By Attorney Henry Moyal

CANADA’S LIVE IN CAREGIVER PROGRAM UNDER REVIEW

As many of our readers have heard. The Federal government has plans to review the current abuse and bureaucracy that has tainted the live in caregiver program. The following article appeared in the Toronto Star on November 2, 2004 (reporters M. Leong/S. Simmie)

Nannies to be protected, Sgro vows
Caregiver program under review, minister says

`I don’t want anyone being exploited’ in Canada

Canada’s citizenship and immigration minister says the government is working to ensure that nannies are better protected from exploitation.

Minister Judy Sgro said the Live-In Caregiver Program — under which thousands of foreign nannies enter the country to work every year — is under review. A working group with Human Resources and Skills Development Canada and Status of Women Canada is looking to prevent the kinds of abuse outlined in a Star series examining how some employers and agencies treat their nannies in this country.

“Anything that comes out of this review that makes this program more effective, we’re certainly looking forward to those results coming in,” Sgro said yesterday in an interview. “I don’t want anyone being exploited or ill-treated in Canada … that comes here with certain hopes and certain dreams.”

The series revealed how some nannies are exploited by unregulated agencies that charge them thousands of dollars for a placement — and sometimes don’t deliver on the jobs they’ve promised. The Star also found that some nannies are financially and even sexually abused by their employers.

Sgro had a message for nannies who are being abused: “No one should be afraid of losing their immigration status. If the employer is not living up to their end of the agreement or the provincial labour codes, they should not hesitate to contact HRSDC and seek out another employer.”

She added that the Live-In Caregiver Program is worthwhile and meets the needs of many Canadians.

Chris Bentley, Ontario’s labour minister, said he will work with Ottawa to explore ways of better caring for nannies, adding he would look into the licensing of agencies. “Nobody should be exploited. Period. In the next couple of days, we’ll be contacting the respective ministries in Ottawa and exploring how we can address the issue.”

Bentley pointed to initiatives the province has taken in the last several months to benefit foreign workers, such as stepping up enforcement and pushing employment standards awareness. The ministry announced last week it has translated employment standards brochures, which were only available in English and French, into 18 other languages, including Filipino.

Diane Ablonczy, the federal Conservative party’s senior critic for citizenship and immigration, charged Ottawa has failed to care for this vulnerable group of migrants. She said caregivers changing employers sometimes have to wait three months for a work permit.

“If you’ve got someone here without a job and without resources, you have to do something before several months elapse,” she said.

“It is completely against Canadian values … to just abandon (caregivers) when their employment falls through by saying: `You’re here. Sorry you don’t have a job. Maybe in several months we’ll get around to giving you a permit for another employment opportunity.’

“The federal government needs to act more humanely and more expeditiously to protect people.”

Henry Moyal, a Toronto immigration lawyer, said “the travesty of the Live-In Caregiver Program lies with the bureaucracy.”

He said he receives more than a dozen calls a week from live-in caregivers who have problems with their immigration status. Under the federal program, caregivers are given three years to complete 24 months of work — a problematic time frame, he said.

“It is just too hard to meet the deadline with the roadblocks that Canada Immigration sets up,” Moyal said. “In my opinion, the three-year rule should and must be extended, perhaps to four years. In the alternative, permit officers to exercise discretion for extenuating circumstances.”

Despite the flaws with the caregiver program, Pickering resident Mila Villaruz’s worst fear is that it would be scrapped. “The news in the Philippines is that the Canadian government is going to get rid of this program,” she said.

“Thanks to Canada’s Live-in Caregiver Program, thousands of people … who would not have been admitted to Canada … are now either permanent residents or Canadian citizens.”

Villaruz has employed three foreign live-in caregivers since 1996 to help care for her three children and has had family come here through the program.

“The first caregiver was a graduate nurse from the Philippines. She became an immigrant, sponsored and married her fiancé. They both work as registered nurses and … have a daughter who is turning 2 next month.”

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 HAS ITS RESTRICTIONS

Q. I was a permanent resident of Canada in the early 1990’s. After settling in Toronto for almost a decade I married a USA citizen and moved to New York. I have not been back to Canada for about three years.Unfortunately, my wife passed away and I now wish to resettle in Toronto. I never became a Canadian Citizen. Am I still a permanent resident?

A. My reply is yes and no. Yes, you are a permanent resident until the immigration department decides that you are not. This is usually in a formal hearing before the immigration court. Your permanent resident document (which is a piece of paper) should have been replaced by the “Permanent Resident Maple Leak Card” . Applications to obtain the PR Card can be mailed in Canada and takes six months to process. It has your photo and biometric information on it to avoid fraud. The problem is however that if you have not been in Canada for so long then they may not issue you the card and deem that you are not a permanent resident.

The benefit of having the PR Card is that you can travel into Canada.Permanent residents of Canada cannot use the old landing documents to enter Canada by boat, air or commercial vehicle. HOWEVER, there is a loophole. You are able to drive (or walk) into Canada in a private car with only the old permanent resident document.

Another issue is that the new laws require residence of 730 days within five years (s. 28(2)(a) of the Act). That means that you can technically be outside of Canada for three years with no problem. I cannot determine exactly how many days you resided in Canada and you should seek professional help to determine the calculation. If you are beyond the years, you may not be a permanent resident and may have a problem.

If you cannot enter Canada and were refused a visa to enter you have a right to appeal to the Immigration Board in Canada within sixty days of your refusal pursuant to Immigration and Refugee Protection Act. At the hearing you have the right to argue humanitarian and compassionate grounds such as the loss of your wife. Good Luck.

Q. I am a model in New York. I have been in touch with a company in Canada who wants to hire me to design some clothes and work on a cover of a local magazine. Do I need a work permit?

A. You have not indicated your status in the USA. If you are a USA citizen it may be possible to enter Canada to work through NAFTA free trade depending on your education and duties to be performed. If you are only a visitor in the USA you will need to obtain a work permit.

Q. I want to apply for permanent resident status but not include my spouse in order to reduce the amount of settlement funds required. Is this possible? does my husband have to immigrate with me?

A. You must declare your spouse on the application. Your spouse does not need to immigrate but still must comply with all requirements including application forms, photos, medicals and police clearances. In reality the application is identical except that you do not pay the government fees for your spouse (because he is not getting a visa). Most people simply have their spouses included because all the work is the same and in the long run saves time since you will have to pay the government fees later when he is sponsored.

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

CRUCIAL TO ALWAYS MAINTAIN IMMIGRATION STATUS

Q. I am a Filipino citizen and I am working temporarily in the USA on H1B status. I came to Canada as a visitor and bumped into my high school classmate at a party in Toronto. We started to date and eventually married in Toronto. I was only given two months to stay as a visitor in Canada and I did not renew my status. I am assuming that I am now out of status. My wife sponsored me from inside of Canada but we have not heard from the immigration authorities yet.

A. It is important to always keep your status (whether it is as a visitor , worker or student) intact and valid. This is especially important when a spouse is sponsoring her partner from inside of Canada because one of the crucial elements of that type of case is that the applicant must have valid status. It sounds like you did not have status when you applied and therefore in all likelihood your application from inside of Canada will be refused.

Since you have a work permit in the USA and reside in the USA it is better and faster in my opinion if the sponsorship application is sent “outside” of Canada. In this case in NY, USA.

Q. I am a live in caregiver in Canada. I worked for over two years within the last years as per the live in caregiver program. I applied for permanent residence over 8 months ago and have heard nothing. My work permit has expired long ago and I want to continue to work. How long will it take to obtain permanent residence?

A. I am very concerned regarding the details your describe. Are you saying that you did not renew your work permit? Why? This is very serious as pursuant to the live in caregiver program you may be refused if you have lost your status.

As well, you must be careful with respect to which type of work permit you applied for. If you only applied for an ” open work permit” at the time of the permanent resident application that is not good enough. I would obtain professional advice to determine how best to rectify your situation.

Q. I am a USA Citizen. I want to sponsor my brother to the USA but I understand it takes about ten years to process. Mt brother is over 40 and is a professional. If he arrives in ten years he will be close to retirement and will unlikely find a job. I am interested in having him apply to Canada.I read that the processing times are not as long as a decade.

A. While many complain over the backlog at Canada Immigration and while many complain that it takes too long to process cases, I can say with certainty that the times are much less than a decade. You have not provided information on where your brother lives nor his background. The processing times depends on which embassy is handling the file. In general, if he is educated and has work experience with a high proficiency in English then he will likely qualify. A detailed resume would help to assess his credentials.

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

MISREPRESENTATION UPON LANDING CAN LEAD TO DEPORTATION

Q. I am a Canadian permanent resident for nearly a year now. I applied as an independant immigrant as single. Before I arrived I married my wife. I was going to inform the immigration officer at the embassy but changed my mind because my wife did not want to immigrate so soon. I now want to bring her to Canada but I heard that it could cause a problem for my status. Is this true?

A. Yes, it is. Technically, you have misrepresented yourself and you landed in Canada as a single person when you were really married. The fact that your wife did not want to come to Canada is fine. She did not have to.Immigration does not necessarily care if she arrives or not but she must be declared. She would have to pass a medical and criminal check before you would obtain your visa.

If you sponsor her now, you will likely be refused at the end (although CPC Mississauga may approve the sponsorship) . Under current laws an undeclared family member cannot be sponsored and is not considered a member of the family class. Your case is not uncommon and sponsorships of this type (and for undeclared children) are being appealed to the Federal Court. There is no definite decision now on how Canada Immigration will resolve these cases.

Finally, there is always the issue that you misrepresented yourself at the border. Therefore, it is possible that a report will be issued against you that may lead to deportation proceedings.

Q. I am a live in caregiver in Canada . However, my employer expects too much of me and often thinks that overtime is all part and package of my job.I work nearly 60 hours per work and at the end of the week I am completely exhausted. I do not want to complain because I’m afraid that he will fire me. Will I have to return to the Philippines if that happens?

A. If you are in Canada on a valid employment authorization then you do not have to return home if you leave your employer. If that happens, you must find new employment and apply to Canada Immigration for a new work permit. Regarding your work schedule, I suggest that you speak to your employer and make him aware that you are aware of your rights. You should also call the Ministry of Labour to get specifics on vacation pay and wages worked for overtime. As far as I know, you deserve to be paid for overtime for any hours worked over 44 hours per week.

You should also be aware that your complaints are not uncommon and unfortunately many caregivers are subjected to the same work load and abuse.Many are also afraid to complain. Hopefully, by being armed with some information and knowledge of your rights your employer will respect your job and ease your work schedule. Good luck.

Q. Do you know if there is any update on the law that allows Canadian Citizens to sponsor any one relative regardless of the relation?

A. As was mentioned in a previous article, a prior Minister of Immigration first thought of introducing a law that permitted a “one time ” chance for Canadian Citizens to sponsor any one relative abroad. Her announcement sparked alot of interest and excitement because it meant that brothers and sisters could be sponsored. Unfortunately, the proposed change in the law was cancelled and there has been no news on ever reviving it.

However, that does not mean that brothers and sisters cannot immigrate to Canada. It only means that they need to qualify on their own as skilled workers (for example if they are educated and skilled).

Q. I am a visitor in Canada and I recently received a notice from the local Canada Immigration Centre that my visitor visa extension request was denied. They told me to leave immediately. What does immediately mean? I need to buy a ticket and settle some affairs here. What will happen if I do not leave soon?

A. It appears that the Canada Immigration Centre has determined that your purpose for entry into Canada as a visitor has been satisfied. In my experience, the letter you received is a form letter which may or may not be relevant to your situation. It no doubt quotes that you are no longer a bona fide visitor and that you must leave Canada immediately by giving the included blue voluntary departure notice to the Immigration Authorities upon your departure.

Although there is no specific date mentioned and there is no specific time frame defined under the word “immediately ” my experience with speaking to immigration officers is that you should leave Canada within 30 days. If you do not, enforcement action may be commenced against you.

It you are interested in immigrating to Canada I suggest that you look into other options that may be available to you to become a permanent resident 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

WORKING ILLEGALLY PUTS EMPLOYER AT RISK

Q. I am a Canadian born Citizen and have hired a Filipino caregiver recently. Actually, I have not officially hired her yet but her case is in process. I am told that it would take at least eight months 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. I do not know whether your caregiver has a USA visa so perhaps that is the concern.

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 am a live in 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. I am a Canadian lawyer (not a USA lawyer) and I can tell you that 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.

I believe there is an au pair program in the USA but there is no special and distinct program that leads to a greencard. I suspect that is the reason why Filipinas are attracted so much to Canada.

Q. I applied as a refugee in Canada three years ago. I was denied two months ago. What can I do 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.

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

USE CAUTION WHEN SPONSORING UNDER ” CONJUGAL PARTNER” CATEGORY

Q. I am in a serious relationship with my boyfriend in the Philippines. We have lived together for some time but I am not sure if we should marry or should I sponsor him as a conjugal partner. I have heard stories that people were refused under the conjugal partner category and I do not want to make the same mistake. And what if we apply as conjugal partners first, can we then marry if the case is refused?

A. You have touched upon a new area of law that even the courts are having trouble deciphering. By way of background, a Canadian citizen or resident is now eligible to sponsor their ” conjugal partner ” . Before June 2002 this was not possible. Even now, ” conjugal partner ” applications can only be filed outside of Canada. There is no ” in Canada conjugal partner” class.

The definition of conjugal partner is somewhat vague and is described as a union of two people who have not lived together for a year (because that would be common law partner) and are in a ” marriage like” relationship. The parties are interdependent and are exclusive to one another.

As can be seen it is hard to determine who is in such a relationship or not? If a couple are miles apart and have never lived together, can they be conjugal partners? perhaps yes and perhaps no.

The immigration manual describes several factors that should exist within such a relationship but providing evidence of same is not an automatic acceptance of the case. In recent months, several cases have been refused by Canadian embassies abroad and as of last week there were 20 cases in the appeal system in Ontario whereby conjugal partners who were refused subsequently married.

Does subsequent marriage automatically rectify the refusal? We will see, we have been advised by the Immigration & Refugee Board in Toronto that all cases have been removed from the scheduling unit in order for the appeal division to decide on a few test cases. The decisions are expected to be released soon.

Q. I am asking a question on behalf of my brother in the Philippines. I am a US citizen and want to help him immigrate to Canada. Can I sponsor him even though I do not live in Canada? I am able to support him in any way I can.

A. No. You cannot sponsor him on two grounds. Firstly, Canada’s immigration law do not permit sisters to ” sponsor” a brother. Secondly, ” sponsors” must be residing in Canada.

However, it is not the end of the road for your brother. If he a university graduate with experience he may be able to apply for immigration on his own merit. I would of course need to obtain more information on his background to provide an opinion. Forward a resume by email or fax.

Q. I am living in New York for 10 years now. I claimed political asylum in 1998 as I did not want to return home where I had no job. I was denied. I am thinking of going to Niagara Falls Canada-US border and making a refugee claim in Canada. what do you think ?

A. I do not have to think about it. Your case a refugee claim is weak and it appears you are only claiming refugee status in Canada as a way to enter the country. The Philippines is not a refugee producing country and the refugee system is not designed to protect people who simply have nothing to do. And from country do you want to claim against? the US? Philippines? The refugee system is to protect genuinely persecuted people. I do not see how that applies to you.

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

IMMIGRATION PROCESSING EXPEDITED WITH JOB OFFER IN CANADA

Q. My brother is thinking about immigrating to Canada. He and his wife are university graduates and I was told by others that he scores sufficient points. But how long will the processing take? He has a teenage son and he does not want the child to start university in the Philippines only to stop and then enter a university again in Canada. I own a restaurant and it would be nice if they would arrive soon to manage it.

A. Processing times is by no means a science. While anyone can simply search the internet and Canadian government site to see ” standard processing times” , how does this help YOU? For example, if Manila is processing 60% of its cases in 3 years, does that mean your case will take that long? No.

As well, we have experienced some erratic behavior on the part of the Canadian embassy in Manila that has left us scratching our heads. In particular, Manila is processing skilled worker applications in several years but apparently is expediting cases that have a validated job offer. In the past 4 months we have sent several skilled worker cases to Manila with a job offer in Canada. All cases were scheduled for interview in TWO MONTHS. At this time all cases have proceeded for medical and our clients will some become landed.

Q. I am a Citizen of Canada and currently living in San Francisco, California. I have met an American girl and we plan to marry soon. My employment contract will end in six months. Can I bring my wife to Canada with me? Can I start the case now?

A. Normally, an individual who wishes to sponsor a member of the family class (for example, a spouse) must reside in Canada. However, there is an exception in your case. In other words, if your intention is to return to Canada after your wife’s visa is issued you may apply now.

Applications of this kind usually take about 6-9 months and therefore if your future spouse requires a visitor visa to enter Canada she must wait outside of the Canada until her immigrant visa is issued.

Q. I am a permanent resident of Canada. Last year I was travelling in New York and lost my landing document. Where do I get a replacement? How long does it take.

A. According to our experience, your original color 8 x 14 “Record of Landing” document or IMM1000 cannot be replaced. You must apply for a Certified Copy of your Record of Landing. The cost is $30 and it usually takes 3 months to obtain.

However, you have not mentioned how long you have been out of Canada. The paper landing document is not valid for travel unless you are traveling by car. You now need to apply for a permanent resident card.

Q. I am visiting New York at the present time. My husband completed his Masters degree seven years ago and is a Microsoft Certified Engineer working in Doha, Qatar. We wish to apply for permanent residence in Canada but I do not want to leave the USA. Do I have to fly to Qatar for the interview?

A. We would of course need to know more information in order to assess your case but it seems that your husband is a qualified applicant. The place of interview does not necessarily have to be in Qatar and it will depend on the visa officer as to whether you must attend the interview. It may be possible to be interviewed in New York depending on your stay within that jurisdiction.

Q. I applied for a student visa to study at an educational institution in Toronto. Classes were to commence in September 2004 but my visa was recently refused by the Canadian Embassy. I already paid 25% of the tuition fee for the school. What can I do?

A. Firstly, if you were refused a student visa you have the right to appeal the decision to the Federal Court of Canada. This however may prove to be a timely and costly procedure. Regarding the tuition fee, the law requires that the educational institution return the entire deposit (less administrative charges, approximately $100) to you since you did not attend the course. Some students are not aware of this law and therefore demand your refund or seek 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

IMMIGRATION RULES CONFUSE THE PUBLIC REGARDING LAWYER VS. CSIC CONSULTANT

A few months ago the Canadian Government passed a new law 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 , or

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.
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

CAREGIVERS MUST BE COMPENSATED FOR OVERTIME WORK

Q. I am a live in caregiver and enjoy reading your article. My problem is that I love this country and I am glad to have this opportunity to better my life. However, my employer expects too much of me and often thinks that overtime is all part and parcel of my job. I work nearly 60 hours per work and at the end of the week I am completely exhausted. I do not want to complain because I’m afraid that he will fire me. Will I have to return to the Philippines if that happens?

A. If you are the holder of valid employment authorization then you do not have to return home if you leave your employer. If that happens, you must find new employment and apply to Canada Immigration for a new work permit. Regarding your work schedule, I suggest that you speak to your employer and make him aware that you are aware of your rights. You should also call the Ministry of Labour to get specifics on vacation pay and wages worked for overtime. As far as I know, you deserve to be paid for overtime for any hours worked over 44 hours per week.

You should also be aware that your complaints are not uncommon and unfortunately many caregivers are subjected to the same work load and abuse. Many are also afraid to complain. Hopefully, by being armed with some information and knowledge of your rights your employer will respect your job and ease your work schedule. Good luck.

Q. Do you know if there is any update on the law that allows Canadian Citizens to sponsor any one relative regardless of the relation?

A. As was mentioned several months ago, the Minister of Immigration first thought of introducing a law that permitted a “one time ” chance for Canadian Citizens to sponsor any one relative abroad. Her announcement sparked alot of interest and excitement because it meant that brothers and sisters could be sponsored. Unfortunately, the proposed change in the law was cancelled and there has been no news on reviving it. It was mentioned in the NDP party’s election campaign but no news yet from the Liberals.

Q. I am a visitor in Canada and I recently received a notice from the local Canada Immigration Centre that my visitor visa extension request was denied. They told me to leave immediately. What does immediately mean? I need to buy a ticket and settle some affairs here. What will happen if I do not leave soon?

A. It appears that the Canada Immigration Centre has determined that your purpose for entry into Canada as a visitor has been satisfied. In my experience, the letter you received is a form letter which may or may not be relevant to your situation. It no doubt quotes that you are no longer a bona fide visitor and that you must leave Canada immediately by giving the included blue voluntary departure notice to the Immigration Authorities upon your departure.

Although there is no specific date mentioned and there is no specific time frame defined under the word “immediately ” my experience with speaking to immigration officers is that you should leave Canada within 30 days. If you do not, enforcement action may be commenced against you which can include a warrant for your arrest.

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 CAN BE OBTAINED WITH $125,000 INVESTMENT

Q. I have read a few of your articles in the past and several times you have indicated that education and work experience are keys to immigration to Canada. What if a person is not highly educated?I am an undergraduate and have several businesses in the USA and in the Philippines. I own a few franchises and my net worth is in the millions. I am not highly skilled but I believe my business experience should count for something. I am nearly 55 and even if I immigrate to Canada I do not think anyone would hire me at my age.My intention is to open a business in Canada. Can I immigrate based on my business portfolio?

A. Absolutely, in addition to the skilled worker category there is a separate category for business people. The information provided leads me to the opinion that you actually have a very strong case as a business applicant.

If you wish to immigrate to Canada as an investor you need to invest $125,000 and demonstrate a high net worth. There are no conditions imposed on investor immigrants and you do not need to open a business if you do not want to.

Q. I am very concerned about my sister’s case. My sister came to Canada as a visitor over 4 years ago. After immigration refused to extend her visitor status she applied for refugee status but she never appeared for the hearing. That was 2 years ago and she was working in a bakery until last week when she was caught by the immigration police. She is now in a downtown jail. How can we get her out?

A. You have the right to be concerned about your sister. In fact, you should be very very concerned. Your question raises many serious issues in the law which can be very complex. I will certainly try to cover the main areas.

Firstly, if a person does not appear for their refugee hearing the case is deemed abandoned. Once a case is abandoned the conditional departure order against your sister automatically became a deportation order. That means if she did not leave the country there would have been a warrant for her arrest.

I personally have concerns as to who was providing her with such advice. Was it a lawyer? or a consultant ? Philippines is not known as a refugee producing country and making false refugee claims may only jeopardize one’s status in the long run.

Secondly, once the immigration department was aware of her whereabouts they immediately noticed that there was a warrant for her arrest 2 years ago. Accordingly, they put her in detention (not really a jail). If a person is in detention they must be brought forward before an adjudicator to determine if she should be released. These are called detention review hearings. You should find out when the next detention review hearing is and be prepared to offer a bond for her release.

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 NOT LOSE HOPE IN IMMIGRATION SYSTEM

This week we are taking a break from the usual flood of immigration Q&A queries to devote the article to one caregiver who has paid her dues for 14 years in Canada and was nearly removed from Canada last week.

Ms. Rosales (not her real name) entered Canada in early 1990 from the Philippines to work as a caregiver. Ms. Rosales left her stable job as a nurse in Manila in order to work abroad to earn more money to support her husband and three teenage children.

Immigration rules at the time of her entry required her to work for two years before she was able to apply for permanent residence. She did. She applied and was approved in principle pending medical examinations of her dependants in the Philippines. In 1993 her family completed the medicals.

In 1995, several attempts were made to finalize the application but it seemed that the immigration department either lost the file or were too lazy to notify Ms. Rosales. By that time, the medicals expired and the immigration department demanded that everyone undergo another medical.

Unfortunately, over six years passed since Ms. Rosales left the Philippines and her husband left the family home and abandoned the children. Under immigration law, ALL family members must undergo a medical and therefore this caused a predicament. The husband could not be found and on the other hand immigration would not issue immigration visas.

To make matters worse, Ms. Rosales’ children were now adults and could not be included in the application.

After 14 years of working in Canada, Ms. Rosales received a notice to leave Canada. She then hired a consultant who for some strange (incompetent) reason charged her a small fortune to apply as a visitor to Canada. That application was quickly refused.

Ms. Rosales then approached a paralegal who contacted the immigration department explaining that she required to work and wanted to reinstate her work permit. Again, that application was quickly refused.

Ms. Rosales then approached our firm who investigated the matter and discovered that the decision to remove her was in violation of the Immigration Act and s.44 of the report made against her was invalid. We attended the hearing last week armed with information supporting that the approval of 1993 be reinstated.

We received the approval this week and Ms. Rosales will become an immigrant soon. Unfortunately, her children are married and not eligible to join her but the lesson to be learned is that there is always hope in the immigration system and sometimes justice does prevail.

****** TESS, APO HIKING IS ON TOUR IN THE USA. I RECENTLY MET THEM AND I WOULD LIKE THE PHOTO IN THE NEXT ATTACHED INSERTED HERE****** THANX.

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

EDUCATION AND WORK EXPERIENCE ARE KEYS TO IMMIGRATION

Q. I live in New Jersey. I want my brother 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 Kuwait. 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. Even if you resided in Canada you would not be able to sponsor him. Canadian immigration laws does not permit siblings from sponsoring 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. From the limited information provided, it appears that your brother 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 ab anitio (from the start) 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.

Q. I already submitted my application for Canadian permanent residence at the Canadian Consulate in Buffalo over 3 years ago. I recently married but did not inform the consulate. My husband is in the Philippines and it is unlikely he will be able to attend the interview in USA. What should I do? Should I transfer the file to Manila?

A. My first question is why your case is taking so long. The Canadian Consulates in USA are quite efficient and it is rare for a case so take so long from the USA. Secondly, you must inform them of your marriage immediately because that will have an impact on the case. Finally, transfer of files are not permitted anymore. You did not mention if you have a scheduled interview date or just speculating. Your case involves several strategic issues and therefore your best option is to contact a qualified Canadian Immigration Attorney to take over your file.

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

ONLY HIRE IMMIGRATION CONSULTANT OR LAWYER ON GOVERNMENT REGISTRATION LIST

The Canadian Federal Government has finally enacted laws on immigration consultants after years (if not decades) of delay and procrastination. Lawyers and politicians alike has constantly lobbied the government to regulate consultants who often charge exorbitant fees, provide inefficient service and cheat clients out of money.

While the best scenario would be to eliminate the consultants altogether (which is the practice in the USA) the Canadian government has taken one step forward by passing a new law requiring all representatives to be on an approved list. Lawyers are automatically on the list and are automatically registered with the government via provincial licences. However, consultants were never regulated and had free reign to do what they wanted.

Effective April 13, 2004 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 , or

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. At the present time, only 100 consultants are registered.

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 well, as one peruses the companies in Balita and other local papers 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.
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. It is easy to check.Simply call 416 947 3318 ask the law society.
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 the approved government CSIC list. To check if they are approved consultants call 416 572 2800 or check www.csic-scci.ca

If they are not lawyers nor on the CSIC list, do not hire them as they cannot file your case.

Let’s hope the new laws will stop those from being cheated as is so common by unscrupulous consultants.

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

CONSULTANT STEERS APPLICANT IN THE WRONG DIRECTION

Q. I came to Canada about 2 years ago as a visitor. Before leaving the Philippines I always intended on immigrating to Canada so I brought with me all my NBI police clearances, Master degree and work experience letters. I have over 10 years as a teacher in the Philippines. My mother is a Canadian citizen and she referred me to a consultant. The consultant reviewed all my documents and made me sign a form that I will apply for refugee status. My hearing was last week and I was refused. Now what do I do? All I want is to stay in Canada?

A. From the information provided, my opinion is that the consultant steered you in the wrong direction. It is mindboggling that there are still consultants out there who have the audacity to cheat highly skilled people like you and to convince them that the best thing is to file a refugee case.

You are highly qualified as a skilled worker and should apply as an independant. Filing a refugee case is probably the worst thing you could have done. If you would applied properly as an independant from the start you would perhaps be an immigrant by now.

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 eight 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 eight 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. Can you please explain the difference between Canadian immigrant status and Canadian Citizenship? How does one become an immigrant? how long does it take to become a Canadian Citizen? How easy can an immigrant or citizen enter the USA?

A. A person is able to obtain permanent residence in Canada several ways. Permanent residence or immigrant status or landed immigrant all mean the same thing and is equivalent to a greencard in the USA.

In order to become an immigrant one can apply for example as a businessperson or be sponsored or as a skilled worker. Once a person is a permanent resident, they still retain the citizenship of their home country and must show that passport plus immigrant status to enter the USA. Many people live their entire lives by remaining immigrant status and not becoming a Canadian Citizen.

After 3 years of being a permanent resident, an immigrant of Canada is eligible to apply for Canadian Citizenship and obtain a Canadian passport.

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 $200,000US. 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. 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

NO QUOTA SYSTEM IN CANADA FOR WORK PERMITS

Q. I am skilled professional living in Philadelphia. I have good prospects of landing a job in Canada for a reputable company. As my wife recently gave birth, I will not be able to formally apply for a few months. Do you see any problem arising out of my delay? I am afraid that the quota on work permits will expire for the fiscal year 2004 just like they did in the USA recently for H1B visas.

A. I am aware that the USA Citizenship and Immigration Services capped its H1B visas this year and are no longer accepting applications for 2004. However, Canada works differently. Canada does not impose ” caps” and does not have quota systems. Basically, if a Canadian employer needs you and can prove it you are in and you will be issued a work permit. The crucial criteria is need and the fact that you will not displace other Canadians. It does matter on how many visas were issued to others.

Q. I am in the process of sponsoring my father and sister from the Philippines. I earn over $50,000 per year but have a large mortgage on my house. My sister just turned twenty years old but is not going to school and is looking for work. If my father immigrates to Canada we do not want to leave her behind.

A. You do not have to. >From the information provided, your sister and father are eligible to immigrate. They will of course need to comply with medical and security clearances. Your income of over $50,000 is well above the low income cut off for a family of three and you do not need to worry about your large bank loan on your house since that debt is not considered relevant.

Finally, your sister does not need to be in attendance at school to qualify. Applications filed will be under the new immigration laws. Current laws regard dependant children as a son/daughter under 22 years of age.

Q. I am a new immigrant to Canada. I lived in Saudi Arabia working in a hospital for three years and my wife was working for a national airline. We hired a local woman to care for our newborn baby who is now years of age. We would like to have her come to Canada to work for us. How do we approach this case.

A. You will need to sponsor her under the Live in Caregiver program. Before you do so you should make sure that she will qualify. There are basically two steps. First you must obtain an employment validation from HRDC in Canada and secondly the woman must obtain a work permit. To obtain a work permit she must speak English , have a high school diploma and work experience for at least one year.

Q. My husband and I want to sponsor my eldest sister who lives in Cebu. She is a widow and over fifty. She has tried to come to visit me in Canada but has been refused a visitor visa.

A. I can only assume that the visa officer was of the opinion that your sister would likely stay in Canada after her “visit” and therefore was not a genuine visitor. Perhaps as a widow who is 50 years old she does not have sufficient ties to her home country. Unfortunately, the family class category is restricted to immediate relatives and you cannot sponsor a sister.

Q. I am a Canadian Citizen living in Burlington. I am a dentist who is seeking to retire soon. I want to move to the USA. I have some colleagues who live in Florida and have advised me to move there. How can I work there?

A. I would suggest that you obtain a job offer from a colleague and apply under the NAFTA free trade agreement.

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

CANADIAN CITIZENS DO NOT NEED TO RESIDE IN CANADA TO SPONSOR SPOUSES

Q. I am a Canadian Citizen. I went to visit my sister in New York 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 on the condition that they intend to return to Canada when the spouse becomes an immigrant.

Secondly, 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 husband is over 60 years old and we have unfortunately been informed that he has renal kidney failure and may need an operation. My spousal sponsorship application is in process at the Canadian Consulate in New York, USA and he has been issued a medical examination form. What will happen to the application when they discover his medical condition?

A. While I am not a medical practitioner, I cannot comment on the severity of his medical condition or what treatment is available. However, as an immigration attorney I can tell you that under the new regulations your immigration application cannot be refused due to his medical condition. In order for Canada Immigration to refuse an applicant on medical grounds, the applicant must be either medically inadmissible because the condition is a threat to others (communicable disease) or the condition is one that would cause excessive demand on Canada’s health services. Under the new rules, a spouse cannot be refused on the latter ground.

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

FAILURE TO DISCLOSE CHILDREN IS A BAR TO SPONSORING THEM IN FUTURE

Q. I am Canadian Citizen living in Barrie. I have been in Canada for ten years. My sister sponsored me to Canada in the late 1980’s together with my mother.I was very young at the time and was ashamed to tell anyone that I had a child. I was not married so I did not think twice about lying. As well, the mother of my child would never have permitted me to take the child out of the Philippines. The mother has now contacted me and has told me that she is sick and wants the child to live with me in Canada. Can I sponsor my child?

A. My quick answer is NO. While it is very unfair, the current rules of immigration under regulation 117 states that technically that child is not a member of your family. The reason is because you did not declare him when you immigrated to Canada and the child was not medically examined nor declared.

When you entered Canada you declared you were single with no dependants and that was a lie. Immigration Canada is now (it seems) under the new laws trying to penalize you for lying. That being said, your sponsorship application will likely get refused. If you are willing to fight it out, there may be a possibility to appeal the case to the immigration board and the Federal Court. This new law is rather new and it is affecting many people. Some lied on purpose and some lied not knowing that they had to declare a long lost child , for example who was under the custody of another spouse. It is highly unjust and perhaps unconstitutional. There are some cases before the courts so the end result is not so clear. We will have to wait and see how the court handle this issue.

Q. I am in Canada as a visitor. I have an employer to sponsor me to work as a live in caregiver. We hired a consulting agency who submitted the case to the Canadian Consulate in the USA. However, when I went to the US consulate to get a visa for the interview I was refused. My consultant wrote a letter to Buffalo requesting that the file be transferred to the local immigration office in Toronto. The problem is that my visitor status is expiring and I am worried that it will not be renewed by the time my case is complete.

A. Your visitor status is the least of your problems now. You need to go back to your consultant and get information on how he/she is of the opinion that your file can be transferred from USA to Toronto. It can’t!

Your work permit application must be submitted at an office outside of Canada. If you can’t get into the USA you need to request to have the file transferred (very hard) or start again or postpone. But certainly it cannot be done in Toronto. If so, why would you send the case to the USA in the first place!

You need to get a handle on what is going on and most importantly hire someone who knows what they are doing.

As an aside, it should be noted that the Canadian government is administering the tests to regulate consultants in the next few months. Let’s hope the new regulatory provisions weed out the incompetent.

Q. I am in Canada as a visitor and I want to enroll at York University. Can I send my student visa application to the Case Processing in Mississauga or does it have to processed abroad.?

A. Initial student visas cannot be issued at the Case Processing Centre inside Canada. Initial study permits must be issued at a Canadian Consulate or Embassy abroad. After that, you can apply for an extension at the CPC in Alberta not CPC Mississauga.

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