By Attorney Henry Moyal

NEW SWEEPING IMMIGRATION LAWS TO BE ANNOUNCED

Once again, the Canadian Immigration department is about to announce news immigration laws. At the time of print, the official details were sketchy as the Federal Immigration Minister refused to divulge specifics until this week but her comments have indicated that the changes will affect skilled workers, family sponsorships and workers. It also seems that the processing times will be faster. “It is good news for newcomers. It’s going to get them, their family and their co-workers faster to Canada”, she stated.

As well, the minister reiterated that the primary concern for the changes was to eliminate the backlog of 800,000 applications that are currently in inventory at missions abroad. This is obviously great news as applicants have been waiting for years to have their applications processed.

However, we will have to wait and see if the changes will concentrate on processing economic class applications from skilled workers, entrepreneurs and investors at the expense of family reunification applications, which produce less than 30 per cent of the 250,000 newcomers to Canada each year.

Another concern is that the changes may concentrate too much on foreign workers who eventually cannot qualify for permanent residence. Currently, the only categories of workers that can automatically apply for permanent residence are live in caregivers. Other low skilled workers (such as customer service, cashiers, and housekeepers) who are being recruited to cities in Alberta, for example have little chance of using that work experience towards permanent residence. The current independent category requires applicants to have work experience in skilled occupations that require a college or university degree.

So time will tell and we will see if the minister will try to strengthen Canada and continue the “nation-building” focus of immigration policy or if the minister will create a pool of unqualified applicants who must return to their home country after their work permit expires.

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

OVERSTAYING VISA IS NOT A CRIMINAL OFFENCE

Q. I am trying to determine what my best options are with respect to becoming a permanent resident. I am a skilled nurse and I left the Philippines about four years back. I had both a USA and Canadian visitor visa. I first went to the USA and stayed for nearly two years. I overstayed my visitor status and then entered Canada. I have now been illegal in Canada for almost the same amount of time. I know it will take time to process my application but I want to be sure that it will a) succeed and b) that my overstay will not be deemed a criminal offence. I have heard that if a person has committed a crime then they are ineligible to apply for permanent residence.

A. In general, if an applicant has a university education and years of work experience they are on the right path. More information would need to be obtained regarding your dates of employment but it appears that you are qualified. Secondly, I do not see any provision in the regulations that makes an overstay a criminal offence. You are correct that a criminal offence can render a person inadmissible but an overstay will not show up on a routine criminal background check. I looked at the relevant USA provisions ( INA, Title 8) and IRPA. My understanding is that it is not a criminal offence to overstay one’s visit, though it is a criminal offence not to depart when you get a final order of removal (i.e. s. 1253, Title 8).

Q. I want to apply for permanent residence but want to include my children who are now residing in Singapore. Is there an age limit?

A. A principal applicant can include his/her spouse, common law spouse and all dependant children. A dependant child is either:

▪ a child who is under 22 and unmarried or
▪ a dependant child who is unmarried and over 22 but has been a continuous full time student from the age of 22 to end of application.

Q. I have graduated from a reputable university with a Bachelor and Master degree. I worked during the summers (4 months at a time) as a chemist for over one year combined as required by the regulations. I filed the application with the help of a consultant and recently I received a refusal letter stating that I did not have the minimum of one year of work experience. But I do! As well, how can they refuse the case without even asking for more information or calling me for an interview?

A. I must respectfully disagree with you. You do not appear to be qualified. One must know and read the fine details of all the regulations. It is not so black and white and for that reason it is crucial for applicants to hire a professional lawyer (not a consultant) who is qualified in immigration matters. In brief, the law requires that an applicant must have at least one year of continuous work experience in order to qualify. You don’t. Therefore, the embassy has no obligation to call you or convoke you for interview.

Q. I am in a common law relationship with a Canadian Citizen. We have lived together for over two years. The problem is that I am still legally married to my husband. I do not know where he is so how can I divorce him? My partner wants to sponsor me but how can he if I cannot divorce and an annulment seems unlikely.

A. He can still sponsor you as a common law partner. You do not have to divorce. You can still file the application if you are married as long as you can prove that you have separated from the first husband for at least a year.

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

PERMANENT RESIDENCE MAY BE OBTAINED IN SIX MONTHS

Q. I entered Canada as a visitor recently and this peaceful, rich country has really impressed me. It is my first time outside the Philippines and although I have a steady and good earning job, I am thinking about make a life change and moving to Canada. I have many relatives in Canada and I work for a multinational corporation that has a branch in Canada. How long do you think it will take to immigrate? I cannot remain as a visitor for long and must return home so time is important. How long would it take to become a permanent resident of Canada?

A. We recently published an article on the ten most popular questions. Your question on processing time could have easily made that list. In other words, the question of “ how long does it take?….” is a big concern for many and a very common question. The answer however is not that simple. Processing times depend on several factors including place of processing, type of application, backlog at the embassy and proper completion of application.

While many are opposed to the immigration system in the USA, in my opinion the quota system in the USA is a little of a relief to applicants who are seeking to apply in a specific category. Applicants in the USA wait to wait for their priority number and applicants know ahead of time of how it will take (even if it is years). Canada does not have a quota system per se and it is unknown how many applicants are applying on a daily basis which obviously increases inventory at a particular embassy.

However, a few facts are clear:

1. Applications that are filed in the jurisdiction of the USA are processed much faster than in Manila.
2. Applications in the family class are processed faster than skilled worker applications
3. Applications that are filed with deficient documents or errors will be returned and delayed

Other than that, no one can determine with any scientific certainly of exactly how long an application will take. For example, we recently obtained visas for an applicant residing in the Philippines within six months. The six month clock started on the day the application was sent by courier to the date the visas were issued. Quite exceptional. In this particular case, there was no interview. In other cases, clients can wait much longer and face an interview. Having to attend an interview (which is determined by the visa officer) can delay a case as an applicant must wait in queue.

Q. How does Canada treat same-sex relationships? We are a same sex couple and we are interested in immigration to Canada.

A. In general, Canada permits same sex relationships the same as heterosexual relationships. You have not indicated if you are being sponsored or whether you are both non-Canadians. I will deal with both scenarios. If one of you is a Canadian Citizen or permanent resident, then that person (the sponsor) can marry you (in a jurisdiction that permits it) and then file an application on your behalf. The same sex marriage is acceptable in Canada. If you do not wish to marry but have lived together for one year, then the sponsor can sponsor you as a common law partner.

If both of you are non-Canadian citizens/residents then one of you must qualify as a skilled worker. If so, the other partner will be a dependant and included on your application on the condition that you are married or common law partners.

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

TEN MOST COMMON IMMIGRATION QUESTIONS OF 2007

Another year has gone by and it is the time to reflect on the last twelve months. Thank you to all our clients and avid readers of this column. There has been an abundance of feedback and questions, whether by phone, mail or email which has illustrated how cumbersome the immigration laws can be and how difficult it is sometimes to navigate through the maze of immigration regulations. To end the year, we have compiled the top ten most common inquiries:

10. How can my brother/sister in the Philippines immigrate to Canada? I can support them financially. They have a degree and education.

An applicant who has a bachelor degree and several years of work experience in a skilled occupation is able to qualify for immigration to Canada. They do not require a relative in Canada nor a job offer. They can immigrate on their own credentials.

9. I became a permanent resident of Canada over 6 years ago. I stayed in Canada for a short time and then left. Can I return? Am I still a permanent resident?

A permanent resident of Canada always remains a PR until one of two things occur: either they voluntarily surrender the PR status or a final decision/judge has taken away your PR status. Therefore, you are entitled to enter Canada as a PR but if there is a question regarding your residency requirement you may be faced with several questions and possibly an admissibility hearing to determine if you did maintain residence. Remember, you must have been resident for 730 days out of every five year period. If you have not you can argue humanitarian and compassionate grounds.

8. I am a live in caregiver. I did not work for the requisite 24 months. I am short five weeks. Can I still apply?

You cannot apply under the live in caregiver class as you do not appear to meet the statutory requirements. Best to apply under humanitarian and compassionate grounds.

7. I am a Canadian Citizen and living in the USA. How do I sponsor my wife. We married in the USA and I am outside of Canada?

As a Canadian you can remain in the USA and still qualify as a sponsor on the condition that you return to Canada upon issuance of spouse’s immigrant visa

6. I entered Canada as an immigrant as a single person but I was really married. I did not inform the immigration office that I was married because my husband was living abroad?

You have misrepresented yourself. Under Canadian laws you must declare all dependants whether accompanying you or not.

5. I am alone in Canada, can I sponsor my cousin?

If you have no relatives in Canada, no spouse, and parents are deceased it is possible that you can sponsor any other blood relative.

4. I want to sponsor my parent but I am not employed.

To sponsor parents, sponsors must earn sufficient income (depending on family size) to be eligible to sponsor parents.

3. I live in the USA. I am a Canadian but I married a man who was already married in the Philippines.

If your husband’s first marriage was not dissolved, then your marriage to him is null and void. He has also committed bigamy. Best to proceed with caution and obtain legal advice before submitting an immigration application.

2. I sponsored my wife and the immigration officer refused the application accusing us of committing a marriage of convenience. Should I appeal?

You have the right to appeal within 30 days or if you are able to submit a stronger application you may want to waive the appeal and re-apply from scratch.

1.We have no status in USA. We entered over one year ago and our visa has expired. Can we still apply to immigrate to Canada?

Yes, if you qualify under the regulations and have the requisite education and work experience then it is possible to apply even if you are out of status in USA.

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

JOB OFFER NOT REQUIRED IN ORDER TO QUALIFY FOR CANADIAN IMMIGRATION

Q. I have lived in Southern California for over 4 years. I entered USA legally as a visitor. I then found an employer to sponsor me for my H1B but it was filed too late. I am actually still working for that employer but without a visa. I was told that I can apply for a student visa (F1) but since I am out of status I am not too confident about my chances. I have an aunt in Canada who is willing to help me immigrate to Canada. She is elderly and cannot support me. In addition, I do not have an employer in Canada to petition me. What do you think my chances are? I do not want to live as an illegal and it is taking a toll on our family.

A. I will answer the simple questions first. The fact that your aunt lives in Canada is already a bonus. She does not need to sign documents or provide any money to immigration so her income is not relevant. As long as you can prove your relationship you will automatically obtain the bonus points when it comes time to apply for immigration to Canada. Secondly, you do not need a Canadian job offer to apply for permanent residence. Many people make the mistake of thinking that they cannot immigrate to Canada if they do not have a job offer. No offer of employment is required in order to qualify. Applicants also have the misconception that they cannot work in Canada unless they have an offer of employment. This too is not true. As an immigrant of Canada, a permanent resident is able to work and live anywhere in Canada. They are not restricted to a specific employer (as with a work permit).

The more difficult question is now to determine if you qualify. You have not provided sufficient information for me to give an exact answer so I will try to answer in general. If you have graduated from a university and have at least four years of work experience and a strong command of English then you are definitely on the right track. As well, additional points are given if you are married to a spouse who is educated. The best way to assess a case is to forward a detailed resume.

Q. I am a Canadian Citizen but living in Arizona. I left Canada over ten years ago. Two years ago I married a man in the USA. The problem is that my husband has no status in USA and was married before. I want to bring him back to Canada but I am not sure he will obtain a visitor visa? Can I sponsor him from inside Canada or would it be better to sponsor him from the USA?

A. You have mentioned that your husband was married before. Did he dissolve the first marriage before he married you? If yes, then that is good and your marriage to him is valid. If not, he was still legally married to his first wife and therefore your marriage to him is not valid. If it is not valid but you have lived together for over one year, you can apply as common law partners.

The next issue is regarding the sponsorship. I doubt the Canadian Consulate will issue him a visitor visa when they will see he overstayed his USA visa, so entering Canada as a visitor is a long shot. Your best bet seems to sponsor him for permanent residence. He can remain in the USA while the application is in process.

Q. I arrived into the USA as a tourist. I had an employer who wanted to help and he filed for an H1B work permit. Unfortunately, it was denied. I then married a USA citizen but was refused as well as they suspected it was a marriage of convenience. I have some friends who immigrated to Canada and they are encouraging me to immigrate there. The problem is that I do not have any relatives or job offers in Canada. Can I just apply and walk into Canada?

A. You will first need to apply and then qualify and then obtain a visa before you starting walking across the border. In contract to USA immigration law, you do not need any job offers to qualify. You do not need any relatives to help you. I am assuming you are single. If so, and if you have a bachelor degree and at least four years of work experience you may qualify on your own.

Q. I have heard of conflicting opinions on whether I need to return to the Philippines to obtain my Canadian work permit. I have an offer of employment from a company in Vancouver but my consultant in USA is telling me that I need to return to the Philippines to obtain the visa. I did have an H1B in USA but it expired so I am out of status. The local Canadian Consulate is telling me something else.

A. The bigger issue after reading your email is the dangerous and perhaps illegal advice you are obtaining from a non-licenced Canadian consultant on Canadian immigration matters. Only qualified Canadian (licenced in Canada) lawyers are able to provide professional assistance on Canadian immigration matters. Any USA consultant or USA lawyer (although licenced in USA) are not qualified to provide Canadian immigration advice (regardless of any statements in their website). Regarding your work permit, if you can show you entered USA legally you are able to file it within the USA. Once obtained, you can enter Canada directly from USA.

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

CANADA CAN BE USED AS A GOOD PLAN B

Q. I entered the USA as a dependant of my parents. I am now a permanent resident of the USA. I did not inform my parents that I was actually married to my husband a short while before immigrating. As such, it is almost impossible for me now to petition my husband to the USA. We are now thinking of applying to the USA. Can we?

A. I do not see why not. It appears that you misrepresented yourself upon entering the USA but you have not misrepresented yourself to the Canadian government. Assuming your marriage is genuine and assuming you (or spouse) qualify as immigrants and assuming there are no criminal charges laid, it would be a good case.

Q. My aunt has been living in Canada for nearly two years. We have been renewing her status every six months and we understand that she will eventually be denied an extension. She is elderly and has been like a mother to me since I was a child. I know that she cannot be sponsored but what else can I do to have her remain in Canada permanently?

A. You are correct that you cannot sponsor her as she is not within the family class category. You are also correct that filing for an extension into the third year is risky. The only suggestion I can make is to file a permanent resident application on humanitarian and compassionate grounds as she has been a “surrogate mother” to you since you were a child and the fact she has no place to go. It is by no means a slam dunk of a case but certainly worth a try. It is important however that detailed documents and evidence pertinent to this type of application be submitted.

Q. I arrived into the USA as a tourist. I had an employer who wanted to help and he filed for an H1B work permit. Unfortunately, it was denied. I then married a USA citizen but was refused as well as they suspected it was a marriage of convenience. I have some friends who immigrated to Canada and they are encouraging me to immigrate there. The problem is that I do not have any relatives or job offers in Canada. Can I just apply and walk into Canada?

A. You will first need to apply and then qualify and then obtain a visa before you starting walking across the border. In contract to USA immigration law, you do not need any job offers to qualify. You do not need any relatives to help you. I am assuming you are single. If so, and if you have a bachelor degree and at least four years of work experience you may qualify on your own.

Q. I was refused an immigrant visa under the live in caregiver program. The reason was because my husband would not undergo a medical and would not cooperate. I was to divorce him. If I do, can I still remain in Canada and reapply under the caregiver program?

A. If you are in Canada legally on an open work permit and you have worked for 2 years in the first three years of arrival, then I suggest you file for a quick divorce from your spouse and then reapply under 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 fax, phone or email canada@moyal.com

By Attorney Henry Moyal

NEPHEWS CAN BE SPONSORED BUT ONLY IN RARE CASES

Q. I am trying to find any possible way to get my nephew to Canada. His father (my brother) abandoned the family home when he was a child and his mother recently lost her job. My husband and I send money on a regular basis to support them but would rather sponsor him to Canada. He only has a high school diploma and has been doing odd jobs the last few years. At the age of 23, I am well aware that he cannot be adopted and that he does not have a chance to be an independent immigrant. My classmate recently sponsored her niece to Canada and the immigrant visa was recently issued from the embassy. I am not sure how that was done but if you can think of any practical ways for my nephew it would be appreciated.

A. As soon as an applicant turns into an adult, the applicant must qualify on their own merit. In many cases, a relative in Canada can help add points to their case but it is not a sponsorship. Usually, a post secondary diploma or degree is required to qualify with some work experience. It does not seem like your nephew is qualified under that category. Another option available is to sponsor your nephew under the family class category. Please note however, that to qualify for that category a sponsor (the Canadian Citizen or Permanent Resident) must be practically “alone” in this world. In other words, if the sponsor is unmarried, alone and whose parents and grandparents are deceased and there is no one else to sponsor, then the Canadian can select any other relative regardless of age to sponsor. While I do not have all the facts of your friend’s case, it seems as if that is the manner the niece was able to immigrate under the family class. It is quite rare but becoming more and more popular as it is a law that many people are not aware of.

Q. I have already applied for permanent residence under the live in caregiver program. My work permit has already expired but I was told that I do not need to renew it until I obtain my permanent residence? Is that true? Also, I was recently informed by my employer that I will be released. I want to work for another employer. Do I need a new work permit or should I just wait for the permanent resident visa?

A. please read this carefully as it is important that you have complied with the requirements. It gets technical and errors can result in refusal of your permanent residence. As you may or may not know, you are only eligible to be a permanent resident under the live in caregiver program if you are the holder of a valid work permit. You have stated that you already applied for permanent residence. Did you apply for an open work permit at the same time? If not, you must apply for renewal of your current work permit immediately. If you did apply for an open work permit at the same time of the resident application, then you do not have to renew the current work permit as long as you remain working for the same employer. If you want to change employers, you must apply for a new work permit.

Q. I sponsored my wife to Canada but the application was denied. She was interviewed at the Canadian Embassy and was asked several personal questions about our relationship. I think my wife just got nervous as she has no experience being interviewed by anyone. Was I required to go with her? I thought the interview was only a routine matter and she was going to get a visa. Now, she has been refused and I am not sure what to do at this time.

A. Most of the time when the embassy convokes an applicant for interview in a spousal application, there is a definite purpose for it. In other words, they want to make sure the relationship is genuine and not a “marriage of convenience”. The onus is upon you to prove to immigration that the relationship is genuine and not vice-versa. If that means you need to travel with her, then that is up to you (but not required). Unfortunately, the application has already been refused but that does not mean it is over. You have a right to appeal within 30 days.

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

BIGAMY IS A CRIMINAL OFFENCE

Q. As you are aware, there is no divorce available in the Philippines. There is only annulment procedures which can be very time consuming, costly and unpredictable. I have a problem regarding my marital status. I was married to my high school sweetheart in 1995 in the Philippines. We separated in 1997 and he went to Saudi Arabia to work. I have not heard from him since that time. Shortly after, I married another man in 1999 and registered my marriage with the NSO. I am now separated from my second husband too. I am now in Canada and I am ready to file my application for permanent residence. I do not know what to do? Do I file a divorce from spouse number one or two? Do I tell immigration or should I keep on telling immigration that I am single?

A.Your last comment has really confused me. Are you saying that you have been informing Canada Immigration that you are single? I see several misrepresentations here that can result in a refusal of the application. The best advice I can provide in the limited space is to tell immigration the truth. If you do not, firstly, you are again misrepresenting yourself. And second, Canada Immigration will likely do a search with the NSO and find out anyway. If you have not filed your permanent residence application then there may be some hope for you. (If you already have, seek professional advice). However, there is a risk that you will be refused for committing bigamy. Even though the second marriage is void, bigamy is a criminal offence and can render you inadmissible to Canada even if the act was committed outside of Canada.

Q. I am living in San Francisco, California for the last 6 years. I originally arrived with a valid H1B visa but it was not renewed after the first three years. I have been out of status for three years now. Last year I married a woman in the USA. We want to immigrate to Canada but we have a few concerns. Firstly, do we need to return to the Philippines to file our application or can we file it while we are still living in USA? We do not mind returning to the Philippines as long as we have already filed the application. Secondly, my wife entered the USA a few years ago using a false document and assumed name. Will that cause a problem?

A. I will answer the easier question first. You can file the application while living in the USA. Depending on where you file the case and depending on whether you have an interview, you may need to travel to the visa office. If you do not mind returning to the Philippines, then you can travel with your spouse back home and then wait for visa processing. However, you can file the case now even if outside the Philippines. The bigger problem you face in my opinion is the fact that your spouse used a fake passport to gain entry. That is a criminal offence. If immigration department is aware of the details then the whole application may be refused. You have not stated if your marriage certificate was under her real name or assumed name. If it was under her real name, then immigration will wonder how she ever existed in the USA if she never obtained a visa to the country. You will need to strategize very carefully before submitting the file.

Q. I am married to a Canadian woman who has left Canada over a decade ago. We are both in New York and our children are all grown up. We often talk about immigrating to Canada to a more peaceful and quieter place. Do we file the application inside of Canada or here in New York? Which is faster?

A. If you enter Canada and have legal status in Canada then you have the option of filing the application inside the country. If you have legal status for at least one year in USA, you can file the application in USA for visa processing. The USA application is by far faster and recommended in most cases, if you qualify. Applications inside of Canada are taking a long time primarily due to the backlog of cases at the Case Processing Centre in Alberta.

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 APPLICATION UPDATE

Employer’s Income

This is a follow up article to the topic discussed a few months ago that touched upon sufficient income that an employer must earn in order to sponsor a live in caregiver. Since the publication of that article, a deluge of inquiries have been forthcoming detailing how employers are frustrated, bewildered and dismayed at the way the Canadian Embassy in Manila runs its business. In particular, employers are shocked to hear that their “high” income level is not sufficient to pay a caregiver at a minimum wage. Others are equally frustrated because years have passed from the time that the application was submitted and if they simply would have known from the start that they would not qualify then it would save the employer and worker aggravation, time and expenses.

Nothing can be more true. It is shocking to this writer that no policy has been in place to date that would give employers a hint of whether they would be able to satisfy the income criteria for sponsorship a caregiver. Again, the employer may feel they have sufficient income but has little knowledge of the income level guidelines that officer’s use. In brief, visa officers are currently using a formula that has been implemented for sponsoring parents. In other words, the income level takes into account family size and also previous sponsorships.

For example, a couple seeking to hire a caregiver for their three children must earn a minimum income for a family of five which is currently set at $43791. In addition, the expected wages of the caregiver must be added and is approximately $18500. The grand total then would be $62291.

Renewing Work Permits

Processing times to file for an extension of a work permit and visitor status have increased dramatically from one month to nearly 70 days. It is therefore suggested that applicants apply early.

Change of Employers

Incomplete applications are often returned by Citizenship and Immigration. It therefore crucial to be reminded that in order to change employers an applicant first must obtain a HRSDC validation and then file for a new work permit together with a signed contract.

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

OUT OF STATUS APPLICANTS STILL HAVE CHOICES

Q. I arrived in the USA approximately four years ago as a tourist. I have not extended my status and I am an overstay. My wife and children are in the Philippines. I am working in the USA as a driver but I am an engineer by profession. In fact, my wife and I met while we worked at the same engineering firm and we have the same amount of experience. I have some friends in Vancouver who has encouraged me to come to visit but I have doubts about obtaining a USA from here. I would be interested in immigrating to Canada but do not know how or whether I need to return to my home country to file the application.

A. In my opinion, you are unlikely to obtain a visitor visa to Canada at this time. The Canadian Consulate in USA will no doubt see that you have overstayed your USA visa, so they will think you will do the same in Canada. The better news for you is that you do not have to live in perpetual limbo. It is indeed possible to file the application in the Philippines and remain in the USA at the same time. It also appears that you and/or your spouse qualify as immigrants.

Q. I am married to a Canadian Citizen. We are living outside of Canada. Does my sponsor need to return to Canada to file the application? how long will it take? Can I enter Canada and file the application from inside the country?

A. Yes, your spouse can sponsor you either inside of Canada or outside. She does not need to return to Canada to file the application and we can file on her behalf at the local immigration processing centre. You have not stated if you have a visitor visa now to enter Canada. If you do, and if you enter , it is possible to apply from inside Canada but that process will take longer. On average, a spousal sponsorship from outside the country will take about 6 months and double that time if processed inside the country.

Q. I am a new graduate in nursing. I am single and have three sisters who are Canadian citizens. I want to apply as an immigrant. How do I go about that?

A. You must have a minimum of one year of full time work experience. That is the threshold to at least get yourself inside the door. While I do not have much information to assess your case, you need at least 1 year of work to even start. So without that you are not qualified as a skilled worker.

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

CANADA CAPITALIZES ON DELAY OF USA IMMIGRATION BILL

Q. I am currently living in Washington and have been living in the USA for over five years. I initially entered on a valid H1B work permit but it is no longer valid. I worked as an engineer but recently my employer did not want to follow through on my permanent residence? Can I come to Canada to work? How about to immigrate? My family and I do not want to return to the Philippines? What are my choices?

A. If you are able to find a Canadian employer who wishes to hire you, then you can enter on a work permit to Canada. This has been a very popular thing to do as the United States struggles with developing an immigration policy. The fact that the US immigration bill was recently defeated has provided many job opportunities in Canada. For example, earlier this week, Microsoft announced the opening of a software development centre in Vancouver after losing a fight to ease restrictions on the admission of foreign workers to the United States. It is reported that the H1B quota of 85,000 visas was going to be increased but that is not going to happen any more. Canada on the other hand does not have a quota on visas.

It is also reported that the US Congress is unlikely to revisit the immigration issue until after the November 2008 U.S. elections.

The above is precisely why Canada is an attractive option for many people, especially those in the USA with no status, over those who lost status like you.

Your second and probably best choice is to apply directly as an immigrant to Canada. You are not required to obtain an offer of employment in Canada to qualify. You are not required to have a relative residing in Canada. You can apply directly as an immigrant on your own merit. As a qualified, educated and experienced engineer you appear to have a strong case in succeeding to obtain Canadian permanent residency.

Q. I am nurse working in Vancouver in a small hospital in the outskirts of the city. My work permit expires at the end of 2008 but I do not wish to work at my current job for much longer. What do I need to do in order to switch jobs legally? If I resign from my job without having a new employer do I need to leave Canada immediately?

A. If you hold a valid work permit you are authorized to work for the specified employer for the duration of that permit. If you leave that employer, your new employer must obtain a HRDC validation which will be used to obtain a new work permit. Do not file or send an application for a new permit until you have the validation obtained. In the event you leave your current employer and do not have a new one, then you do not have to leave Canada. Although, you cannot work for anyone else, you will technically remain as a visitor until the duration of the work permit.

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

UNFAIR REFUSALS FOR CAREGIVERS

Q. I am an employer living in a small town in Ontario. I petitioned my niece to come to Canada as a live in caregiver. It took about two years to process but she was finally interviewed at the Canadian Embassy. She passed the English test and the medical exam. Suddenly, she received a letter stating she was refused due to the fact that her employer does not earn sufficient income to pay for her wages. My husband and I earn a reasonable income and we can certainly afford the caregiver who will only care for our one child. What do you think went wrong?

A. I am seeing more and more of this lately. Canada Immigration has a policy manual to which they should follow. It is not law but guidance. In OP 14, 5.8 it states that the employer must have sufficient income to be able to pay the wages and benefits of a LIC based on provincial wages. Then it states that if there is anything in the documentation or something said by applicant at interview to lead the officer to believe there would be insufficient income, the officer may request the employer to provide evidence such as Notice of Assessment. It appears that the officers in Manila ALWAYS ask for Notice of Assessment regardless of whether they have any suspicions of insufficient income.

Nevertheless, the manual and the regulations are silent on what is sufficient. It certainly is unfair for an employer to wait for two years and more unfair for the applicant to go through the entire process including medical if all along the employer did not qualify. Unfortunately, there is no “chart” based on family size/income that an employer can check to see if they will meet the criteria. But there should be. In my opinion it is unfair and in my mind it is a loophole to which something must be done. I have undertaken to take up this matter with Immigration Headquarters in Ottawa, Ontario.

Q. I entered Canada as a nurse three months ago. I want to change my work permit to a permanent immigrant visa. Can I? I was told that I need to wait for one year before I can file the case.

A. That is not correct. If qualified, you can file the case now. I think what you have been hearing is that you need to be in Canada for one year minimum in order to file the application outside of the Philippines. That too is not necessarily true. If your work permit is longer than one year, even though you only came a few months ago, you still get the benefit of filing the case outside of the Philippines and in your case probably in USA.

Q. I came to Canada after working in Israel for five years. I have not seen my spouse and children for over 7 years now. I just received my open work permit but I am not a permanent resident yet. I am afraid to go to the Philippines for vacation because I have heard horror stories that some workers left and then were denied visas to come back to Canada at the embassy. What can I do to see my family again soon.

A. The best way to bypass the situation and to ensure that you are not one of those horror stories is to eliminate the processing at the Canadian Embassy in Manila altogether. If you have the visa in hand prior to departure from Canada you are assured re-entry. So apply before you go.

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

CANADA vs. USA – DIFFERENT IMMIGRATION RULES

Q. I am writing to you from New York. I have been living illegally in USA for over a year and I am interested in relocating to Canada. I tried to have my current USA employer petition me for a work permit but it did not work out. I do not have a job offer in Canada nor do I have any relatives. Will it be difficult for me to pass without an employer?

A. Contrary to popular opinion, it is much easier to immigrate to Canada than to USA. In general, USA immigration is employment based which means the easiest and fastest way to enter the USA is via a work permit. After that, an applicant can “adjust their status” for permanent residence. Unless a person is sponsored by a close relative, rarely do people immigrate to USA directly and must enter first on a work permit (which means a person must have an employer first).

Canada is more or less the opposite. It is not so easy to enter as a worker (unless you have an employer with a validated offer of employment from Human Resources Canada) but much easier to immigrate if you qualify. A relative or a job offer would help but is not required. Therefore, if you are educated and have work experience in a skilled occupation you will likely qualify for permanent residence. The fact that you overstayed in USA is usually not a problem.

There are other noteworthy differences between the two systems:

1. USA has a priority date system that lets applicants know where their application is in the system. Canada does not.
2. Canada does not have a quota of the number of immigrants entering or for work permits. USA does, so if you are applying for example an H1B visa and the quota has been filled, you must wait until the next year.
3. Canada permits its visitors to renew their visitor status while in Canada much easier. After 9/11 USA has restricted the time a visitor can remain in the country and much more difficult to extend.
4. USA keeps a tracking system of who come in and out. Canada has no record of who / when a person leaves.
5. USA permits the sponsorship of siblings. While the application can take a decade to be processed, Canada has eliminated the sponsorship of siblings altogether.

Q. I tried to renew my visitor status and was refused. I was told that I can appeal the case within 90 days of the expiry. The problem is that I sent my application before the expiry and it took immigration nearly two months to send me the refusal. Does the 90 day appeal clock start at the time of the expiry or the refusal date?

A. Just to be clear, I believe you are referring to a restoration application, not an appeal which is made to the Federal Court. In my experience, Canada Immigration has used the refusal date as the start of the 90 day period to file the restoration application. Note as well, that the fee for the restoration application is $200 and not $75.

Q. I sponsored my parents two years ago. At that time I had a good job that paid well. There was no doubt I met the income level at the time of sending the application. I am told that my parents’ visa will not be ready for at least another year. I recently lost my job and I am worried that by the time the visa is ready I will be short of the income requirement. What if they refuse me? It is not my fault immigration took three years to process the case. Will they look at original income or the income when the visa is ready?

A. Perhaps both. Without question, a person must meet the income at the time of sending the application. Applications are date stamped and even if the officer looks at the case two years later, the sponsor must have met the income level for the 12 months preceding the application. The second part is a bit more tricky. Many times visa officers will not ask for updated income from the sponsor three years after but they have the right to do so. I have seen several cases where the sponsor met the income initially but failed to meet the income level when requested to do so years later. The result is a refusal which should be immediately appealed to the Immigration Appeal Division.

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

By Attorney Henry Moyal

PERMANENT RESIDENT STATUS CAN BE MAINTAINED AFTER LONG ABSENCE

Q. My parents sponsored me and my brother to Canada over 10 years ago. I remained but my brother returned to the Philippines to care for our grandmother and family business. He only stayed in Canada for one year after obtaining his permanent resident visa and has not returned since. He now wants to return. He is now nearly 50 years old and does not know whether he should re-apply or whether he can reactivate his permanent residence.

A. It may not seem evident to you but in reality your brother is still a permanent resident. A person’s permanent residence does not simply vanish or evaporate after years of absence. A person remains a permanent residence until a final determination is made by immigration or whether he surrenders it. In this case there is no mention of him surrendering it so technically he is still a permanent resident. The question now is, how can he return to Canada ? If he is able to return to Canada and maintain residence for two years out of the last five years, then he should be fine.

The procedure is a little cumbersome. It sounds like he never obtained the new PR card and still holds the long paper IMM1000. Therefore, he cannot get on a plane. Therefore, he has a few options. He can apply for a travel document at the local embassy. The visa officer will likely see that he has been absent for so long and then refuse him. He can then appeal that decision and “reactive” his permanent residence if he has sufficient compassionate grounds. Secondly, he may be able to enter the USA if he has a USA visa.

Q. I applied for permanent residence in the year 2005 and I am still waiting for my visa. My children are getting older and my status in the USA is about to expire. How can I speed up the application? I checked on the government site and there is little information about my case. It only states that it is in process. Is anyone actually looking at my case?

A. You have not told me where the application is being processed. If you filed in the USA then there is a problem and you should immediately write to the office for information. The USA offices are more efficient and are working on 2005 cases. If you filed in Manila, then you need not worry so much. There is backlog in Manila and it is likely that they have not even looked at your case yet but will soon. Keep your mailing address current with them. The on line services in the government site is not very descriptive and does not provide up to date information. I would not rely on that exclusively but it is always a good idea to check is periodically.

Q. What is the fastest way to bring my sister to Canada. She entered the USA in 2000 and overstayed her visitor visa. Can she obtain a visitor visa to see me? She originally entered the USA to attend a medical conference. If we send her an invitation letter do you think she will get the visa?

A. I cannot make the final determination but in my opinion she will be refused a visitor visa. The Canadian Consulate in USA will see that she overstayed her visitor privileges in the USA so they will naturally think she will do the same thing in Canada. She will have better luck returning home and applying at the embassy in Manila. In the alternative, if you wish to apply for permanent residence (and not just as a visitor), I think she would have a better chance of success.

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

By Attorney Henry Moyal

DO PROVINCIAL NOMINEE PROGRAMS REALLY WORK?

It is common knowledge in the past several months that the embassies and consulates around the world are in a backlog. While the Federal Government has announced that is seeks to welcome over 200,000 new immigrants next year, one must question how it intends to do so with the thousands of applications languishing at visa posts and no sign of hiring new staff to set off the increasing intake of cases. Many with secure jobs or with young children often do not wish to have their lives disrupted at this time and do not mind waiting a few years to immigrate and settle in a new country. However, for the majority of those who do not wish to wait or for those who have already waited years what is their recourse?

There are two main alternatives and strategies to expedite an application. Firstly, by obtaining an offer of employment in Canada, the visa office has been directed to speed up such cases assumingly on the assumption that the applicant will have a job upon arrival. Policy guidelines have been in force for some time on this issue.

The broader alternative is the strategy to apply under a Provincial Nominee Program (“PNP”). There has been much discussion about PNP’s lately and often many potential applicants do not understand the criteria or ramifications. One must ask, do PNP’s really work? The answer is yes and no. If one is able to satisfy the criteria for the specific PNP the quick answer is yes. In fact, a person many even be able to immigrate in less than a year under a PNP. The other side of the coin is that if one does not qualify under the PNP, there is no use in pursuing that avenue. The following is a guideline regarding PNPs.

What is a PNP?

A PNP in simple terms is an agreement between the Federal and Provincial government that the respective province has the right to select its immigrants. Each province which has such an agreement with the Federal government has the ability to select its needs based on its labor force and issue PNP certificates to qualified applicants. Certificates can be issued as fast as 8 weeks. Once the applicant receives a certificate then the applicant must still file the case to the visa post to undergo routine medical and criminal checks. Visa posts can issue visas in approximately 6 months for those with PNP certificates.

Which province has a PNP program?

Currently Ontario does not have a PNP. Provinces with PNP’s are Alberta , British Columbia, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Yukon. Each PNP program has different criteria and some has quotas per year.

How does one obtain a PNP certificate?

The three main ways to obtain a PNP certificate is via a job offer, relative in the province or as a business immigrant. Each PNP program has its own criteria.

Does a person have to live in the province which issued the PNP certificate?

It is crucial to understand that the primary reason the PNP system was developed was to encourage applicants to live in smaller provinces and to settle there. The PNP program was not designed to cheat the Federal system. It is hoped that applicants who initially arrive in that province will stay there. But do they have to? The answer is no. Under the constitution’s mobility right provisions, each resident has the right to live and move anywhere in the country.

Do PNP’s really work?

Absolutely. If one is able to secure a certificate, the process is much faster. As well, if an applicant has a relative in Alberta for example, it is very likely the applicant will remain the province as he / she has the support system there. Therefore, PNP is a good choice for those who have the luxury of qualifying for one.

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

By Attorney Henry Moyal

ABSENT RESIDENT MAY REAPPLY FOR IMMIGRATION

Q. I sponsored my brother in the late 1980’s to Canada. He became a permanent resident and lived in Canada for over ten years. He then lost his job and returned to the Philippines to secure employment. He has not returned to Canada for ten years. Can he return to Canada? Is he still an immigrant or does he need to start all over again?

A. Technically, your brother is still an immigrant. He is always an immigrant until a final decision is made on his permanent resident status and/or he is given a hearing to determine whether he has lost his resident status. Practically though, in my opinion it will be hard for him to win this case if he has not step foot in Canada for the last decade. What ties does he have in Canada? It also appears that he does not even have his PR card. If he is still holding on to the paper form landing document, he can’t even board an airplane to Canada. I suggest that he approach the Canadian Embassy and plead his case on why he wants to return. If he is deemed to have lost resident status, he will need to reapply from the start.

Q. How can I work as a nanny in Canada or USA? I believe I am qualified for each country.

A. As far as I know, there is no live in caregiver program in the USA that leads to immigration status. Under Canadian law if you work and are issued a work permit in Canada for 2 years within the first three years of arrival then you are eligible to apply for permanent residence in Canada.

When you apply for permanent residence you will be able to apply for your spouse and children.
However, please note that the time it takes to process cases has increased. See below.

Q. I have hired a Filipino caregiver recently. Actually, I have not officially hired her yet but her work permit application is in process. I am told that it would take at least two years to obtain her work permit from Manila and I cannot wait that long. I cannot find anyone to replace her and my kids like her. Am I putting myself in any sort of risk? I do not think I am violating any law since the application is in process.

A. Your letter does not provide information as to why the work permit application is not being processed in the USA. The Canadian Consulates in USA are processing applications faster than Manila so most caregivers in Canada go that route.

In any event, your biggest concern should be the fact that your caregiver is in violation of the terms of her visit in Canada by working illegally. She is at risk of being deported and of not being able to obtain a work permit.

Similarly, you as the employer are in violation of the immigration law stating that ” every person commits an offence who employs a foreign national in a capacity in which the foreign national is not authorized to be employed”

Therefore , technically you can be charged with violation the Immigration Act (IRPA). The fact that the case is merely in process is irrelevant.

Q. I sponsored my wife to Canada four years ago but did not include our child on the application. I was given poor advice and was advised not to include the child because our child was born prior to us being married? How can I now bring my child now?

A. You need to sponsor the child. It is clear that you lied on the application and you are aware that he should have been included. Saying “ my friends gave me bad advice” will not help you. You will need to cite specific compassionate reasons for not declaring the child. Canada immigration has recently published guidelines on how to assess such cases and have stated that they are more lenient and at least amenable to look at special circumstances regarding non-declaration of family members.

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

By Attorney Henry Moyal

OUT OF STATUS APPLICANTS STILL HAVE OPTIONS

Q. I have been an illegal immigrant for a few years now. I consider myself young, university educated and experienced with much to offer to the work force. I made the mistake of listening to too many people and before I knew it my status expired. I then tried to appeal and was refused. I am working “under the table” to feed my family and children. I do not want to live in this manner my entire life and want to legalize my stay. What can I do without being put in detention. My parents think that I am a permanent resident as I lied to them about my stay. I am too ashamed to tell them that I have no status all these years. I need your advice and would appreciate it if you did not contact immigration about my situation.

I find your letter quite interesting as it touches upon several areas and quite helpful to others in similar circumstances. I believe the utterly most important aspect of your letter (as least to me) involves the relationship between a lawyer / client / immigration. Some people are of the opinion that immigration lawyers are simply a branch of the immigration system and the government. This is not true. Immigration lawyers (as with all lawyers) are on your side. Immigration lawyers will not stab you in the back and contact the government to secretly deport you. Lawyers take instructions from their clients and act on behalf of their clients. Therefore, there is no possibility that I would ever contact immigration without your permission.

Secondly, you have mentioned that you are illegal and want to legalize your status. From the information provided, I can pinpoint a few options:

1. You have stated that you are working to support your family. Are you married to a permanent resident or citizen? If yes, it is possible that your spouse can sponsor you, regardless of whether you are illegal.

2. As an educated and experienced worker, it may be possible for you to apply directly as an immigrant. You do not need a sponsor. You also do not need to be legal to file the case. You do however need to qualify under the category.

3. If you are working at a company and the employer is able to demonstrate that your skill is in demand and cannot hire locally, it may be possible to obtain a work permit.

Finally, my utilizing some of your options it will be unlikely that you will be detained. However, by not acting fast you will eventually be caught. There is no way of knowing when immigration will come after you so timing is crucial.

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

By Attorney Henry Moyal

HOW TO HIRE AN AUTHORIZED IMMIGRATION LAWYER – 5 EASY TIPS

The Canadian Government has amended its regulations requiring applicants to only hire ” authorized representatives” . The definition of an authorized representative is either a lawyer or a consultant who is a member of the CSIC (Canadian Society of Immigration Consultants). CSIC is a self regulating body that purports to give credibility to consultants who have not graduated from law school nor are licensed by any law society.

The reasoning behind the above was to protect the public but since the inception of the new rules the public has been more confused. For example, lawyers (who are not members of the CSIC because they ARE NOT CONSULTANTS) are being turned away by clients because they do not have a CSIC number. As well, the Canadian Government not only publishes information on its web site equating both bodies but provides information on CSIC before lawyers. This is astonishing to the bar.

It is worth repeating that effective immediately, Canada Immigration will only process and accept applications from Authorized Representatives. If an application is sent to any Canadian Embassy or Consulate office or any Immigration Office by a non-Authorized Representative the application by law must be returned unprocessed.

In order to be an Authorized Representative, a person must be a Canadian Citizen or Resident of Canada and either be:

1. A licenced lawyer governed by any Law Society in any Canadian province.

2. A consultant that is duly registered by the Canadian Society of Immigration Consultants (CSIC). In order to be registered by the CSIC a consultant must have at least $1million in insurance and pay an annual fee.

Therefore, attorneys in the USA cannot file applications for Canada Immigration and all those ” agencies” in the Philippines are now barred from acting on behalf of clients.

As one peruses the myriad of immigration companies one must be very careful of who is and who is not an authorized representative. Here are some tips:

1. If a person does not have ” Barrister & Solicitor” at the end of their name. They are not lawyers. Period.

2. Do not call a person ” attorney” if they are not. An attorney is a lawyer and in order to be a lawyer a person must be licenced by the Law Society of Upper Canada.

3. Just because a person has an L.L.B degree (law degree) does not mean they are lawyers. It only means they attended a law school. It is like going to medical school but not becoming a doctor.

4. Just because a person has the word ” Law” in their name or company does not mean they are lawyers. This is simply a trick to deceive the public.

5. If a person is not a lawyer, in order for them to represent you they must be recognized consultants on a list. To check if they are approved consultants call or check.

If they are not lawyers nor on the CSIC list, do not hire them as the cannot file your case or represent you at the Immigration and Refugee Board.

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

By Attorney Henry Moyal

THE INS AND OUTS OF VISITING CANADA

Summer is now upon us and this time of year brings thousands of tourists to Canada. We are therefore devoting this article to the flood of inquiries that relate to all matters pertaining to visiting Canada and subsequent to entry.

Q. How can I visit Canada? Where can I obtain a visitor visa?

A. Each applicant must determine firstly whether they require a visa to enter Canada or not. In other words do you need to apply directly at the Canadian Embassy or Consulate to enter Canada or can you just hop on a plane and enter. Citizens of the USA do not need a visa and may enter at a port of entry. Citizens of the Philippines do require a visa prior to arrival and therefore a formal application must first be made at a Canadian consulate or embassy outside of Canada. In the USA, Canadian consulates are situated in Buffalo, Detroit, Los Angeles and Seattle.

Note that if a person is a Philippine Citizen but is a greencard holder in the USA, they do not require a visa.

Q. How long can I stay in Canada?

A. The visa officer at the border or airport will determine the length of time permitted but most of the time the permitted duration upon entry is six months.

Q. Can I stay longer than six months in Canada or can I stay longer than the time initially given at the port of entry?

A. Yes, a person must apply for an extension of his/her visitor status prior to its expiry. This can be done from inside of Canada.

Q. What is required to extend visitor status?

A. The government processing fee is $75 per extension and must be accompanied by a formal application and supporting documents pertaining to the request to extend stay.

Q. What if I forgot to extend my status?

A. It is possible to “ restore” status if a person’s visitor status has already expired. However, the restoration application must be filed within 90 days of original expiry.

Q. Can I get married in Canada as a visitor?

A. Assuming you are free to marry (ie. divorced, widow, single), yes, visitors can marry.

Q. Can I obtain a divorce if I am a visitor?

A. Yes, however under family law you must have been in Canada for at least one year at least.

Q. Can I work while I am a visitor?

A. No. To work a person must hold a work permit.

Q. Can I convert my visitor status to a worker or immigrant while in Canada?

A,. Yes, it is possible but it will depend under which category a person applies under. For example, a visitor who marries a Canadian resident is able to remain in Canada and obtain an immigrant visa while in Canada. A visitor who wishes to work must have a Canadian employer and then a formal work permit application can be filed in USA.

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

By Attorney Henry Moyal

THE DANGERS OF AN INVALID WORK PERMIT

Q. I came to Canada as a construction worker and I have a valid work permit which will be expiring at the end of the year. In fact, my work experience in related to mostly engineering but I explained to the visa officer in Manila that I was willing to work in the construction field for my Canadian employer as I am a suitable and over-qualifed candidate.

The problem is that when I arrived in Canada the construction job that was promised to me at over $20 per hour did not materialize. Not only did it not materialize but I have been informed that the Canadian employer never really existed and was formed only to obtain work permits for people. I was promised to a good paying job and I am embarrassed to go back home as I am ashamed that I failed in Canada. I had to borrow money to pay the recruitment company to bring me here but I feel I am now stuck as I do not have a job and I cannot remit money back to my family. My work permit is expiring and I do not know what to do to extend my status.

A. In my opinion, you have several issues to tackle. Your comments regarding the fact that the Canadian employer is not being genuine is alarming and becoming a little too familiar nowadays. I have been advised that there was several investigations under way by several agencies including HRSDC which may or may not involve your case. In any event, you should research this further. Secondly, you are in Canada on a work permit with no employer. You must find a new employer in order to obtain a new work permit. Finally, obtain some help regarding remaining in Canada in the long term. You may be able to qualify as an independent immigrant.

Q. I obtained my immigrant visa three months ago and I entered Canada as an immigrant last week. I paid the full landing fee earlier this year. How do I obtain my refund?

A. Those who have obtained their visas prior to the change in law on reduction of the landing fee and who landed in Canada after May 3, 2006 are entitled to a refund. If you did not obtain the refund from the embassy nor at the airport you must write to Canada Immigration in Ottawa to obtain the refund and complete the appropriate form.

Q. I am a new graduate in accounting. I am single and have three sisters who are Canadian citizens. I want to apply as an immigrant. How do I go about that?

A. You must have a minimum of one year of full time work experience. That is the threshold to at least get yourself inside the door. While I do not have much information to assess your case, you need at least 1 year of work to even start. So without that you are not qualified as a skilled worker.

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