program is that no job offer from an employer is required and no sponsor is required. An applicant can qualify on their own merit and permanent residence will be obtained in less than a year. The applicant is able to include their spouses, common law partners and dependant children on their application thus obtaining residence for the whole family at once.

The above program is a golden ticket to those who are interested in immigrating to Canada mainly due to the fact that the Federal Immigration Minister has recently announced upcoming changes to the Federal Immigration laws. As discussed in early articles, the upcoming changes can impact thousands of cases and close the doors on many would be immigrants if they do not fall within the parameters of the “occupational list” that the minister is proposing to reveal by the end of the year. To be safe, the solution is therefore to apply to Alberta which will not be altered by any election results. The Alberta government has a treaty with the Federal government to select its own immigrant on what ever basis they deem fit. Changes to the federal system will not affect those who apply through a province.

How does one qualify for Alberta’s Strategic US Visa Category?

1. Applicants must be currently working in the USA in one of the following categories (H-1B, H1-B1, H-1C, E-3).
2. Applicants must have a minimum of one year of work experience in the USA in one of the categories above
3. The applicant’s occupation must be in demand in Alberta
4. No job offer from an Alberta employer is required*
5. There is no requirement that a relative be living in Alberta.*

*Applicant’s with job offers or relatives in Canada are able to apply under the separate and equally fast Skilled Stream or Family Stream.

Who does not qualify for Alberta’s Strategic US Visa Category?

Applicants who are refugee claimants or entered the USA as visitors and overstayed do not qualify. Applicants in these situations are able to apply under the federal immigration program.

How does one apply for the Alberta’s Strategic US Visa Category?

Currently, the application forms are not available on line. Applicants who feel they are qualified must first be pre-approved.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

NEW FAST TRACK CATEGORY FOR WORKERS AND STUDENTS

The Federal government has recently announced a new fast track program that should be up and running in October 2008. The program is geared to grant permanent residence on an expedited basis to those who have studied and worked in Canada.

In the past, such applicants were required to apply outside of Canada (even if they were physically in Canada) at a Canadian Consulate abroad. The problem with doing so was that it took longer and that some applicants from visa requiring countries were not able to enter the USA if an interview was required. The result would then be to have the file transferred (if permitted) to the applicant’s home country for further processing. The current “Canadian Experience” program will eliminate all that in the sense that applicants will be able to remain in Canada and will be assessed on a PASS / FAIL basis – not on the point system to which all other skilled workers are assessed.

It’s expected that 12,000 to 18,000 of such visas will be issued in the first year.

Who is eligible?

There are two types of categories:

A. Applicants must have two years of legal work experience in Canada or
Foreign students must have completed a program of study lasting at least two years at a Canadian university or college and have one year of work experience.
B. All applicants must have come to Canada to work or study, have been lawfully admitted to Canada, and have temporary resident status in Canada at the time of application.
C. Applicants who are already in the process of receiving their permanent resident status through other avenues do not qualify.

While many are applauding the government for creating the new program there are many who critic it. Firstly, as many students are aware, it is not easy to obtain a student visa to Canada. One of the key components to obtain a student visa is to demonstrate that the applicant will leave Canada after their period of study. So with this new program (which allows students to remain in Canada after their studies) how is an applicant going to convince the officer abroad that he will he return home? Why would he/she want to return home with this relatively easy new program granting permanent residence?

Secondly, it should be noted that an applicants must have work experience in a skilled occupation. Applicant’s who have worked in Canada in low skilled occupations do not qualify.

It is obvious that the goal by Canada Immigration is to compete for the best immigrants on an international level. We will have to wait and see if applicants take advantage of the program.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

SAME SEX RELATIONSHIPS GIVEN EQUAL TREATMENT IN CANADA

Q. I am a permanent resident and I want to sponsor my spouse. We are in a same relationship that started back in the Philippines. As our union is not recognized in our home country, is our relationship valid in Canada even if we only hold Philippine citizenship? If we decide to marry in Canada will the marriage be valid in Canada and/or the Philippines? And finally, if I want to sponsor her for permanent residence in Canada what is the difference between filing the application inside vs. outside of Canada?

A. You have asked several questions, so let’s take this one step at a time and break down the issues. Firstly, same sex relationships are valid in Ontario and are given equal treatment regardless of your citizenship. A same sex couple can marry and obtain a marriage certificate just like a heterosexual couple. As this is not possible to be done in the Philippines, I do not believe that marriage will be recognized in the Philippines. Secondly, if you are thinking about sponsoring your spouse then you are correct in stating that you have the option of filing the application inside or outside of Canada. As an aside, it should be noted that you are able to sponsor your spouse as a common law partner if you wish and if you qualify. In other words, you do no not have to marry and the application can be filed in the exact same way under the common law partner category. A common law partner is someone who is in a “marriage like” relationship with another person and living together for at least one continuous year.

There are some key differences to filing a spousal application from inside vs. outside of Canada. If a person files the application outside of Canada if does not necessarily mean that the applicant must leave Canada. In other words, it is possible for an applicant to remain physically in Canada while the application abroad is in process. However, the applicant must be aware that since the file is abroad then if there is an interview scheduled they will require you to attend the interview in that country. A sponsorship application filed abroad generally is faster and if refused there is an automatic right of appeal.

If an application is filed inside of Canada, the applicant will in most cases obtain visitor extensions time after time until the end of application. Applications from inside of Canada take longer and have no automatic right to appeal. However, many decide to use the inside of Canada application to ensure that the applicant can remain in Canada and no traveling is required if an interview is convoked.

Q. I’m a registered nurse living in New Jersey. I want to file an application to immigrate to Canada but do not want to apply alone. I have a same sex partner who is in the USA with no status. Can I include him on the application? Will the fact that he is illegal be a problem? Will they scrutinize our relationship?

A. You are able to include your partner on the application if you have lived together for over one year. You will of course need to show proof of your relationship. The fact that he is out of status should not be a problem. From the information given, you will be the main applicant and he is the dependant. It should work out fine.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

BIGAMOUS MARRIAGE MAY SAVE SPONSOR FROM DEPORTATION

Q. I am a Canadian Citizen and married to a woman in the Philippines. We have two children together. I tried to sponsor my wife but the embassy has refused her case on the basis that she was not free to marry at the time we married. As well, they are saying that I did not declare her upon landing. They are permitting my children to come but how can they come without the mother? What can be done to have my wife enter Canada?

A. It seems that the marriage between you two is not valid in law as your wife was still married to someone else. It is advisable to appeal the decision if you can tackle the validity of the marriage. Another strategy may be to look and see whether a “common law partner” application may work for you. Despite the above, it also seems that you misrepresented yourself upon landing if you did not declare the wife. However, this is an interesting scenario. If your wife was still married to someone else at the time of your marriage, how can Canada Immigration accuse you of misrepresentation since your marriage was not legal. She was not your wife, right? You can probably dodge the bullet on the misrepresentation issue. However, to rectify the first issue look at the common law scenario or dissolve the marriage and then marry again.

Q. I entered Canada on the live in caregiver program in 2007. In early 2008, I got a call from my brother in the Philippines informing me that our mother was ill. I had to leave Canada immediately. Before I left Canada my work permit was about to expire and I did not have enough time to send an extension. While in the Philippines, I visited the Canadian Embassy for a re-entry visa and work permit. I was granted a visa to re-enter and a work permit to work as a babysitter. Is this going to be a problem when I apply for permanent residence next year?

A. Yes, it could be an issue. A babysitter is not a live in caregiver. I would have to see the work permit issued but if the embassy issued a work permit that is outside of the live in caregiver program then you have a problem. According to the immigration manual, work permits must be renewed at the Case Processing Centre in Vegreville.

Q. I am the owner of a bakery in Canada. I work long hours and it would be great to have a trusted relative come over to Canada to help me and to manage the store while I am on vacation and on weekends. My relative lives in California and has no status in USA. He is educated and has work experience but is afraid to do anything because he is afraid of being deported.

A. It seems possible that he can immigrate to Canada with an approved job offer from you. It is common for cash type businesses to want trusted relatives to manage their stores and an approved offer from you will expedite the application. With his background he should definitely explore the possibility to apply for residence. A case of this type can take only one year to process.

Q. I am a Canadian Citizen. I want to sponsor my husband. He is from the Middle East and has been in Canada for over nine years. He claimed refugee status years ago and was denied. He moved to Toronto from Montreal and I suspect that immigration does not know where he is. We married in early 2007 and I do not want him to leave. If I sponsor him from inside of Canada will he be able to remain throughout the duration?

A. From the limited details, I think your first plan of attack is to find out what his immigration status is in Canada. If he has been in Canada for nine years and is a failed refugee claimant, it is likely that immigration has been looking for him and has sent him interview notices. If so, and if enforcement proceedings have begun then it is likely that he is not even eligible to file the application from inside of Canada. Before you spend time and money on filing the application inside, find out if he is eligible. If not, then your only option will be to send the application outside of Canada (which is a much faster application).

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

SPOUSE IN USA WITH NO STATUS CAN STILL BE SPONSORED BY CANADIAN CITIZEN

Q. I am a Canadian Citizen. I live part of the year in Canada and part of the year in USA. I married a man in Las Vegas last month. I want to sponsor him to Canada but the problem is that he has no status in USA. He entered the USA many years ago as a crew ship worker but jumped ship. I do not know what to do to legalize his status and to have him immigrate to Canada.

A. You cannot legalize his status in USA. He has been illegal for years and it is unlikely he will be able to adjust his status from within the USA. The good news is that you can sponsor him to Canada. As you are a Canadian Citizen, regardless of whether you live in Canada, you have the right to sponsor him. If he has no legal status in USA, it still can be done and as long as the marriage is genuine, it seems that there are no bars to having it approved.

Q. I applied for permanent residence in Canada under the provincial nominee program (PNP) via Manitoba. I just received a letter refusing my application. I thought that Manitoba needed skilled workers. Why was I refused? I do not have any relatives or job offer.

A. In an earlier article we titled “ Do PNP’s Really Work?”, we discussed what is required to be successful under a PNP. Many have the mistaken impression that it is simply a faster way to get to Canada. This is not true. While the timing is faster, each province has a quota of applicants that they approve and most provinces need you to have a guaranteed job offer and/or a relative to help support you. If you have neither, then the federal system would be obsolete.

IMMIGRATION UPDATE: NEW IMMIGRATION LAW PASSES SENATE VOTE

This past week, the Canadian Senate voted in favour of C-50 – the bill that includes changing the immigration laws in this country. The new laws will give the Federal Minister sweeping powers to basically do what she wants and to prioritize the economic category in accordance with the labour market. The next step now will be for the Federal Minister to go from province to province and to hold meetings with relevant stakeholders on what this country needs. For example, if the provinces declare that nurses are in great shortage, it is then expected that the visa offices abroad will have to manually sift through their inventory and pluck out the nursing applicants. This is obviously going to be painstaking and tedious. We will have to wait and see which categories will be prioritized and what the details of the new laws will be.

Until then, it seems obvious that some visa posts are putting some applications on hold in anticipation of the new laws. In my opinion, this is quite unfair and a) no laws have been announced to amend the status quo and b) applicants have paid the government fee which allows them to have their applications processed. The good news is that some visa posts (i.e Manila) is continuing to receive and process new applications but again, we will have to wait and see what will transpire once the new regulations are announced.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

NEW LAWS, NEW WORK PERMITS AND PR CARD RENEWAL

This week we are highlighting four specific areas of immigration that have recently been amended:

1. NEW IMMIGRATION CHANGES

As we discussed in earlier articles, the Federal Minister is proposing new changes to the immigration system in the hope of expediting applications and reducing the backlog. The proposed reforms would empower the government to limit the number of applications accepted for processing and to prioritize skilled labour categories decided by the immigration minister. While not official yet, from the information leaked by the media, instructions will apply to:

• applications for permanent residence made outside Canada, except refugees.
• Family Class sponsorship applications.
• applications for permanent residence made inside Canada, except refugees
• applications for temporary residence status made inside Canada
• applications for H&C made outside Canada (but not made inside Canada).

The Minister would be able to:

• establish categories of applications to be processed
• determine the order in which the applications should be processed
• fix a limit on the number to be processed
• provide rules for repeat applications

2. MINIMUM INCOME FOR AN EMPLOYER TO HIRE A LIVE IN CAREGIVER

It appears that several nanny agencies are promoting work in Canada for live in caregivers and promising to find Canadian employers to hire them. That may be fine, but it also appears that the employers are not aware of the amount of income they need to earn to hire the caregiver. The embassy will surely request proof of declare income and it would surely save everyone the expense and heartache to know the amount required ahead of time. The formula is as follows:

Low Income Cut Off level (depending on family size) + wages of caregiver (approximately $20,000).

3. REPLACEMENT OF THE “MAPLE LEAF” / “ PERMANENT RESIDENT CARD

Permanent Resident cards were first introduced in 2002 and are valid for five years. In the past, in order to renew a PR card, the applicant had to surrender the old one and wait months to obtain the replaced/extended one. This often caused problems for many who wanted to travel abroad in the interim.

Effective April 21, 2008, permanent residents applying to renew their PR card:

may hold on to their still valid PR card and return it to a Citizenship and Immigration Canada officer when they pick up their new card;
should return it with the application for a new card, if the card has already expired.
In all cases, a replacement card will not be issued until the previous card is returned or otherwise accounted for.

4. THREE YEAR POST GRADUATE WORK PERMITS

Effective immediately, international students who graduate from eligible programs at Canadian post-secondary institutions would be able to obtain an open work permit under the Post-Graduation Work Permit Program, with no restrictions on the type of employment and no requirement for a job offer. The duration of the work permit has been extended to three years across the country. In the past, the program only allowed international students to work for one or two years, depending on location.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

STATUS OF ILLEGAL IMMIGRANTS IN LIMBO

Q. I am an illegal immigrant in San Francisco. I was working as an engineer for many years in Qatar until I came to the USA to visit my ailing father. That was three years ago and he has passed on. I resigned from my job in the Middle East and I have not been back to the Philippines for over a decade. I do not know where to go and my status in USA has expired. I heard that there is going to be an amnesty for illegal workers but I heard that story for two years now that I do not feel that will ever occur. Can I obtain a visa to Canada?

A. One of the hottest immigration topics in Canada and USA the last few weeks has been the state of illegal immigrants in each country. In the USA, the current immigration bill includes provisions which permit illegal immigrants to obtain work permits and then permanent residence. While in theory the principle is practical, the logistics of same are not. As many are not aware, an illegal immigrant must fulfil certain criteria and then apply for the visa from their home country. In other words, those who have been illegal for several years now must return to their country of origin and be processed for permanent residence. It will be interesting to see how many would take advantage of these strict provisions if they become law. However, yhe current USA immigration bill is not even close to being passed and the senate is still in a deadlock and analysts have said that it will not even pass to the House of Representatives in the current year or even after.

In a similar fashion, the status in illegal immigrants are also in a state of uncertainty in Canada. The Canadian Federal Government has not mentioned any laws regarding an amnesty but recently they have halted deportations and have been in discussions regarding the shortage of workers in the construction and hospitality industries.

In my opinion, the lack of initiative of both governments dictate that you continue to process an application that you are qualified for now. Clients repeatedly tell me that the worse thing is the uncertainty. As such, as it seems that you qualify now, I suggest that an application for permanent residence be filed as soon as possible.

It should also be mentioned that the USA government is looking into changing its criteria on how one can immigrate. For the last few decades, permanent residence was obtained via employment or family class. Now, serious consideration is being sought to change it to a merit based system whereby applicants will be assessed points for their education, work experience, etc….Sounds familiar? The merit based system (or point system) is the system Canada has been using since the early 1990’s. It seems that after all these years the USA government is now turning to Canada to learn how good the immigration system and universal health care system work north of the border.

Q. My brother is over 30 years old but has been living with my parents his whole life. I want to sponsor my parents but do not want to leave him behind. He is an adult but has developmental delay. I am afraid that he will not pass the medical exam. If he doesn’t pass, what happens to my parents’ sponsorship?

A. A medical exam is required by all applicants who apply for immigration to Canada. If it is determined that a person has a disease that is dangerous to others or has a condition that will cause an excessive demand on Canada’s health services, the applicant can be refused for medical inadmissibility. Further, your brother must be determined to be a dependant child in order to included on the application. If he is not a dependant child, no medical is required and your parents’ application will likely be approved (assuming you meet the financial eligibility criteria for sponsors). It sounds like your brother may be able to meet the definition of dependency and will likely need to do a medical. You mentioned that he is the last one left in the Philippines. Therefore, if he unfortunately gets refused for medical reasons, it is suggested that you appeal immediately on humanitarian and compassionate grounds.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com

By Attorney Henry Moyal

INELIGIBILITY UNDER THE LIVE IN CAREGIVER PROGRAM CAN BE OVERCOME

Q. I need some assistance regarding my status in Canada and my work permit papers. I arrived in Canada directly from Israel to work as a live in caregiver. As soon as I arrived, my employer changed his mind and released me. It then took me over one year to find a new employer. I have been with my second employer for nearly two years and I want to apply for permanent residence. According to my calculation, I am short about one month. The main reason was because it took so long to get approval from Human Resources and then a further delay in obtaining the actual work permit. Can I calculate the time from the time we received the HRDC validation? If not, is it worth it to apply for permanent residence? If no, what do I do?

A. Unfortunately, you cannot count days of work if you did not hold a valid work authorization for that specific employer. Yes, it does take time to get HRDC validation (about 2 -3 weeks) and then another delay (4 -6 weeks) to get the actual work permit but unfortunately Canada Immigration will not give you credit for time worked outside the periods authorized on a work permit. I believe this is a fault in the LIC program and hopefully will be rectified soon.

For now, we are stuck with the rules in place. As such, immigration officers have a statutory obligation to play by the rules and to calculate 24 months to be eligible under the live in caregiver class. If you are short one month (and you are sure of that) then it is a waste of time (and money) to apply under the live in caregiver class. You will no doubt we refused as the officers have no discretion. You will need to review your personal circumstances to determine what your next best strategy will be. A few options are to be sponsored by another, or to apply for permanent residence under a different category or you can even apply to re-enter the live in caregiver program. To do so, you will need to obtain a brand new visa from a Canadian Consulate or Embassy outside of Canada and then re-enter and start the program all over again. A word of caution….it is not easy to obtain.

Q. I arrived in Canada as a live in caregiver and worked for the same employer for nearly four years. I applied for permanent residence after the second year and I was approved in principle and then I obtained an open work permit. I never received my permanent residence because my husband was sick and I was refused for his medical inadmissibility. He has recently passed away and I have no reason to return home. I was to stay in Canada but I am afraid that immigration will deport me. My work permit is to expire soon and I have a feeling it will not be extended. I do not want to be illegal. What are my options?

A. From the limited information provided, it appears your case is not as complicated as you may think. It sounds like you already have a work permit and it sounds like you clearly qualified for the live in caregiver class (your husband’s illness notwithstanding) before. Therefore, it would be a good idea to explore filing a new application under the live in caregiver class. There is no rule stating you cannot apply again. It seems, albeit sadly, that you have satisfied the grounds of refusal the first time and now you can re-apply and be granted permanent residence. In the interim, obtain a new HRDC validation and obtain a new work.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com