By Attorney Henry Moyal

NEW POLICY ON UNDECLARED FAMILY MEMBERS

As many of you are aware, the implementation of the new Immigration Act (IRPA) brought sweeping new changes with respect to those individuals who landed in Canada but left behind spouses and children and did not declare them upon entry. The “penalty” for last four years has been that Canada Immigration will not regard those family members as members of the family class and hence cannot be sponsored. So for example, if a person entered Canada a decade ago but had a secret wife which was never declared, then that person cannot thereafter sponsor the wife as he never told immigration about her in the first place.

While many view this law as harsh resulting in separation of family and children, the immigration department argues that misrepresentation cannot go unpunished, honesty must be encouraged and that all family members are required to be medically examined before someone can be landed.

The embassies around the world has repeatedly refused such sponsorships and appeals to the appeal division have mostly been thrown out for lack of jurisdiction.

The above policy has changed in certain circumstances as per a policy announced by Canada Immigration this week.

In general, section 25 of IRPA permits officers to approve applications on humanitarian and compassionate grounds and provides officer with the authority to overcome an applicant who is an excluded family member.

As such, the new policy:

Recognizes that a visa officer must review humanitarian and compassionate reasons which are exceptional and deserving from a reasonable person’s point of view.

Recognizes Canada’s continuing obligations under the convention on the Rights of the Child. As such, the immigration department must consider the best interests of a child.

Recognizes that H&C factors are appropriate where family members were declared but not medically examined and it is clear that the sponsor made best efforts to facilitate the examination.

Recognizes that H&C factors are appropriate if the sponsor presents compelling reasons for not having disclosed the existence of a family member i.e. When the existence of a child was not disclosed because the child was born out of wedlock in a culture that does not condone it.

While there is still lots of work to be done, there seems to some compassion on the side of visa officers that will permit certain excluded family members from being approved. It is certainly a step forward.

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

CHANGING IMMIGRATION CATEGORIES HAS ITS LIMITATIONS

Q. I am a visitor in Canada since December 2005. My visa is multiple entry. I have been offered a position to work in a dental office but the employer will not let me start work until I can provide him with a social insurance number. Can I change my visa to a work visa?

How is it done?

A. The fact that a person has a social insurance number is irrelevant to immigration. I have heard stories where people just walked into an HRSDC office and obtained temporary SIN numbers as visitors. Whether it is true or not, is not important. The fact is that a person is only authorized to work with a work permit. Work permits are only issued by Canada Immigration.

It is indeed possible to change your visa from visitor to worker but a new work permit can only be issued outside of the country.

The process to issue a work permit can be done quickly but one must be aware that the employer must first obtain a validation from the local HRSDC office. That is not so easy to do.

Finally, there are other job offers that may lead to permanent residence but do not require you to exit the country to obtain a work validation. It is best to discuss your case and obtain an assessment from a qualified professional.

Q. I entered Canada as a single mother but in reality I was married? I do not know where my husband is and we have not spoken for years. After arriving in Canada I filed all my tax documents and immigration documents as “ never married”. I have now received a letter from immigration that they searched the NSO records and discovered that a marriage is registered in my name. They are giving me 30 days to provide an explanation. What do I say?

A. You have not mentioned if you have applied for permanent residence yet. As well, you have not indicated if you provided any information in the past on your husband or whether you lied throughout your entire stay in Canada. In general, the facts of your case are of a serious nature as you have misrepresented yourself. I cannot tell you what to say as I do not have much information on the circumstances of your case. There may be ways to convince the officer of why you withheld information and for that you need to obtain professional advice.

Q. My sister applied for permanent residence in Kuwait about 2 years ago. Her contract is expiring and she now wishes to return to the Philippines. What will happen when it is time to go for interview? Will she have to travel to Riyadh? What if she cannot go back there? What will happen to the case? Can the file be transferred to Manila?

A. This is very good question and one that is arising often as time frames to process cases are taking longer and longer. I would first find out if your sister can return back to Kuwait if there is an interview. Remember , there may not be one. If there is an interview and she cannot return, ask the embassy to schedule the interview in London. If she cannot obtain a UK visa then request a file transfer to Manila. A file transfer is the last resort because file transfers are only granted in exceptional circumstances.

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

JILTED SPOUSE CAN SUE FOR FAKE IMMIGRATION MARRIAGE

Q. I am over 40 years of age and I married a man in the Philippines about 3 years ago who is 10 years younger. After our elaborate wedding, we spent time on our honeymoon in Asia and I eventually sponsored him to Canada. If was not an easy application as the visa officer was suspicious about our relationship and suspected that he was using me only for immigration purposes. I spent a considerable amount of money traveling back and forth, phone calls and government fees to have him come to Canada. A week or so after he landed, he started to fight with me over small things and I got the feeling he never really wanted to live with me in the first place. He left our apartment after about 4 weeks and he has not called me since. What can I do to have him deported from Canada?

A. Unfortunately, this is not an uncommon scenario. I have heard of such cases before and have presented several cases to Canada Immigration. The not-so-good news is that Canada Immigration will rarely deport these cheats as they are reluctant to enter into personal family disputes. Depending on what kind of evidence you have to prove the deceit, it may be worth trying.

On a positive note, a recent case from British Columbia Supreme Court granted damages in a case similar to yours. In that case, the woman sued her husband for tort of deceit and won. The husband in that case dumped his wife after 17 days in Canada and absconded without a trace. She was awarded over $21,000 for “hurt feelings, humiliation, inconvenience, wedding ring and government fee”.

In reaching his decision, the judge held that the four key elements of deceit existed:
1. false representation
2. defendant’s (husband) knowledge of its falsity
3. his intent to deceive and
4. reliance by the plaintiff (wife) with resulting damage.

Q. I have overstayed my visitor status for about 2 years now. I have been reading the articles in the daily newspapers about how the immigration department is targeting illegals and deporting several ethnic groups like the Portuguese community. Are Filipinos at risk? Do I have to worry?

A. While it may seem via media coverage that the Portuguese community is being targeted, in my opinion that is not the case. I also do not think that some person at immigration wakes up one day and says “ ok, this week we are going after the Filipinos or the Chinese”. In my many years of experience, I have learned that the media only shows you what they want you to see. Who do you think called the daily newspapers to cover the story? It surely was not Canada Immigration. That being said, I do not think that you should be worried because you are Filipino. You should be concerned since you are illegal. If you only overstayed it is likely they may not catch you soon. Remember, the Portuguese families in the news lately all applied for refugee status and lost. By applying for refugee status you are automatically given a conditional removal order…..which means they will end up catching you one day. I suggest that you investigate the appropriate options available to legalize your status as soon as possible.
The minimum income level required to sponsor family class members is not required when a person sponsors a spouse. In general , for a family unit of two the minimum income level of about $25,000 is required. You are not required to earn that amount.

Q. I am a USA citizen and I became a Canadian permanent resident 3 years ago. I want to apply for Canadian citizenship now. Will I lose my USA citizenship by doing so?

A. No. both Canada and USA permit dual citizenship.

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

PRE-RISK REMOVAL ASSESSMENT (PRRA) APPROVAL RATE IS 3%

Q. I have been in Canada for over five years. After applying for refugee status and losing, I applied from inside of Canada to be sponsored by my wife. Our marriage broke down and my wife withdrew her sponsorship. I have now received a notice to appear at Immigration Enforcement for my PRRA application. What if I do not show up ? Will they put me on a plane on that day? Will I be able to win my PRRA if I explain that my wife left me?

A. Firstly, you must attend the interview or there will likely be a warrant for your arrest (which you do not want). They will likely not put you on a plane as you have not even applied for PRRA yet nor received a decision on PRRA. That being said, the statistics for PRRA applications were recently published. They do not look good and are similar to the dismal and “guaranteed to lose” rate for claiming refugee status from the Philippines. It is still baffling how consultants still entice Filipinos to claim refugee status and give them false hope.

PRRA statistics for 2005:

194 PRRA applications approved

6631 PRRA applications refused

Approval rate : 3%

Q. I am a Canadian Citizen. I went to visit my sister in New Jersey two years ago and ran into an old school friend. We started to date and we got married over one year ago. I want to sponsor him to Canada but I do not have a high income. The reason my income is low is because I recently graduated from school and I am mostly living in the USA to be with my husband. I am afraid that if I sponsor my husband the case will be refused if they know that I am not in Canada all the time and I do not have a stable job.

A. While you are correct in your assumption that sponsors must reside in Canada to be eligible to sponsor family class members, there is an exception to the rule. The only exception available is actually your exact case. Canadian citizens who sponsor their spouses do not need to reside in Canada. They can sponsor their spouse and/or dependant children on the condition that they intend to return to Canada when the spouse becomes an immigrant.

To prove that you will return to Canada, the immigration document has a list of items that prove genuine intention.

The minimum income level required to sponsor family class members is not required when a person sponsors a spouse. In general , for a family unit of two the minimum income level of about $25,000 is required. You are not required to earn that amount.

Given the above, you have the green light to proceed and file a sponsorship application.

Q. My sister lives in Dubai, UAE. My brother lives in Manila, Philippines. They are recent graduates of a university and have only a few months of work experience. How can they immigrate to Canada. What is they want to work there as caregivers?

A. Your question touches upon two distinct categories. To apply as an immigrant a person must be educated and have at least one year of work experience in the same occupation. It appears that your siblings do not have that so it is too early to apply. It is best to get re-assessed one they pass that threshold. Secondly, the live in caregiver program is a special immigration category that permits workers to obtain residence after working in Canada for two years. If that is what they are seeking, they will be required to have an offer of employment.

Q. My sister in the Philippines graduated from university in commerce and has worked in the hotel industry for ten years. I would like to have her come to Canada as a live in caregiver to care for my two children. If immigration does not approve me my neighbor is willing to step in and be the sponsor. We do not care about the timing or fees, we just want her to come to Canada to work as soon as possible.

A. Do not open your check book just yet. Whether you have one or ten potential employers in Canada it seems that your sister is not qualified. In order for her to obtain a work permit under the live in caregiver program she must:

1. Obtain an approved job offer from a Canadian employer (that is where you come into play)

2. Strong command of English

3. At least 12 years of education

4. Either six months training certificate as a caregiver or at least one year of paid experience as a caregiver in the last three years.

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

ILLEGAL STATUS CAN HAVE IMPACT ON FUTURE APPLICATION

Q. I am currently in Canada with no status. I arrived over 3 years ago as a live in caregiver but was not able to apply for permanent residence because I did not accumulate 24 months of employment. My work permit has expired but I now have a new employer who wishes to hire me. Actually I have been working for her for the last 6 months. Can I re-apply for a new work permit in Canada? If not, where and what are my chances.

A. You are illegal in Canada and you are not authorized to work. As such, if the immigration department finds out you will not likely obtain a new work permit. A new work permit must be filed outside of Canada. In your case, in USA or Manila. If you file in USA you will be required to obtain a USA visa to enter that country which can be tricky. You need to remember that a work permit (like a visitor or student permit) are temporary visas and the applicant must demonstrate that they will leave Canada after its expiry. If you did not comply with the terms of the first issued work permit then it is possible that the next visa officer will not believe you that you will comply this time around.

Q. I entered Canada as a visitor four years ago. I obtained my immigrant visa two year ago. When can I apply for Canadian Citizenship?

A. To qualify for Canadian Citizenship a person must have resided in Canada for three years in the last four years preceding the application. Anytime spent legally in canada before permanent residence will count as half the time (up t one year).

Q. I live in California. I want my nephew to be closer to me and I am interested in having him immigrate to Canada. He is married. Both he and his wife are nurses in Dubai. We have several close friends in Ontario but no relatives. Since I do not live in Canada I am afraid I will not be eligible to sponsor him. Without a sponsor or a relative does he stand a chance?

A. Yes, he does. Actually, he stands a very good chance. I have recently returned from a business trip to Dubai. I experienced that there are several qualified Filipinos who are working for substandard wages and are highly qualified to immigrate to Canada. Even if you resided in Canada you would not be able to sponsor him. Canadian immigration laws does not permit siblings to sponsor one another but have more relaxed laws on allowing skilled workers to obtain permanent residence in Canada on their own merit.

Education and work experience are key factors in applying. Having a relative is not required. It appears that your nephew and wife (who are educated and working as nurses) have a solid case.

Q. I am engaged to a Canadian woman. We want to marry but there are two problems. Firstly, I do not have any legal status in Canada. Secondly, I was married before in the Philippines. There is no divorce in the Philippines and an annulment will take too long. I do not know what to do. Can I just say that I am single and marry my fiancée and then apply for Canada Immigration?

A. I will deal with the second question first. I do not advise you to lie on your marriage licence application. While it may result in a marriage that marriage is void since you did not have legal capacity to marry. Therefore it is invalid and is of no use to you. As well, upon applying for immigration the Canadian government will surely check with the NSO and discover the first marriage. After that your case will fall apart and be refused. So why go down that route.

You should consider obtaining a divorce. After that marry your fiancée and commence a sponsorship application. It may take a while but it is your only choice. If you have no status you need to implement the correct strategy.

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

CHANGING EMPLOYERS REQUIRES NEW JOB VALIDATION

Q. I came to Canada about 5 months ago to work as a nurse and my work permit is valid for another 18 months. The problem is that my current work permit is “ employer specific”. My understanding is that I can only work for that employer. I am not happy with my current position and I have been offered a position at another nursing home. How do I obtain a new work permit. Do I need to exit Canada for that?

A. Applying for the new work permit is the relatively easy part and can be done from inside of Canada. The processing fee is $150 and takes about one month to receive. The more difficult task at times is to obtain the job validation. In order to apply for the switch in employers you must first have a confirmed validation from the second employer. The second employer must be able to show that they attempted to recruit local Canadians and were unsuccessful. This can entail advertisements and interviews. Once the positive labour market opinion is obtained you are eligible to apply for a new work permit.

Q. I arrived in Canada about one month ago. It is my first time in Canada. I really like it here and I have even resigned my job as a professor in the university in the Philippines. I have an elderly sister in Canada but besides that no other family. I want to work and do whatever it takes to stay. I went to a consultant and she said that applying for humanitarian and compassionate application is best. We just filed it this week. I am looking for a second opinion. Was that a good idea?

A. With the limited information you provided, I think it was a very bad idea. If you just arrived in Canada one month ago it would be very hard to show that there are compassionate reasons already to permit you to stay. As well, if you are a professor and you have a relative in Canada, it seems that you have a strong case as an independent immigrant. The rate of success for H&C is quite low and in my opinion almost impossible for people in your circumstances. I would explore other avenues before it is too late.

Q. I applied to sponsor my mother and her application is almost complete. The immigration office is now asking for $975 as the landing fee. Should I pay it? I thought the landing fee was being eliminated? If I pay it can I get it back if the laws change?

A. Yes, it was announced that the landing fee would be cancelled but there are no details yet on how and when it will be implemented or retroactivity.

Q. My wife and I are greencard holders in the USA. We were sponsored by our daughter who has been a USA citizen for two decades now. The problem is that our two other daughters are left in the Philippines and we all want to be together. My two children left behind are married and they could not be attached to our USA petition. I was told we could not sponsor our children and further that if my USA citizen daughter sponsored her siblings it would take about nine years. We do not want to wait that long. Can they immigrate to Canada where we can be closer to each other?

A. Actually, I heard that is takes about ten to twelve years for a USA citizen to sponsor a sibling ( I am not a USA attorney but I believe it is fourth preference). So, if you have information that is takes nine years, that is not bad considering US immigration. However, I must agree with you that it is still far too long a process. My suggestion is to have them apply for immigration to Canada if they are educated and have work experience. On average the case will take a few years and they will become immigrants of Canada. Once they are immigrants they can enter the USA easily and eventually become Citizens of Canada.

Q. If I have overstayed my visitor status in the USA can I apply for immigration status to Canada?

A. Yes. I need to know more about your background but in general, if you have no status in the USA, that does not bar you from applying for immigration to Canada. However, depending on your situation you may not be able to file the case inside the 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

$975 LANDING FEE MAY BE ABOLISHED

Q. I heard that the federal government may be changing the categories and fees after the upcoming election. Is that true?

A. The federal election will be held on January 23, 2006. We will have to see which political party succeeds. At the present time, each party has announced a platform that does involve changing some of the categories and in general will “ open the doors” to more immigrants. So in general, it will be easier to immigrate and not less restrictive. Again, we will have to wait and see.

As well, there is much discussion regarding removing the hefty $975 landing fee. At present, each adult must pay a landing fee of $975 to obtain an immigrant visa. It was introduced several years ago to expedite processing but in recent years it is anyone’s guess as to where all that money goes. If over 250,000 persons obtain visas per year, just do the calculation. One political party wants to abolish the $975 and others wish to reduce it to $600 in the first year and then $300 in one year and then zero in the next two years.

Q. I sponsored my parents and my older brother several years ago. The Canadian Embassy has determined that my brother is too old to be a dependant but we do not agree. Nevertheless, the embassy has excluded my brother from the application and will only issue my parents a visa. I want to appeal to the Immigration Board. Can I appeal only my brother’s part and still have my parents get their visas?

A. No. It is one application. You have no right to appeal the brother’s refusal alone to the appeal division as he is not a member of the family class.

Q. I am a caregiver who just arrived in Canada six months ago. I am aware that I need to work for another 18 months for a total of 24 months before I become an immigrant. The problem is that my work is very hard and my real passion is to work in a hospital. Both me and my husband in the Philippines are head nurses in our city hospital. Can I change my work permit to an immigrant visa?

A. Yes, you can. In fact, it is probably a good idea for you to start calculating the time frames it would take to become an immigrant. You mentioned that you arrived six months ago. There is not guarantee that you will accumulate 24 months of work within the exact same period of time of arrival. For example, what if you change employers or you are released? In any event, assuming you complete the program in two years that does not mean you are an immigrant immediately. You must then apply for permanent residence, complete medicals, family in Philippines also must complete medicals etc… On average you can add about 12 – 18 months to the processing.

Therefore according to my calculation it will take another 2 to 3 years to actually become an immigrant. If you are qualified as a skilled worker now (and it seems you are) then it is a good idea to look into filing a new application directly as an immigrant. It will save you time in the long run. If you can add a validated job offer you could be an immigrant in less than a year. With your reputable credentials it is worth looking into.

Q. I am a failed refugee claimant. Can I still apply for an immigrant visa? If I return to the Philippines now will my refugee claim refusal be a negative factor in returning to Canada ?

A. Claiming refugee status from the Philippines is in general not a good idea. In fact, it is quite a bad decision. Last year, there were a total of 765 refugee claims from citizens of the Philippines and only 4% passed. ( Compare that to 3851 claims from citizens of Pakistan and an 81% success rate from Colombia ) . In any event, if you are deported you will not be able to return to Canada. If you have a strong case, it is indeed possible to return to Canada by filing an ARC application. Be ready to explain why you were so foolish to apply as a refugee. It is sure to be a question at your interview.

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

NO OFFICIAL “ LAST REMAINING RELATIVE CATEGORY”

Q. I want to know how I can sponsor my eldest sister in the Philippines. She is the only one left back home and we have tried to invite her for a visit many times without success. She is over 40 years old and single. My mother had six children and we are all in Canada, working, citizens and paying taxes except my eldest sister. She stayed in the Philippines to take care of our ailing mother who recently passed away. She is now alone. How can I sponsor her as the last remaining relative?

A. There is no official “last remaining category” under immigration law. Several years ago under the old Immigration Act there was a policy in the immigration manuals that specifically recognized the case that you describe. It was called the “last remaining relative category” and immigration officers had specific policy notes on to deal with such scenarios. However, there is no policy now and basically you can only apply under the scope of a “ humanitarian and compassionate application”. Under the H&C application the visa officer has the discretion to approve the application if there are compelling reasons.

It should also be noted that the “ last remaining relative category” should not be confused with the family class category of an applicant whose sponsor is alone in Canada. Under this type of category it is the sponsor who is alone in Canada, not the applicant. If a sponsor (Canadian citizen of permanent resident) is alone in Canada and their parents/grandparents are deceased, they are eligible to sponsor any relative regardless of relation.

Q. I have lived in Canada for about five months now. I love it here and I want to know how I can convert my visitor visa to an immigrant visa? Is it possible?

A. Yes and no. While your question is quite common, there is no direct provision permitting one to convert a temporary visa to a permanent one. Assuming that you qualify for permanent residence, it is possible to become an immigrant while you are a visitor. But technically, you are not converting anything. Basically, you need to remain as a visitor and apply as an immigrant. Therefore, you remain under one category while simultaneously applying for another.

There are also other issues that you need to know about, for example place of processing and extending your status. Since you have been in Canada for five months, I am assuming that your visitor status will expire very shortly. I suggest that you obtain professional advice on the permanent residence application, place of processing and extension soon.

Q. I arrived in Canada under the World Youth Day program to see the Pope. I never left since. I applied as a refugee and was denied. I was given a PRRA, pre-risk removal application and I will be obtaining the result soon. My question is with regard to my Canadian born child and my fiancée. My fiancée is a permanent resident and we want to marry. If we marry will I be able to remain in Canada. If I am deported will my son also be deported?

A. First and foremost, since your son was born in Canada, he is a Canadian citizen. He cannot be deported because of you. Secondly, if seems that you have been in Canada for several years since it was over 3 years ago that the Pope was in Toronto. If you had a baby that means you were in a relationship for at least 9 months now and I am bewildered as to why you would pursue a guaranteed-to-lose refugee case instead of a sponsorship application. Last February 2005, the minister announced that those in spousal or common law relationships with Canadian Citizens/PR can apply from inside of Canada even if they have no status. I question as to why you did not apply for this application? Under the same announcement, it was determined that those who have already received their negative PRRA decision, are not eligible for the special program. Since you will obtain the result soon, you may not have enough time to file the inland application. You have not provided enough information as to when the PRRA application was sent. Your options are to pursue an application from inside or outside of Canada.

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

FRAUDULENT RECRUITERS TAKE ADVANTAGE OF IMMIGRATION LOOPHOLES

Q. I live in the USA but my daughter lives in the Philippines and is nearly thirty years old. I could not include her on my immigrant application to the USA because she was overage and not considered a dependant. My wife and I figured that the next best thing would be to pay for her schooling as a live in caregiver and to work in Canada. My daughter found a recruiter in the Philippines who allegedly has an office in Canada to find her an employer. We paid several thousand dollars to find the Canadian employer and the application was filed over two years ago.

My daughter was about to get her visa when we were informed that the Canadian employer suddenly withdrew her job offer because the case was taking so long. If we find a new employer can we just switch them or do we have to wait for another two years?

A. I would definitely look deeper into this matter. It is no secret that the Canadian Embassy in Manila is taking very long to process live in caregiver applications. Two years is the average but they are trying to improve the processing times by hiring more staff. Because of the ludicrous amount of time to process these work permits, it has opened the door for unscrupulous consultants and agencies to take advantage of people. Anyone can promise an employer. These recruiters ask for thousands of dollars and “promise jobs” but they know full well that the case will take over two years. Then after the long wait, the recruiter says that the employer got fed up and could not wait any longer so they cancelled the job offer. In reality, the employer had no intention of hiring anybody. It is a very common problem and immigration apparently has no interest in doing anything about these people.

I would definitely try to get your money back. What exactly was your agreement? Was it to obtain the work permit or employer? If so, the recruiter did not provide that service. As well, if you look deeper it may be apparent that the employer never did have the intention to hire. Contact the employer. You have the right to do so. If they do not reply to you that is a red herring and something is fishy.

Q. I am in Canada on a work permit but very lost in this entire immigration system. In fact, while I do have a work permit to legally work I never actually worked for the company that sponsored me. I paid about $5000 to a recruiter in the Philippines who has an office in Canada to help me come and work in Canada. I was promised over $25/hour, accommodation and benefits to work at a company in the construction industry. When I arrived in Canada, the company told me that there was no job available. This is the same story for my other five friends who came with me – two of which have fled to New Jersey. I am working in a factory now for $9/hour. I cannot locate the recruiter and my work permit is about to expire. I am too embarrassed to tell anyone my story. What should I do?

A. There is nothing to be embarrassed about. These recruiters took advantage of you and they are the ones who should be embarrassed. Unfortunately, your story is quite common. The first step that should be done is to obtain professional help (or you can do it yourself) in order to assist you in reporting the recruiter and employer to the proper authorities. In my experience, once the proper evidence is filed, the employer will never be able to sponsor someone again and the recruiter will be banned from recruiting again. Secondly, you have your own immigration dilemma. Your work permit is about to expire so it is imperative for you to obtain a new work permit. Again, obtain professional assistance. If you let your work permit expire you will need to leave the country to renew it.

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

CHANGING IMMIGRATION CATEGORY MAY BE WISE CHOICE

Q. I am a caregiver who just arrived in Canada six months ago. I am aware that I need to work for another 18 months for a total of 24 months before I become an immigrant. The problem is that my work is very hard and my real passion is to work in a hospital. Both me and my husband in the Philippines are head nurses in our city hospital. Can I change my work permit to an immigrant visa?

A. Yes, you can. In fact, it is probably a good idea for you to start calculating the time frames it would take to become an immigrant. You mentioned that you arrived six months ago. There is not guarantee that you will accumulate 24 months of work within the exact same period of time of arrival. For example, what if you change employers or you are released? In any event, assuming you complete the program in two years that does not mean you are an immigrant immediately. You must then apply for permanent residence, complete medicals, family in Philippines also must complete medicals etc… On average you can add about 12 – 18 months to the processing.

Therefore according to my calculation it will take another 2 to 3 years to actually become an immigrant. If you are qualified as a skilled worker now (and it seems you are) then it is a good idea to look into filing a new application directly as an immigrant. It will save you time in the long run. If you can add a validated job offer you could be an immigrant in less than a year. With your reputable credentials it is worth looking into.

Q. I recently passed my interview and my immigrant visa was issued last week. I have another 8 months before I need to go to Canada. My wife is expected to give birth in April 2005 and I want to know how to add the baby to the application. My wife cannot fly at this time so it is not likely that she will land before the birth of the baby.

A You have a problem. Read carefully because there are some options and perhaps you should consider professional assistance. In brief, because the visas are already issued then you cannot get them replaced and just ” add the baby” . If you do not land before the expiry date, then the file is closed and you will have to return the visas.If you have the baby and then inform immigration, the same is true. File is closed and you need to start again.If you have the baby and not inform immigration and then land…. this is representation and you will never be able to sponsor the child in future. For this reason it is always a dangerous situation when applicants give birth to a new child between visa issuance and landing.

Q. I am a failed refugee claimant. Can I still apply for an immigrant visa? If I return to the Philippines now will my refugee claim refusal be a negative factor in returning to Canada ?

A. Claiming refugee status from the Philippines is in general not a good idea. In fact, it is quite a bad decision. In 2004 ,. there were a total of 765 refugee claims from citizens of the Philippines and only 4% passed. ( Compare that to 3851 claims from citizens of Pakistan and an 81% success rate from Colombia ) . In any event, if you are deported you will not be able to return to Canada. If you have a strong case, it is indeed possible to return to Canada by filing an ARC application. Be ready to explain why you were so foolish to apply as a refugee. It is sure to be a question at your interview.

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

NEW IMMIGRATION SYSTEM MAY BE ON THE HORIZON

The federal government is in the process of revamping yet again Canada’s Immigration system. While no specifics are being revealed, the federal minister has stated that the system needs fixing.

The main areas to be focused on are:

Illegal Immigrants

There are tens of thousands of undocumented immigrants who are living illegally in Canada, says federal Citizenship and Immigration Minister Joe Volpe.

He has drafted a number of options designed to regularize undocumented workers and is preparing to bring them to his government. However, granting a blanket amnesty to those living illegally in Canada is not on the table.

The problem of “illegals” is complex and has been dealt with time and time again in the USA. Do we provide them with an amnesty which tends to rewards queue jumpers? Or are they to be rewarded for doing jobs that others do not want to do? Many are hardworking individuals doing jobs paying taxes on their earnings.

It is estimated that there between 10,000 to 120,000 illegals in Canada but there is no way of knowing since there is no system to keep track of visitors in Canada.

Canada’s problem with those living illegally in the country does not compare to the United States where an estimated 1,000 Mexican workers cross into the country daily.

In the USA, president Bush has already decided to tackle the same issue but has also indicated that there will not be a blanket amnesty. We will wait and see how each country deals with this issue.

Independent Immigrants

It has been reported that the current selection grid concentrates too much on education and not on trade and skills. The federal minister has indicated that a change is needed to shift a focus on tradespeople who can build the country and do jobs that can build the economy.

Currently there is a shortage of workers in the hospitality , trucking and construction fields.

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

WORK PERMIT PROCESSING TIMES HAVE INCREASED

Q. I am a caregiver in New Jersey and want to become an immigrant in USA or Canada. Which one is easier ?

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.

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 applied as a refugee in Canada three years ago. I was refused. I knew my claim was not so strong but I was convinced by a consultant that a refugee claim was the best route in order to obtain a work permit. What can I do now and what is your opinion on humanitarian and compassionate appeals ?

A. Applying for permanent residence in Canada under humanitarian and compassionate grounds is not an ” appeal” . It is a last ditch effort to stay in Canada. While I do not know the specifics of your case, I cannot say if you will pass or not. However, I can tell you with the chances of success on H&C is very very low. I do not think you should count on H&C and should explore other possibilities. However, if you have no other choice perhaps an H&C is all you have left. It would be best to obtain professional advice.

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

CANADA ELIMINATES VISA SHOPPING

Q. I am a nurse by profession and currently a visitor. I have been offered a position to work as a caregiver for a family. My future employer has already obtained approval and it is now time for me to send my application for a work permit. Where do I send it? Some agencies told me to file the case in Jamaica. If I do that do I really need to travel there?

A. I too have heard of agencies that advise caregivers to travel to Jamaica for work permits. I personally have never had such a case and in my opinion it is not a good idea. Further, I have actually never seen anyone obtain a visa from Jamaica in similar cases such as yours. If you were to send the case to Jamaica you would indeed need to travel there. I once inquired at the Jamaican Embassy and they require several supporting documents.

Regardless, it does not matter anymore. Effective immediately, Canada has eliminated visa shopping. You cannot send your case to Jamaica unless you are a Citizen of Jamaica or have been lawfully admitted to that country. As of April 1, 2005 all applicants who apply for a work or study or visitor visa must file their application in their country of origin or in the country where they have been lawfully admitted.

If an applicant is in Canada, the USA consulates have jurisdiction. Therefore, if you have a USA visa it may be possible for you to file the application in the USA. You mentioned that you are a visitor. I am assuming that you entered legally. If yes, you have the option of filing in USA even if by now your visitor status has expired.

Q. My brother and his family have applied for permanent residence. My brother was the main applicant and he was educated and worked for the National Bureau of Investigation for many years. Unfortunately, he was in an accident and passed away. Can the application still proceed? His children are very young and we want the family in Canada.

A. Firstly, you should inform the Canadian Embassy right away of what has happened. Unless they are sympathetic to your case, the case will likely be refused. I have had similar cases and unfortunately the embassy will not permit the wife and children to immigrate. The main applicant was your brother.The case was strong because of him. If he is no longer is alive, they will not proceed with the case. You did not mention anything about your sister-in-law. If she is just as qualified then you can try to convince the officer to “switch” main applicants. It is worth a try. Good luck.

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

NEW IMMIGRATION LAWS WILL EASE ENTRY FOR VISITORS

Q. I am a hard working nurse and my schedule does not permit me to visit my family back in the Philippines very often. I therefore thought that the easiest way to see my family would be to have them visit me. I am willing to pay for all medical and airline fees and they will reside with me at all times. I sent several invitation letters to the Canadian Embassy in Manila to have my only sister visit me but she is constantly denied. I do not understand why and it does not seem fair.

A. What might appear to be unfair to you is actually Canada Immigration telling you that they are not entirely convinced that your sister will return to the Philippines after her vacation. Is she single? young? These can be factors that demonstrate that she does not have strong ties to her home country and hence a refusal ensues.

You did not mention how many times you applied for a visitor visa. While the application fee is only $75, in my view save the $75 if you are simply sending the same information over and over again. Do not apply over and over in a short period of time if there are no new circumstances.

However, there is good news ahead. A new bill, called Bill C-283, is now at the committee and may become law soon. Essentially, Bill C-283 lets people post cash as a bond for visitors to come to Canada. Under the proposal, the person using a bond is barred from applying for permanent residence in Canada and they cannot work or study. As well, there is a stipulation that the person must report to a designated officer in their home country within one month of their return or the bond will be forfeited.

By way of comparison, other countries have used the ” bond method” and have been pleased with the results. In Australia for example, they had about 25,000 applicants in the first four years of their program and have had a 2% non-return percentage.

If Canada adopts the same program, it would certainly help people like you who have the means to put a bond and to essentially guarantee that a relative will be able to visit.

Q. I am married to a Canadian Citizen but I do not have status in Canada. I read that there is a new program that permits me to file the case inside of Canada. Unfortunately, before the law was announced, I already sent an overseas spousal sponsorship application. I know I will have to exit Canada to get that visa but I do not want to leave my wife.Also, there is no guarantee that I will be able to return if I leave. Can I have two cases ongoing and file a new application inside Canada?

A. No. The laws do not permit multiple sponsorship applications. You would have to withdraw the first one and start an inland sponsorship if that is the route you prefer.

Q. My niece in the Philippines has just completed her Master degree. She is fluent in English and is about to be married. Is it better if she applies for permanent residence as a single or married person?

A. I obviously cannot advise anyone to get married to boost up their case. However, under the laws, a person who is applying for immigration will obtain additional points for educated accompanying spouses. That is assuming of course that your niece is the main applicant. Your letter does not give sufficient information on her work. She would require at least one year of full time work experience to be eligible to apply.

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 RESIDENCE IS POSSIBLE WITHOUT LEAVING THE COUNTRY

Q. I am thinking about applying for permanent residence in Canada. I am educated with several years of work experience. I also have an aunt residing in Canada. My fiancé recently became an immigrant and we do not know which way is best to proceed – through her sponsorship or applying on my own. I read a previous article from you stating it is possible to remain in the country and not have to leave to process my resident visa. Is that possible and how is it done?

A. I think your first plan of attack is to decide under which category you want to apply. You cannot apply for both. Do you want to apply on your own merit or do you want to be sponsored by a family class member. If the latter, you should know that the fiancé category has been cancelled and replaced by the conjugal partner class. If you marry, your spouse can sponsor you.

If you apply under your own credentials it will take longer but it still appears that you are qualified.

Regardless of the application, yes, it may be possible to remain in the country and not leave. If your are granted a waiver of the interview, the embassy abroad can finalize the case without your attendance. You will of course need to cross the border and ” enter Canada” to land but that is not a difficult task subsequent to visa issuance.

In my experience, your chances of obtaining a waiver of the interview is more likely under the sponsorship category and time of processing is much faster. The final decision is ultimately yours.

Q. I am a failed refugee claimant. I already have been convoked to an interview for removal . I also failed by pre risk removal application. I now want to marry my girlfriend. If I do, will I be able to stay in Canada given the new rules that those who marry and are out of status can apply from inside Canada?

A. No. You appear to be removal ready and I do not believe that immigration will suddenly extend a helping hand this late stage of the game. I also think that immigration will probably have some doubts on the genuineness of the relationship since you seemed to get married only at the end stages. Only you can decide if the relationship is genuine. If so, it is probably best to have your sponsor submit an application from abroad.

Q. I hold a Bachelor degree from the Philippines and worked in Saudi at a hospital for nearly a decade. If I obtain a job offer will this expedite my permanent resident application?

A. Yes, while it appears that your case is strong enough without a job offer, having an approved offer of employment will certainly speed up the case. Remember, that there are different types of offers of employment – some permit you to work before arrival and some do not. You must select the correct type to support your application.

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

GOOD NEWS FOR OUT OF STATUS SPOUSES AND COMMON LAW PARTNERS

In a previous article, we mentioned that the new federal minister of immigration was likely to change immigration rules. It appears that the Honourable Joe Volpe, Minister of Citizenship and Immigration has not wasted much time in his new position.

Effectively immediately, spouses and common-law partners in a genuine relationship with a Canadian citizen or permanent resident, regardless of status, are able to apply for permanent residence.

Under the previous laws, those who were married to Canadians were only able to apply if they had valid immigration status in Canada. As of today, that has changed and those who are in hiding and married to Canadians or residents can come out and formally apply for permanent residence. This is really good news and a step in the right direction.

Since the law is effective immediately, there are questions and concerns regarding those who have already filed an application. Here are some of the most common cases:

Q: I am a spouse or a common-law partner of a Canadian citizen or permanent resident and I reside with my spouse or partner in Canada. I have lost my legal status. How should I now apply to remain in Canada?

A. As of February 18, 2005, all spouses or common-law partners of Canadian citizens and permanent residents can apply in Canada for permanent resident status.You will not be able to work or study until you receive initial approval.

Q: My application was refused. Can I have my application reconsidered under the new policy?

A. No. Refused applicants will need to reapply and pay a new set of fees to be considered under the new rules.

Q: Does this change in policy affect pending spousal applications overseas?

A. No. The new rules will not affect pending spousal applications overseas. Also, Canada Immigration will not transfer applications from overseas to in-Canada processing centres.

Q: I have requested humanitarian and compassionate consideration and my application is pending. How does this policy change affect me?

A. The new rules will apply to applications that are currently in process. The application of the new policy will, in most cases, be automatic. If additional information is required, you will be contacted by Canada Immigration. A sponsorship application under family class will be required to be submitted to be included under the new laws.

Q: I am the subject of a section 44 report. Am I eligible to apply to remain in Canada under this policy?

A. Yes, people who are subject to section 44 reports are eligible to apply for permanent residence. However, people who are found to be inadmissible for reasons other than lack of status will not have their applications for permanent residence approved.

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

CHANGING IMMIGRATION CATEGORY MAY SAVE TIME IN THE LONG RUN

Q. I am a caregiver who just arrived in Canada six months ago. I am aware that I need to work for another 18 months for a total of 24 months before I become an immigrant. The problem is that my work is very hard and my real passion is to work in a hospital. Both me and my husband in the Philippines are head nurses in our city hospital. Can I change my work permit to an immigrant visa?

A. Yes, you can. In fact, it is probably a good idea for you to start calculating the time frames it would take to become an immigrant. You mentioned that you arrived six months ago. There is not guarantee that you will accumulate 24 months of work within the exact same period of time of arrival. For example, what if you change employers or you are released? In any event, assuming you complete the program in two years that does not mean you are an immigrant immediately. You must then apply for permanent residence, complete medicals, family in Philippines also must complete medicals etc… On average you can add about 12 – 18 months to the processing.

Therefore according to my calculation it will take another 2 to 3 years to actually become an immigrant. If you are qualified as a skilled worker now (and it seems you are) then it is a good idea to look into filing a new application directly as an immigrant. It will save you time in the long run. If you can add a validated job offer you could be an immigrant in less than a year. With your reputable credentials it is worth looking into.

Q. I recently passed my interview and my immigrant visa was issued last week. I have another 8 months before I need to go to Canada. My wife is expected to give birth in April 2005 and I want to know how to add the baby to the application. My wife cannot fly at this time so it is not likely that she will land before the birth of the baby.

You have a problem. Read carefully because there are some options and perhaps you should consider professional assistance. In brief, because the visas are already issued then you cannot get them replaced and just ” add the baby” . If you do not land before the expiry date, then the file is closed and you will have to return the visas.If you have the baby and then inform immigration, the same is true. File is closed and you need to start again.If you have the baby and not inform immigration and then land…. this is representation and you will never be able to sponsor the child in future. For this reason it is always a dangerous situation when applicants give birth to a new child between visa issuance and landing.

Q. I am a failed refugee claimant. Can I still apply for an immigrant visa? If I return to the Philippines now will my refugee claim refusal be a negative factor in returning to Canada ?

A. Claiming refugee status from the Philippines is in general not a good idea. In fact, it is quite a bad decision. In 2004 ,. there were a total of 765 refugee claims from citizens of the Philippines and only 4% passed. ( Compare that to 3851 claims from citizens of Pakistan and an 81% success rate from Colombia ) . In any event, if you are deported you will not be able to return to Canada. If you have a strong case, it is indeed possible to return to Canada by filing an ARC application. Be ready to explain why you were so foolish to apply as a refugee. It is sure to be a question at your interview.

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

NEW IMMIGRATION MINISTER MAY CHANGE IMMIGRATION LAWS

Q. I heard that the former immigration minister quit because of allegations that she gave preferential treatment to a select few when others have been waiting months for their own cases. Will the new minister change the rules and have applications processed in a timely manner?

A. As a way of background to our readers, the former Federal Immigration Minister, Judy Sgro, quit her post this month amid allegations that she fast tracked the visa of a Romanian stripper who volunteered at the office during the election. The newly appointed minister is Joe Volpe who is no stranger to immigration issues.

Will he change the laws? It is not known yet but given the fact that the immigration system is in dire need of an overhaul it would not surprise me.

If the laws do change, it is not going to be “easier” to immigrate, in my opinion. If anything, the minister will tighten the rules in order to have less people immigrate and ease the backlog.

As well, there is some talk that Canada will implement a quota system (like the USA) and/or eliminate sponsorship of parents/grandparents in order to ease the backlog.

For those who are qualified now, the rule is the same as it has always been – ” apply now” while the laws are in your favor. If you wait , do not be surprised if the regulations are amended resulting in harsher rules.

*** Update on Current Laws ***

The following are some important changes in the way immigration applications are being processed:

Live in Caregiver Applications – as of February 1, 2005 generic advertising will no longer be accepted. Therefore it is important to submit complete applications that include recruitment efforts and specific details in the ads.

Refugee Claims – While it has been said over and over that the Philippines is not a refugee producing country this item does not apply to most Filipinos except those who are tricked to file a bogus refugee claim just in order to ” stay in Canada”. As of January 1, 2005 the ” Safe Third Country Agreement” was implemented. That is, if you are entering Canada from a safe third country (i.e. USA) you cannot claim refugee status in Canada and must go back and apply in the USA. You will be sent back at the border.

Applicants without status and married to Canadians – current laws prevent applicants with no status in Canada to be sponsored from within Canada. The immigration department has held that just because you are married to a Canadian is not sufficient humanitarian and compassionate of a reason to stay. It appears that this may change and the department is reviewing their policy.

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

CHILDREN CAN APPLY FOR PERMANENT RESIDENCE FROM WITHIN THE USA

Q. My husband and I are citizens of the USA. We were sponsored by our son who has been a USA citizen for many years. The problem is that our two other daughters are left in the Philippines and we all want to be together. My two children left behind are married and they could not be attached to our USA petition. I was told we could not sponsor our children and further that if my USA citizen daughter sponsored her siblings it would take about about ten years. We do not want to wait that long. Can they immigrate to Canada where we can be closer to each other?

A. I heard that is takes about twelve years for a USA citizen to sponsor a sibling. So, if you have information that is takes ten years, that is not bad considering US immigration. However, I must agree with you that it is still far too long a process. My suggestion is to have them apply for immigration to Canada if they are educated and have work experience. On average the case will take a few years and they will become immigrants of Canada. Once they are immigrants they can enter the USA easily and eventually become Citizens of Canada.

Another strategy is to have them apply while in the USA. Are your children able to at least obtain a visitor visa to visit you? If yes, we often file such applications from within the USA. In this way your children can be with you while the application for Canadian permanent residence is in process. It is a somewhat delicate and complex procedure but entirely possible.

Q. I am a live in caregiver in Canada. I am aware that after three years I can apply for permanent residence if I worked for 24 months. I did not work for 24 months and I have been in Canada for over four years now. I now want to apply again . I have a new employer. Can I apply again?

A. I think you are asking ” can I re-enter the live in caregiver program? ” . The quick answer is yes. You are free to apply again under the live in caregiver program and to essentially start again. However, the bigger question is ” will you pass? ” . Since you have been in Canada for four years, your legal status may be in question. You must re-apply for a work permit outside of Canada? Will you be returning to the Philippines or will you process the case in the USA? Do you have a USA visa? As well, even if you apply there will be questions pertaining to your intentions since you did not seem to fulfil the requirements the first time around. I suggest that you seek professional assistance before you leave Canada.

Q. How much does a person need to invest in Canada in order to become a permanent resident of Canada under the business category?

A. There are several types of categories embedded within the business category so it depends. For example, a self-employed individual does not require to show a specific net worth. A person wishing to enter as an entrepreneur does however require to show a net worth of at least $225,000US. The differences between the categories are complicated and it is suggested that you seek professional assistance from a qualified Canadian attorney before you proceed.

Q. If I have overstayed my visitor status in the USA can I apply for immigration status to Canada?

A. Yes. I need to know more about your background but in general, if you have no status in the USA, that does not bar you from applying for immigration to Canada. I think you should be mostly concerned that the USA immigration authorities do not catch up with you. It is not a Canadian immigration concern at this point and if qualified you can apply to immigrate to Canada.

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

CAN DOCTORS IMMIGRATE TO CANADA?

Q. My nephew is a skilled and experienced radiologist in the Philippines. He has a secure job but for the sake of the future of his children he is thinking about immigrating to Canada. He wants to know whether doctors can immigrate to Canada or whether his occupation is a hindrance?

A. In June 2002 the Federal Government changed the way it selected its economic immigrants. Prior to June 2002 there was a list of occupations that were ” acceptable” . Doctors and lawyers were not on the list as Canada felt it had too many of each. Back then if your occupation was not on the list then you would be refused. The system has now changed. There is no more list of acceptable occupations. In general, as long as someone’s occupation is skilled and requires a degree or diploma then that is acceptable. Therefore doctors can certainly immigrate to Canada and given the fact that most doctors has several university credentials that will award them high points on the educational criteria.

Q. I applied to sponsor my wife to Canada but the visa officer was very judgmental at our interview and did not seem to believe anything we said. The officer asked us very personal questions which made be very uncomfortable. I was nervous and the end result was a refusal. I really do love my husband but just because we have known each other for so long does not mean it is a fake marriage. What can be done to rectify this situation?

A. The main purpose of the interview in spousal sponsorships is to determine if the relationship/marriage is a real one or whether the applicant married you to gain admission to Canada only. The officer does have a right to ask personal questions in order to see whether it is a genuine union or not. Although it is a little awkward, answering the questions on intimacy is a good way to indeed prove the bona fide of the marriage.

It appears that you did not satisfy the officer that this was not a marriage of convenience. But it is not over yet. You have a right to appeal the case to the Immigration Appeal Division and at the appeal you can explain why you were nervous and provide evidence of the relationship. You must move fast and appeal within 30 days though.

Q. I applied for permanent residence under the skilled worker category. About six months ago the embassy sent me a letter asking for my original passport to insert the visa. I did that . It is over six months now and still no word on the visa. Do you what the delay is?

A. I cannot say for sure but my feeling is (believe it or not) that they have run out of visas. Your question is very common every year during November and December. Each embassy has a certain amount of visas for the year and it may well be that they have all been used. In all likelihood you should hear from them in early 2005. If it is urgent I suggest you write to them and explain your case. My understanding is that each embassy leaves aside a number of visas for emergency purposes.

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