By Atty. Henry Moyal

A GUIDE ON ENTERING CANADA – NAVIGATING THE MAZE OF OPTIONS

Q. I am a nurse and currently living in Saudi Arabia in a worker’s compound. We cannot leave the compound unless we are accompanied by our employer. I work over twelve hours per day and it is not easy to simply travel to the Canadian Embassy to file an application. Internet capability is also difficult to get when I finish work. I have relatives in Northern Canada and they always encourage me to apply to come to Canada but I do not know what to do. From what I have read there are several types of categories but I am not sure what is best for me. Can you help?

A. I agree that most people find the application process to Canada overwhelmiing. There are so many categories, so many forms and many rules. As well, as soon as you think that you qualify for one category then all a sudden one requirement puts you in doubt and you look to another option. I also must admit that the requirements over the years have become more complex. There was a time when anyone, any skill or occupation had a good chance of coming to Canada. Nowadays, one must be very careful in selecting the appropriate category that mostly fits your qualifications and your goals.

As a start, you need to decide if you are seeking to enter Canada on a temporary basis or a permanent basis. In other words, do you want to simply visit or work temporarily in Canada or is your intention to live your life in Canada as an immigrant? If you are seeking to only visit Canada then you should obtain an original notarized letter of invitation from your Canadian relative/friend detailing your plans and your stay. You can then apply at the nearest Canadian Embassy. If you are seeking to work in Canada you must first obtain an offer of employment from a Canadian employer.

If you are seeking to become a permanent resident in Canada the applications become more cumbersome. While a job offer would help it is not always required. If you are an educated and skilled professional, it may be possible to apply without the assistance of an employer. In some cases, a relative in Canada can sponsor you depending on the place of residence and degree of relationship. If you have training caring for children or the elderly there is another option available – the live in caregiver program. This is a unique program which allows you to automatically apply for immigrant status after two years of work in Canada. It should be noted that most permanent resident applications are now centralized in Canada. In other words, regardless of where you live in the world, the application first must be filed inside Canada. It is therefore strongly suggested that you contact a Canadian lawyer living in Canada for eligibility and processing.

Q. I’m a live in caregiver in Canada. I arrived three years ago and recently completed my required work in order to apply for permanent residence. I was married in 2004 to a man for a short period of time. Shortly after our marriage, I went to work in Saudi. I have lost contact with him and do not know his address. When I applied for my work permit I stated I was single since I have never really felt married. I do not know what to now say to immigration when I apply for permanent residence. A friend of mine has told me to write down the whole story and explain it to Canada Immigration and perhaps they will forgive me.

A. They may forgive you but that does not necessarily mean you will be successful in obtaining permanent residence. They may have compassion for the innocent lie made when you applied for your work permit but Canada Immigration is not likely going to exclude a family member because you say that you can’t find your husband. The fact is that your spouse is still your husband. You are not divorced or annulled and therefore you are still legally married. If you are married you must declare your spouse on the application. Once he is declared he must complete his own application and undergo a medical exam. This is the law regardless of whether he is accompanying or non-accompanying.

You have stated that you cannot find him, so the question is how can he complete applications? The answer is that you need to strategize now because simply writing a letter to immigration explaining the circumstances will likely not be fruitful. If there has been marriage breakdown then you should consider obtaining a divorce. A divorce will exclude the spouse from the application. If you do not know his address then you can bring a motion for substituted service to satisfy the court. Remember, your spouse does not have to agree to the divorce – he only needs to be notified.

Q. I have been working in Canada as a medical lab technician for over one year. I do not have any relatives in Canada and my English level is moderate. I want to apply for immigration to Canada but my occupation is not on the demand list. I am also concerned that I will not have sufficient points to pass because my English level is not fluent. My employer has told me that he cannot extend my work permit indefinitely and that he prefers that I be a permanent resident. I do not know which approach to take. Should I marry a Canadian? Is that faster?

A. I am not sure if you are asking about marrying a Canadian because you are genuinely in a relationship or because you think that it is the easier way to become an immigrant. If you are not in a genuine relationship then do not marry and do not submit a sponsorship application. If you are in a serious relationship, then yes, a family class application will be faster.

Nevertheless, you do not seem to be aware that your occupation is not required to be in demand in order to apply for immigration. You have been working in Canada as a skilled worker and therefore you can apply directly for permanent residence now. Your English does not need to be fluent.

Q. I applied to sponsor my wife and the application was refused. I appealed and won. The file is being processed again but I just found out that my dependant daughter had a baby out of wedlock. Can I bring my grandchild to Canada with my daughter?

A. If your daughter is single and has a child you can add the grandchild to the application. However, since your child has a child you must meet the income requirements for the family size. When a person sponsor’s a spouse or child – no income level is required. In your case, you must meet the financial criteria (because you have a dependant child who has a child) or else you might be refused – and facing another appeal.

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

By Atty. Henry Moyal

FIRST CANADIAN SANCTUARY CITY ANNOUNCED

Toronto has made history by announcing that it is now a “sanctuary city” to illegal immigrants. It is the first of its kind in Canada. Its mandate and formal policy is to allow undocumented immigrants (commonly known as “illegals”) to access services regardless of immigration status.

In an overwhelming majority vote the city councillors of Toronto passed a law that requires all city staff to ensure that illegal immigrants can access its services without fear of being reported to Canada Immigration and possible deportation.

This comes as good and historic news to an estimated 200,000 persons who are living in Toronto without status. Being without immigration status can arise in several ways and includes visitor overstays, refugee claimants who were denied and never left or workers whose work permits have expired. While Canada is boasting its new “sanctuary” status, it is old news in the USA which has already 36 cities and three states declaring themselves sanctuaries for non-status migrants. Toronto is now in the same domain as other US cities such as San Francisco, Los Angeles, New York and Chicago.

It should be noted that the policy does not address barriers faced by non-status residents for services under the provincial or federal jurisdictions such as housing, income security, OHIP, welfare and labor protection. With regard to law enforcement, if the police are aware of an immigration violation they have a duty to report it. However, the current policy is not to ask.

Specific services that illegal immigrants can use without fear of being turned over to enforcement include public health programs, after-school recreation and care, emergency medical services, shelters and hostels, community centers and pools.

However, not everyone is cheering in favor of the new policy which is likely to be passed in other Canadian cities. The Federal Minister of Immigration, Jason Kenney and some Toronto politicians are against the liberal policy as it “ sends the wrong message”.

One dissenting councillor put it this way “It sends a message to the world that it is okay to break the law to come to Canada and it says that the City of Toronto is an accomplice to this lawbreaking.”

Whether you agree with the new policy or not, it clearly emphasizes the fact that Toronto, Canada and the USA all have an enormous amount of illegal immigrants living underground. It is unknown how many undocumented persons live in each country but the combined amount could be over a million. Since most of these persons do pay tax (either income tax, or tax on products) an argument can be made that they benefit the economy and contribute to society. However, applicants who are waiting patiently overseas for years to have their applications processed may not think so.

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

By Atty. Henry Moyal

CANADA OPENS NEW PROGRAM FOR TRADE WORKERS

For decades Canada’s Immigration system concentrated on skilled workers who were required to pass several educational and language thresholds in order to qualify. This often prejudiced trade workers since it was unlikely skilled trade persons completed a Bachelor Degree at a university with high proficiency in English. In addition, in the past interested applicants would be required to pass certain criteria regardless of occupation. For example, a cook would be required to have a high level of English when his work did not demand it. Or a welder was required to show he completed a university course when most trade workers have apprenticeship training or vocational diplomas in their field. The occupation list which published “in demand” occupations often comingled professionals with trades people and high skill with low skill. For example, prior lists included physicians and architects with welders and electricians. As of January 1, 2013 the Federal Minister has divided up the categories and has announced that as of today, trade workers are able to apply under the Federal Skilled Trades Program (FSTP).

Effective immediately, the following trade occupations are eligible to apply for immigration to Canada:

Contractor and Supervisors (carpentry, electrical, construction. mechanic)
Carpenters
Machinists
Sheet Metal Workers
Ironworkers
Welders
Electricians
Cable Workers
Plumbers
Cooks
Chefs
Butchers
Bakers
Gas Fitters
Pipe Fitters
Heavy Duty Mechanic
Aircraft mechanics
Refrigeration and Air Conditioning Mechanics
Drillers

Some important information under the FSWP is noteworthy:

1. There is no specific point system – it is simply on a pass/fail basis.
2. The English level required to qualify is quite low ( level of 5 on speaking/listening and only 4 for reading/writing).
3. Having a relative in Canada is not required and is not relevant in any way4. A spouse’s education or work is not required and not relevant in any way
5. An applicant must have at least 2 years of full time work experience in one of the listed 43 occupations in the last 5 years
6. A quota of 3000 per year will be accepted
7. Processing is approximately 12 months
8. Qualification of occupation to be approved by the province

For other applicants, who fall under the Federal Skilled Worker (for example: nurses, nursing assistants, physicians etc…) the Federal Minister has announced that intake will commence soon and in May 2013. Therefore, interested applicants who are either trade workers or federal skilled workers should starting collecting documentation in order to meet current regulatory criteria.

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

By Atty. Henry Moyal

THINK TWICE BEFORE RETURNING BACK TO THE PHILIPPINES

Q. I arrived in Canada as a live in caregiver over three years ago. I am preparing all my documents for the submission of my permanent resident application. I will be filing for an open work permit at the same time. My current employer will be releasing me from my employment. I will no longer be employed by my current employer the day I file for my open work permit. I want to return to the Philippines to visit my husband right after I file my application. Will I have a problem? I know open work permits are issued quickly under new rules but I do not think it will be issued by the time I return. Will I encounter any problems?

A. I strongly suggest that you hold off on your trip. I am assuming you have a re-entry visa – so that is not a big concern. The bigger issue is that when you return you will (a) not have your open work permit and (b) you will be the holder of a work permit for an employer to which you are no longer employed. In my view, it is quite dangerous for you to come back to Canada because the officer at the airport will likely call the employer to verify your employment (to which you have none) and upon discovering same will likely not permit you to enter. In that case, the permanent resident application will be in limbo and the whole case can fall apart. I therefore suggest that you wait until you have your open work permit in hand. It will not take long to get it.

Q. I sponsored my wife to Canada. She is a Filipina. She has a dependant child who is in school. She is single and just turned 22 years of age. Before we filed the application we were informed that her daughter gave birth to a baby. The father of the baby has disappeared. It is important for my wife to have her daughter with us. Can the baby also immigrate? Can the daughter immigrate alone?

A. I see a few issues here. Firstly, did you inform immigration that the baby was born? In other words, you must have declared that the child of your wife had a child. When you do so (and you should have), several different laws and forms come into play. In fact, you do not have a choice. You must declare the grandchild or risk that the mother and your wife be deported for misrepresentation. That being said, the fact that the child has a child means that you cannot submit the simple Sponsorship Evaluation form. You must use the Financial Evaluation form. Second, you as a sponsor are now responsible for earning a certain amount of income to sponsor the family. If you are sponsoring a spouse alone or a spouse and dependant child then there is no specific amount of income required. However, as soon as the child has a child – it is quite different. The sponsor must earn a sufficient amount of income based on family size failing which they will be refused.

Assuming you (a) declared the baby and (b) you earn sufficient income, then you have the option of having the child remain in the Philippines or immigrating with the baby’s mother. Keep in mind though that if the baby is immigrating the embassy will want a signed notarized consent from the father allowing child to immigrate to Canada. That could be cumbersome if his whereabouts are unknown.

Q. I immigrated to Canada as a physician three years ago under the Federal Skilled Worker category. My application took two years to process. When I first applied I was single with no children. When I obtained my visa I had one child but did not have the time to inform the embassy. When they called me to pick up the visa, I only had one month to enter Canada. It was all rushed and I was too excited to know what to do. What do I do now?

A. This is tricky. On one hand you knew quite well that you had to inform immigration about the child but you decided not to tell them because you were rushed. While I can understand what happened, the embassy may not have such sympathy. You should have returned the visa and/or inform them of the baby. The fact that you did not tell them means you entered Canada on a misrepresentation. If Canada Immigration finds out you run the risk they will call you to court to explain. The best case scenario is that you file an application to sponsor your child now under compassionate grounds. It is possible but not easy.

*** Correction: In the last article of Immigration Newsweek we mentioned that the Federal Minister has designated the Philippines as a designated country in which asylum seekers to Canada would be presumed to be unfounded. In fact, the Philippines meets all the criteria to have such a designation but last week’s initial list of 23 countries did not yet include the Philippines. The current 23 country list includes most from the European Union and others will be added in future. Happy Holidays. ***

Attorney Henry Moyal is a certified and licensed Canadian Immigration Lawyer in Toronto, Ontario.The above article is general advice only and is not intended to act as a legal document.Send questions to Attorney Henry Moyal by email canada@moyal.com or call toll free 1 888 8472 078.

By Atty. Henry Moyal

NEW LAW HOPES TO DETER MARRIAGES OF CONVENIENCE

The Federal Immigration department has again made an announcement that on its face hopes to deter cheaters from defrauding the immigration system. In the newest plan to attack fraudsters, Hon. Jason Kenney has announced that any sponsorship application filed after October 25, 2012 will be caught by the new regulations. The new regulations will impose a two year conditional period for certain sponsored spouses similar to the two year probation period in the USA in the hope of deterring people from entering into marriages of convenience.

The term Marriage of Convenience is when a couple marry to obtain an immigration benefit and is not a genuine marriage relationship. Often one party provides financial compensation to marry just to obtain permanent residence. The popular USA movie Greencard is well known for this premise.

Until now, as soon as a sponsored spouse became a permanent resident, Canada Immigration would be very hesitant to go after the new immigrant if there was abuse or evidence of fraud (usually discovered by surprise by the sponsor after arrival of the spouse). Now, the immigration authorities have the power to remove new immigrants if there is proof that they have not lived with their spouse for two years after becoming permanent residents. Under the new rules, the couple must be together and living together for two years (starting from date of landing) or risk losing their permanent resident status. There does not seem to be any follow up process but rather the immigration authorities will go after the immigrants only once they are reported to be in violation. In other words, the regulations do not state that immigration will knock on your door after two years and there is nothing to do after two years to remove the condition. Further, the immigration authorities have clearly indicated that those in abusive relationships will be exempt.

For same of simplicity:

The condition applies if:

-couple is married for two years or less, or
-couple dated for four years but is married for two years of less, or
-couple have been in a conjugal relationship for two years or less, or
-couple has cohabited in a common law relationship for two years or less
AND
-do not have any children in common

Condition does not apply if:

-couple is married for more than two years, or
-couple have been in a conjugal relationship for more than two years, or-couple has cohabited in a common law relationship for more than two years, or
– have children in common

Regardless of the above, one must consider the overall effectiveness of the new rules. Minister Kenney has already imposed a five year suspension on new sponsored immigrants from sponsoring a new spouse. Now, with the new two year conditional period, will it really stop fraudsters? Cheaters and con artists are chameleons. Those who are willing to pay someone to marry will simply stay in the relationship for two years before filing for divorce. Those who are truly trying to obtain a visa by fraud will simply stay together for two years under immigration’s radar before leaving the relationship. While the intention is admirable, it is hard to see how it will genuinely stop people for entering marriages of convenience when that is the fastest and only route for a particular person to obtain permanent residence.

Looking forward, there will no doubt be inadmissibility hearings starting in 2015 regarding these types of violations. It will interesting to see how strict the Immigration Division will be when it comes to assessing that a genuine relationship did or did not exist and the grounds for removal.

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

By Atty. Henry Moyal

BEWARE OF SUPREME COURT OF CANADA IMMIGRATION SCAM

Q. I recently arrived in Canada on a work permit. I received a call from someone who identified themselves as being a solicitor from the Supreme Court of Canada. I was told that my Foreign Citizen Number is missing on the form and that I need to return it to the embassy with a fee to have the forms revalidated. I was directed to send it to their lawyer or a warrant will be issued. They issued me a docket number for my case. Is this real?

A. No, it is not real. It is a scam and another example of how people have nothing better to do but to conjure up schemes to take advantage of new arrivals to Canada. Firstly, the Supreme Court of Canada does not call people. Second, there is no such thing as a Foreign Citizen Number. Thirdly, if you are concerned about any aspect of your case you should call your lawyer or you can call Canada Immigration directly at 1 888 242 2100.

I am told from others that the story goes like this:

You get a call from a solicitor called Liccie Austin from Supreme Court of Ottawa. Liccie advises that they have validated all the forms that have been submitted during the Visa application and the Foreign Citizen Number (FCN) form is missing. A file has now been opened and an attorney, Juliene Miller, has been assigned to resolve the case. A call is transferred to Juliene and she explains that FCN (Foreign Citizen Number) is an important form (as Visa, Passport) that should be submitted back to the embassy. A fee must for the correction of two kinds of warrants (State & Federal) will be issued if a FCN form is missing for a person. Reference Docket # 225770.

In another apparent scam, people are receiving emails from Marriot Hotel Canada or Omni Hotel in Montreal offering employment opportunities. These hotels then refer interested applicants to Zonal Tourist Department (or some other named company) who accept payments and inform applicant to go to the Canadian Embassy to apply for a visa.

Applicants who are not aware of the process think it is legitimate but do not know that these hotels do not solicit work in this manner. It is again a scam. Applicants should always contact the hotel first to verify any such information before giving any money to anyone. Second, paying money does not permit you to apply for a visa. It does not work like that. Employers first must obtain a Labour Market Opinion (LMO) from Service Canada before a work permit can be submitted. Without an LMO, no application at the embassy is possible. So, if the Marriot or Omni did not obtain an LMO then nothing can be done. In any event, this is a scam but I am sure that now the fraudsters will now be issuing fake LMO’s to trick people in filing work permits. But the good news is that any LMO can be verified by quoting the LMO number and calling Service Canada for verification at 1 (866)-556-5518.

*** NEW RULES ON CANADIAN CITIZENSHIP APPLICATION***

There are new changes to Canadian Citizenship applications. Effective November 1, 2012 applicants between the ages 18 to 54 must provide evidence of official language proficiency in speaking and listening, at the time of filing their citizenship application.

Acceptable language evidence will include:

– the results of a CIC-approved third party test (including those previously submitted for federal or Quebec
immigration selection purposes); or
– evidence of completion of secondary or post-secondary education in English or French; or
– verifiable evidence from certain government-funded language training programs

Attorney Henry Moyal is a certified and licensed Canadian Immigration Lawyer in Toronto, Ontario.The above article is general advice only and is not intended to act as a legal document.Send questions to Attorney Henry Moyal by email canada@moyal.com or call 416 733 3193.

By Atty. Henry Moyal

OBTAINING TRAVEL HISTORY WILL PROVE DAYS LIVING IN CANADA

Q. I recently applied to become a Citizen of Canada. I have a multiple entry visa to the USA and I have travelled by car to the USA several times in the last four years. I cannot remember all the dates of travel and therefore I guessed the days of absence on my Citizenship application. I did not lie. I simply did not remember. I now have received a letter requesting that I provide a Traveller History Report. What is that and how do I get it?

A. In order to become a Citizen of Canada an applicant must have physically resided in Canada for 1095 days in the preceding four years before submission of application. All days outside of Canada must be recorded on the application. It is not a good idea to guess because Canada Immigration always has a way to prove if you are lying or not. More and more nowadays, Canada Immigration is requesting back up information from Citizenship applicants to support the fact they resided in Canada. Examples of proving you are residing in Canada is a T4 or income that shows you earn sufficient income. Another common tactic is to demand that applicants obtain a Traveller History. This report shows the entries and exits of applicants who have entered/departed Canada. It also can include land border crossing to/from the USA. To obtain the report send a request with a copy of your PR card and passport to: CBSA, 410 Laurier Ave. West, 11 th Floor, Ottawa, Ontario K1A 0L8.

Q. I want to sponsor my spouse who has been in Canada as a student for the last five years. She is now studying a Master program in university and her student visa will expire soon. The problem is that I was charged with assaulting her early in our relationship and I read that I am not eligible to sponsor her if I was charged. Does this mean I cannot ever sponsor my wife?

A. It does not mean that. However, you are not eligible to be a sponsor. For example, applicants who in jail or are bankrupt are not eligible to be sponsors. Similarly, sponsors who have been convicted of a crime cannot sponsor unless five years have passed from the end of the sentence. To calculate sentence, periods of probation are included.

Q. I applied to sponsor my parents. I was single at the time. I still have not heard from the immigration department on whether it’s been approved. Last week I got married. Do I need to inform them? Does it matter? My wife is not working and I am afraid that the added family member will mean I need to earn more income. What do I do?

A. Yes, you need to inform Canada Immigration. You have a change in family composition and therefore your family has just increased by one. As you know, you need to earn sufficient income in accordance with your family size to be eligible to sponsor your parents. The bigger the family the more income you need. The good news is that a new law was just announced stating that if a person who has filed an application gets married, they are able to add their spouse as a co-signer during the processing. The co-signer’s income can then be combined with yours. Before the law, CanadaImmigration was of the view that a sponsor must add the spouse as a family member but that the spouse’s income could not be added. The recent Federal Case of Dokaj v. Canada has now led immigration to reinterpret its policy. Under current laws, if you add the spouse as a family member it would be unfair to disallow the income. Therefore, now a new spouse is added as co-signer and co-signer’s income is added to the sponsor’s.

Q. I was informed by CIC that I need to submit proof of my language ability in English. I am applying for permanent residence under the Canada Experience Class. I graduated from a US university and I was born in England. Isn’t that enough? As well, I have an old IELTS test score in the Academic version. Is that sufficient?

A. Graduating from a USA university is not sufficient. Believe it or not, being born in USA is also not sufficient. ALL applicants must provide proof of English proficiency. Second, the Academic version of the IELTS is not accepted by CIC. IELTS results are valid for two years.

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

By Atty. Henry Moyal

CHANGES TO ECONOMIC IMMIGRATION CATEGORY

Of the approximately 200,000 immigrant visas issued per year, 40% of them are issued to economic immigrants and their dependants. The Government of Canada in its 2012 Economic Action Plan Budget announced that it wants to build a fast and flexible economic immigration system with a primary focus on meeting Canada’s labour market needs. In particular, the plan is to implement a system that will ensure immigrants are ready to work and that a person’s credentials are assessed properly by Canadian standards so that immigrants can enter the work force faster and be readily available to employers in the labour market.

In response to the above agenda, Citizenship and Immigration Canada has now proposed a triple-plan approach to improve economic immigration outcomes. They are:

#1: Update the FSWC (Federal Skilled Worker Class) by rebalancing the points among existing criteria, introducing mandatory language thresholds, requiring an educational credential assessment at the time of application if the educational credential submitted is from a foreign jurisdiction, streamlining the arranged employment process, and reducing the potential for fraudulent job offers under the Arranged Employment factor;

In particular, Canada Immigration is proposing to require a minimum level of English proficiency to qualify and to significantly increase the maximum number of points awarded to those who are fluent in English. This is excellent news for nationals of the Philippines whose main language of instruction in school is English. Currently, the maximum score for English is 16, under the proposal the maximum will be 24.

As well, more points will be given to applicants who are younger. Applicants between 18 -35 would be awarded 12 points (currently maximum score is 10).

Less points for work experience will be awarded. Currently the maximum points for work is 21 and under the new system will be 15.

Relative points will likely remain the same but under a new twist, Canada immigration wants to set a minimum age criteria for the assisted relative to increase the likelihood that the relative will be able to play a role in facilitating the applicant’s integration into Canada. In theory it makes sense – an applicant who has a 75 year old grandparent will likely not receive much assistance integrating as opposed to a sibling in his twenties.

#2 :Introduce a new Federal Skilled Trades Class (FSTC) to facilitate the immigration of certain skilled tradespersons in Canada, in response to labor market needs.

The new FSTC would be open to skilled tradespersons with experience in the following occupational areas: Industrial, Electrical and Construction Trades; Maintenance and Equipment Operation Trades; Supervisors and TechnicalOccupations in Natural Resources, Agriculture and Related Production; Processing, Manufacturing and Utilities Supervisors and Central Control Operators; as well as Chefs and Cooks, and Bakers and Butchers. Applicants to the proposed program would be required to meet requirements with respect to language ability, provincial qualifications and have at least two years of work experience.

#3: Reduce the CEC work experience requirement to one year of work. In particular, applicants who can demonstrate 12 months of work experience (within the last 36 months) in Canada in a skilled position would qualify. Currently, workers must accumulate 24 months of work experience within the last 36 months.

The above are preliminary proposals and final amendments to be announced in future.

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

By Atty. Henry Moyal

PERMANENT RESIDENTS WHO COMMIT CRIMES ARE AT RISK

Q. Are Canadian Citizens treated the same way as Permanent Residents in the eyes of Canada Immigration?

A. When an old friend commented to me the other day that permanent residents have the same rights and privileges as Canadian Citizens, it occurred to me that most regular Canadians have little knowledge of the difference between a permanent resident and a Canadian Citizen. For the most part, I agree that most rights are the same . As well, most people are aware that permanent residents cannot vote in a federal election and that permanent residents must renew their PR Cards. However, I found it quite surprising that many were not aware that committing a crime as a permanent resident has a dramatic impact on one’s status vs. a Canadian Citizen.

If a Canadian Citizen commits a crime, the judicial system takes over and the criminal courts adjudicates the offence which may or may not involve a jail sentence. No immigration issues play a part and the Canadian Citizen will serve his crime in Canada. However, if a permanent resident of Canada commits a crime that is punishable by a jail term of ten years or more then they are under Canada Immigration’s radar. In other words, a permanent resident (regardless of how old they are and regardless of whether they have been permanent residents for 1 year or 30 years) is likely to be scheduled for an immigration interview by CBSA (Canada Border Services Agency) once the criminal sentence is over.

The purpose of the interview will be to determine the circumstances of the offence and to determine if the person should proceed to an inadmissibility hearing. The admissibility hearing is the first step towards deportation and removal from Canada. In many situations, it is possible to appeal the removal but requires professional assistance to file appeal on time.

It should be noted that having a spouse or children or a house in Canada is irrelevant to Canada Immigration when deciding if a permanent resident should be removed. Those factors may be presented at the appeal stage only. Therefore, it is crucial to note that permanent residents are at risk when they commit a crime. If such a situation concerns you it is crucial to obtain immediate professional help in order to avoid a deportation.

Q. I know of a person who entered Canada on the back of a truck via USA. They are using someone else’s SIN number and using a fake name. They are married to a Canadian Citizen and they want to become legal. How does one resolve this?

A. This must be handled carefully. The fact that your friend is married to a Canadian can give rise to a sponsorship but you have not mentioned if the marriage was under the real name or the fake name. If your friend married using the fake name (likely because all his documents and identity have been with this name) then the application is more cumbersome on several levels. Firstly, would he want his permanent residence to be under his fake name? Does he want to continue living this lie and continue his life using someone else’s identity? What happens when he obtains fingerprints for a police clearance and his prints are under the real name? Is he also going to procure a fake birth certificate? It seems to me that the best approach is to stop lying and to obtain professional help on how to file a properapplication to immigration. In my opinion, it serves no purpose to continue to lie and using someone else’s identity if the end result is to become legal.

Q. I understand that Canada Immigration has put a hold on parental sponsorships. I also am aware that in exchange eligible parents can now obtain super visas. However, I read from a previous article that you wrote that there are quite a few requirements to obtain the super visa. My question therefore is: Is my mother obligated to apply for the super visa or can she just apply for a regular visa?

A. The officer’s review of a visitor visa application is the exact same when it comes to determining if the applicant is a bona fide visitor. That has not changed regardless of whether a parent is applying for a super visa or not. However, your mother can indeed only apply for a regular visa and if granted will only be issued for six months. In my experience the embassy will require your mother to complete a form saying she is not applying for the super visa and the application will proceed on that basis. Of course, if a super visa is selected the applicants must undergo medical exams and proof of health insurance in Canada is required.

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

By Atty. Henry Moyal

GOOD IDEA TO ALWAYS GET A SECOND OPINION

Q. I have lived in Brampton for the last 5 years. I originally entered as a contract worker but my visa expired. I then met a woman and we married. We filed the application with the help of a consultant but I think it was filed at the wrong immigration office. I was told that my illegal status would not matter so I am confused as to why it is taking so long for immigration to process my visa after so many years. When I called them they told me the file is in Manila and that I should contact the embassy. I am confused because I am in Canada so why should I contact Manila? I am afraid to ask anyone for help fearing the embassy will hold it negatively against me that I am seeking a second opinion.

A. You need to obtain professional help right away. Whether you call it a second opinion or not, it seems to me that you are not aware of what you have filed and you need to find out from Canada Immigration as to what stage your immigration file is at. In my opinion, you are not getting a second opinion. You are actually getting a first opinion because any assistance (or lack thereof) from the consultant you hired is counted as zero. I am further confused as to your fear that the embassy would regard obtaining getting professional help as a negative thing. In my opinion, the embassy should be pleased to deal with a professional to relay pertinent information. Since your case has taken more than a few years it is likely that an interview was scheduled and you did not attend. On the other hand, if you were not under removal proceedings then I find it baffling as to why your application was sent to Manila instead of filing the application inside of Canada. It seems quite obvious that there are pieces of the puzzle missing and getting a second opinion would be the best thing to do at this point in the hope of salvaging the application.

Q. I want to apply to be an immigrant of Canada with my daughter. I am a physician with years of experience. I believe I am qualified. The problem I am facing is with my wife and child. We are not divorced. I cannot locate my wife who needs to give me consent to divorce or to permit me to immigrate with my daughter alone. I cannot obtain a divorce because I do not know my wife’s address. I seem to be going in circles trying to comply with all the requirements.

A. It is indeed a problem that seems to be common. The fact is that if you are not divorced or annulled then your wife is considered to be a family member – like it or not. As a family member she must be declared on your application, she must complete forms, she must undergo a medical and provide police clearances. Another fact is that you will not be able to immigrate with your daughter unless the other parent gives signed/notarized consent. To make things go smooth, I suggest you file for a divorce and obtain sole custody. In that way, both problems are resolved. To get a divorce without knowing her whereabouts may require a motion to the court but is possible.

Q. If a person is living in the USA without legal status can they still undergo the medical test in the USA? What about police clearances? How does a person who does not exist within USA Immigration radar file an application to Canada?Can they?

A. Assuming you are qualified and assuming you file properly, you can indeed file an application when you have no status. We have been successful in doing so many many times. Second, you do not need to leave USA to obtainmedical or police clearances. Therefore, the fact that an applicant is illegal in USA, medical and police clearances are obtainable.

Q. I’m a live in caregiver in Canada. I have my open work permit. I will be giving birth to a child in Canada soon and I am planning to marry the father of the child early next year. The problem is that my fiancé is a failed refugee claimant. He has not been asked to leave Canada though. If we marry will he be able to remain in Canada?

A. Unfortunately, marrying this individual could potentially jeopardize your application. All those years working as a live in caregiver will be lost. You may get refused and no one would be an immigrant. I am saying this because one of the requirements for you to become an immigrant under the live in caregiver class is that no dependant must be inadmissible or have an enforceable removal order. If you marry, your spouse is your dependant and he has enforced removal order. Either not marry or have spouse leave Canada. In rare situations it may be possible to marry and then discuss the predicament with the immigration officer who will advise when indeed spouse must leave.

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

By Attorney Henry Moyal

OBTAINING A SUPER VISA TO CANADA

The term “super visa” was recently introduced into our lexicon by the Federal Minister a few months ago after the Canadian Government made a unilateral decision to stop processing new parent/grandparent sponsorships. The super visa category is essentially a visitor visa that permits a parent or grandparent to enter Canada for up to two years. It is only for a parent or grandparent – no other applicant or dependant is eligible. It is not known how many individuals have been issued the super visa but many have already expressed dissatisfaction with the system revealing that many parents (who cannot be sponsored now) are being denied visitor visas which contradicts the entire super visa rationale. It should be noted that applying for a visitor visa under the super visa process comes with the same statutory requirements and criteria as a regular visa. Moreover, to be successful a visa officer still must be satisfied that the applicant is entering Canada as a genuine visitor and not for a permanent intention. The following is an overview of what is required to be granted a super visa:

1. Providing proof of the relationship between the parent/grandparent and the Canadian citizen or permanent resident;

2. Undergoing a medical examination and being admissible on health grounds;

3. Provided satisfactory evidence of private medical insurance from a Canadian insurance company, valid for a minimum period of one year from the date of entry which covers the applicant for health care, hospitalization and repatriation and provides a minimum of $100,000 coverage.

Many have asked however:

– What are the costs of such insurance policies in Canada?
– Are the costs refundable? In other words, if for example a daughter in Canada purchases the medical insurance for a parent and the parent does not enter Canada, does the daughter get a refund of the insurance she paid?
To answer these important questions, we asked insurance agent Garycesar De Guzman of World Financial Group. Mr. De Guzman advises that insurance fees are refundable as long as the purchaser provides a letter from the Canadian Embassy that a visa was not issued. As well, the average price to insure a parent is approximately $3000 per year. Parents who leave Canada within the year will be reimbursed the pro-rated amount. For more information contact Mr. De Guzman at 647 863 7664.

4. A notarized letter of invitation signed by the child in Canada

Your letter must include the following information about the person being invited:

• Complete name.

• Date of birth.

• The person’s address and telephone number.

• Your relationship to the person being invited.

• The purpose of the trip.

• How long the person you are inviting intends to stay in Canada.

• Details on accommodation and living expenses.

• The date the person you are inviting intends to leave Canada.

To have the proper letter of invitation draft and notarized under new Canada Immigration rules, contact Attorney Henry Moyal for an appointment.

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

By Attorney Henry Moyal

NEW SPONSORED IMMIGRANTS FACE FIVE YEAR BAN

SPONSORSHIP CHANGES

Effective immediately, the Federal Immigration department is changing the rules for immigrants who were sponsored to Canada as spouses or common law partners. In the hope of scaring people away from performing sham marriages, the Canadian government is taking swift action against those who use the marriage route to gain quick access to Canada. In the past, a person could marry a Canadian Citizen and then become an immigrant with no conditions. Thereafter, the immigrant would be able to turn around, divorce the Canadian sponsor, and file a sponsorship for another person.

However, laws have changed. Under new rules, a person who becomes an immigrant as a sponsored spouse is barred from sponsoring another spouse for five years after becoming an immigrant.

As well, under a new proposal with is not yet official, the sponsored spouse will have a two year conditional visa upon entry. If after two years, it is discovered that the spouse and sponsor are no longer together, it is possible that the immigrant will be deported.

HIRING ILLEGAL WORKERS

Many are of the view that when a person works illegally in Canada, only the worker is at risk. Many workers try to hide their unauthorized employment by “working under the table” thinking that they will not be caught from the enforcement division. That may be true but it is important to remember that the law applies to Canadian employers too. Many Canadian employers think that there is nothing wrong by hiring illegal workers. They also think that being illegal is something that is foreign. In reality and based on recent policy, Canada Immigration can and does enforce its rules again Canadian employers who hire workers who are not authorized to work for the employer. The Immigration Act imposes stiff penalties against Canadian employers which must be taken seriously. As well, it is important to note that a worker is an illegal worker if they do not have specific work authorization to work for the employer. If a live-in-caregiver has a work permit to work for “employer X”, that caregiver would be an “illegal worker” if for example he/she worked at a bakery on a Sunday. If caught, the worker could be deported and the bakery owner charged with employing an illegal worker and fined heavily. It does happen and it would be naïve to think that Canadian employers are immune from punishment.

TIME REQUIRED TO REMAIN IN CANADA AS A PERMANENT RESIDENT

The laws dealing with the time required to remain in Canada to maintain permanent residence changed in June 2002. I am still amazed that many people today still think that a permanent resident must remain in Canada for six months at a time and cannot leave for more than six months. Those were the pre-2002 rules which basically deemed that a person abandoned their permanent residence if they were absent six months out of the year. That is not the case and has not been the case for a decade. Under current rules, a permanent resident must reside in Canada for 730 days (not necessarily continuously) in every five year period.

SPONSORSHIP APPLICATIONS NOW REQUIRE TWO VALIDATED ONE APPLICATIONS

As many are aware, all applications for permanent residence now require a Generic Application which must be completed on line and then validated. Once validated, the computer generated bar codes must be submitted to the Canadian Embassy. As of March 31, 2012, all sponsorship applications will require two on line validated forms with bar codes – the Generic Application plus the Sponsorship Agreement. Old versions will no longer be accepted.

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

By Attorney Henry Moyal

THINK TWICE BEFORE LEAVING LIVE IN CAREGIVER PROGRAM

Q. I entered Canada two years ago under the live in caregiver program. I have not yet filed for permanent residency as I am short the required 24 months of employment. I am wondering if I still need to continue with being a caregiver or not because I am married to a Canadian Citizen. He says that he will sponsor me for immigration if I want him to. I am thinking it will be faster if I just left my employer and file a spousal sponsorship. If I do that which one will be faster? Can I work during the processing? What is best?

A. You have not specified how short you are from the 24 requisite months under the live in caregiver program. Even if you are close to that, the faster route would of course be a spousal sponsorship because time frames have increased lately for permanent residence for caregivers. However, timing should not be your first priority. You should be very careful before you opt to take yourself out of the live in caregiver program. By that, I mean you must remain as a worker and hold a valid work permit in order to qualify under the program. If you do not renew your status or let it lapse, you will be in danger of being sent home if the spousal sponsorship is delayed or refused or withdrawn – and I have seen all three happen.

Q. I’m a permanent resident of Canada and I want to sponsor my husband in the Philippines. He tried to obtain a visitor visa but was refused. I am pregnant and I have no job. My husband sends me financial support. Can I go to the Philippines and file the sponsorship there and just wait with him until visa is issued? I read on the internet that I cannot file the application in Canada because I don’t have sufficient income. What is the best way out?

A. You cannot sponsor your husband and remain in the Philippines because you are a permanent resident of Canada. You must reside in Canada to be eligible as a sponsor. As well, the sponsorship application is not filed in the Philippines – it is filed in Canada. Therefore, you have no choice but to remain in Canada and be separated from your spouse for the duration of the application or wait until you become a Canadian Citizen. Canadian Citizens have the luxury of being able to live abroad and file for the sponsorship of their spouse on the condition they return to Canada when visa is issued. Regarding your income, I am not sure what you have read on the internet but be very careful of your source as many site or discussion groups provide misleading/inaccurate information.

Q. I’m a nurse and I have applied for immigrant status in Canada. My husband is in the Philippines and he just sent his NBI police clearance to the embassy. The embassy has asked for more information because the certificate stated he has a “derogatory remark”. I asked my husband about it and he told me that the offence was minor. What do we need to do? My immigration status is about to expire. Can I get my permanent residency first and then resolve this later? How can I get my visa first since this matter is delaying the case a long time.

A. You cannot obtain your visa first. It is a family application. If he is refused for a criminal matter – then no one in the family gets a visa. You should have a long talk with him to find out what happened. It may have been minor in the Philippines but the act may be equivalent to a criminal offence in Canada which can render him (and you) inadmissible to Canada. Depending on the length of time that has passed it may also be possible to obtain a rehabilitation certificate to overcome the inadmissibility. My suggestion is to obtain all the criminal court records and then see a professional immigration lawyer for advice. In my experience, criminal offences abroad can get tricky as they require an equivalency test before implementation of the immigration regulations.

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

By Attorney Henry Moyal

HOW TO SPONSOR AN ILLEGAL SPOUSE

Q. I’m a Canadian Citizen living in Canada and in a serious relationship with my high school sweetheart. He was married previously but is now living in California. He has no status in USA. I want to sponsor him as my fiancé or spouse. I am not sure if it is better if he comes to Canada to marry or I should go there. If we marry in USA can the application be processed in Los Angeles?

A.There is no fiancé category any longer. If you are going to marry then it seems the more realistic approach is to marry in USA. I am saying this because it will be very unlikely that he will be granted a tourist visa to enter Canada and thus you cannot marry in Canada. Assuming you are both free to marry and all divorces are in place, then a wedding solemnized in the state of California is legal for immigration purposes. The place of processing will depend on his prior status in USA coupled with his current USA immigration status. For example, is he under removal proceedings?
You should also take into account the place you want the interview conducted in the event you are convoked for one. All these factors are relevant but once all put into place, it is very indeed possible to sponsor a spouse who is illegal in USA.

Q. I am in Canada with no status. I entered as a visitor three years ago and let my status expire because I entered using someone else’s passport. I am now married to a Canadian immigrant and I am pregnant. My friends tell me that they cannot deport me if I have a child born in Canada but I am still afraid to do anything for fear they will put me in jail and deport me. How do I get out of this mess?

A. Not surprisingly, advice from friends and unqualified persons is the wrong way to go. The information given to you is inaccurate once again. Having a child in Canada renders the child a Canadian citizen. The child cannot be deported but the mother certainly can. The good news is that you will not be put in jail unless there is a warrant for your arrest – if so, at worse you will detained but spouse can post a bond. However, all that will not happen if you file the proper documentation and sponsorship. There are two caveats though: you must file the new forms under the new laws for illegal visitors and second you could be found ineligible depending on the circumstances surrounding the fraudulent passport. Obtain professional advice from someone who knows the laws and regulations – a lawyer not a consultant.

Q. I came to Canada as a live in caregiver in 2008. I was initially released upon arrival from my first employer. I did not obtain a new work permit until two years thereafter. I believe I now have the required 24 months of employment but my work permit is expiring soon. I will not have time to file my permanent resident application before the work permit. My passport is expiring too. Can I postpone my permanent residence application? Will I be able to extend my work permit?

A. I have a feeling you are going to face some bad news unless you clean up your situation and act fast – very fast. If you arrived in 2008 then you must accumulate 24 months within 4 years of arrival. If you do not then you could be out of the live in caregiver program. If you did then you must hold a valid work permit to obtain a permanent resident visa. It sounds like you will need a labour market opinion to extend the work permit if it is past the 4 years. As well, if your passport is expiring you should renew it immediately as the work permit cannot be issued past expiry of passport.

Q. I’m a licensed practical nurse and have several years of work experience. I want to apply as an immigrant but the problem is that my spouse is still in the Philippines and he is not so determined to immigrate. Can I just file the application myself and explain to immigration that my husband is not interested?

A. No, the world of immigration law does not work like that unfortunately. Providing a letter will not help. In fact, I am certain that they won’t even process the application. Your spouse is still a family member and must be declared on the application. He can be accompanying or non-accompanying. Whether he is immigrating or not – he still must pass medical and security checks and provide all relevant documents as a dependant.

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

By Attorney Henry Moyal

HOW TO SPONSOR AN ILLEGAL SPOUSE

Q. I’m a Canadian Citizen living in Canada and in a serious relationship with my high school sweetheart. He was married previously but is now living in California. He has no status in USA. I want to sponsor him as my fiancé or spouse. I am not sure if it is better if he comes to Canada to marry or I should go there. If we marry in USA can the application be processed in Los Angeles?

A.There is no fiancé category any longer. If you are going to marry then it seems the more realistic approach is to marry in USA. I am saying this because it will be very unlikely that he will be granted a tourist visa to enter Canada and thus you cannot marry in Canada. Assuming you are both free to marry and all divorces are in place, then a wedding solemnized in the state of California is legal for immigration purposes. The place of processing will depend on his prior status in USA coupled with his current USA immigration status. For example, is he under removal proceedings?
You should also take into account the place you want the interview conducted in the event you are convoked for one. All these factors are relevant but once all put into place, it is very indeed possible to sponsor a spouse who is illegal in USA.

Q. I am in Canada with no status. I entered as a visitor three years ago and let my status expire because I entered using someone else’s passport. I am now married to a Canadian immigrant and I am pregnant. My friends tell me that they cannot deport me if I have a child born in Canada but I am still afraid to do anything for fear they will put me in jail and deport me. How do I get out of this mess?

A. Not surprisingly, advice from friends and unqualified persons is the wrong way to go. The information given to you is inaccurate once again. Having a child in Canada renders the child a Canadian citizen. The child cannot be deported but the mother certainly can. The good news is that you will not be put in jail unless there is a warrant for your arrest – if so, at worse you will detained but spouse can post a bond. However, all that will not happen if you file the proper documentation and sponsorship. There are two caveats though: you must file the new forms under the new laws for illegal visitors and second you could be found ineligible depending on the circumstances surrounding the fraudulent passport. Obtain professional advice from someone who knows the laws and regulations – a lawyer not a consultant.

Q. I came to Canada as a live in caregiver in 2008. I was initially released upon arrival from my first employer. I did not obtain a new work permit until two years thereafter. I believe I now have the required 24 months of employment but my work permit is expiring soon. I will not have time to file my permanent resident application before the work permit. My passport is expiring too. Can I postpone my permanent residence application? Will I be able to extend my work permit?

A. I have a feeling you are going to face some bad news unless you clean up your situation and act fast – very fast. If you arrived in 2008 then you must accumulate 24 months within 4 years of arrival. If you do not then you could be out of the live in caregiver program. If you did then you must hold a valid work permit to obtain a permanent resident visa. It sounds like you will need a labour market opinion to extend the work permit if it is past the 4 years. As well, if your passport is expiring you should renew it immediately as the work permit cannot be issued past expiry of passport.

Q. I’m a licensed practical nurse and have several years of work experience. I want to apply as an immigrant but the problem is that my spouse is still in the Philippines and he is not so determined to immigrate. Can I just file the application myself and explain to immigration that my husband is not interested?

A. No, the world of immigration law does not work like that unfortunately. Providing a letter will not help. In fact, I am certain that they won’t even process the application. Your spouse is still a family member and must be declared on the application. He can be accompanying or non-accompanying. Whether he is immigrating or not – he still must pass medical and security checks and provide all relevant documents as a dependant.

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

By Attorney Henry Moyal

TOP TEN IMMIGRATION QUESTIONS OF 2011

Q1. I have a sister living in the Philippines who is interested to immigrate to Canada? Does she qualify?

A1. More information is needed on your relative. There are several categories that she may or may not qualify for. While many people are interested in immigrating, one must remember that a person must be eligible and qualify before embarking on an application. For a free assessment complete the free assessment form in www.moyal.com

Q2. I heard that immigrating has stopped processing parents’ sponsorship application? I filed my application last year. Will I be affected?

A2. No. Any application filed before November 5, 2011 will not be affected and will be processed normally.

Q3. I have no status in Canada. Can I still apply and qualify for immigration to Canada?

A3. Yes. Being out of status is not directly relevant to one’s eligibility. We have processed hundreds of applications from applicants who were out of status and successfully became immigrants.

Q4. I want to immigrate to work in Canada but I do not have an employer. Do I need an employer? Will you find an employer for me?

A4. If a person is qualified under Canada’s current immigration regulations, NO employer is required to obtain permanent residence. As an immigrant you can live and work anywhere in Canada. Our law office can certainly help with places to find an employer but we do not place individuals in specific jobs. If a person wishes to only work in Canada and only obtain a work permit (as opposed to an immigrant visa) then is most cases, an employer is first required.

Q5. I entered Canada to work as a caregiver years ago but declared I was single at the time when in reality I was married. I was to apply for permanent residence and include my husband. Can I?

A5. Technically, you misrepresented yourself upon arrival. The immigration department does not take such things lightly but if you have not already applied for permanent residence it is likely that you not face a problem. A solid explanation is required.

Q6. I was married when I arrived to Canada to work but do not want to include my spouse on my permanent residence. Is this possible?

A6. You need to decide if you want to either: declare spouse but have him declared as a non-accompanying dependant OR exclude spouse. If the former, he still must comply with medical and security checks. If the latter, then you must obtain a divorce / annulment.

Q7. I’m a Canadian Citizen. I was sponsored by my mother to come to Canada. At the time of my application I had a child that I told no one about. Can I sponsor my child now?

A7. Your case will be caught by regulationR117(9)(d) which states that your child is not considered to be a family class member. However, if you have a strong reason for not declaring the child it may be possible to sponsor the child. Seek professional assistance as it may affect your status.

Q8. How does one obtain a super visa?

A8. A super visa is a visa for two years that is given to parents/grandparents who wish to visit Canada. They must provide proof of health insurance, letter of invitation and undergo a medical exam.

Q9. My sponsorship application was refused. Can I appeal?

A9. If your application was to sponsor a parent or spouse and the refusal was made outside of Canada then you have an automatic right to appeal. You must appeal within 30 days of refusal. If your sponsorship was processed inside Canada under inland processing then there is no automatic right.

Q10. Is there an age limit on immigration to Canada? I’m over 40 years old. Can I still qualify for immigration or am I out of luck.

A10. There is no age limit per se. There is no rule stating that people over a certain age cannot apply. However, age is one of several factors. All factors are assigned a score. The highest score obtainable for age is between 21-49. Therefore, if you are over 40 then you will obtain maximum points for age.

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

By Attorney Henry Moyal

PR CARD RENEWAL CAN TAKE MONTHS TO PROCESS

Q. I have lived in Canada as an immigrant for over six years. I did not renew my PR card and it has expired. I rarely travel so I never thought it was a problem. My mother in the Philippines is getting older and I want to visit her. Should I apply for my PR card or just Canadian Citizenship? Which one is easier and faster? Can I apply for both?

A. Yes, you can apply for both at the same time. Both applications require you to demonstrate that you lived in Canada and that you qualify for each program. If you lived in Canada for six years and rarely travelled, it is very likely you will have no problems with respect to eligibility for either application. The decision therefore is: do you apply for both at the same time or just one? If you only apply for Canadian Citizenship, then you will not be able to travel on a plane into Canada for about 12 – 14 months. You can leave Canada but returning with a PR card is a problem (unless you obtain a travel document from an embassy abroad). If you apply for the renewal of the PR card only, that will take about 150 days. If you have the means, I suggest that you apply for both simultaneously. The PR card will take about 5 months but if there is an emergency you can get it quickly.

Q. I’m a live in caregiver in Canada. I entered Canada three years ago to work as a nanny for an older woman. That employer recently passed away and I am in the process of applying for a new work permit for a new employer. The problem is that my work permit (under the name of the elderly woman) has expired. I was told I can apply for restoration within 90 days of the expiry. If so, can I work for my new employer until the new permit is issued? It seems the new permit will be issued in three months and I do not think my new employer can wait that long for me to work.

A. You cannot work for the new employer until you have a work permit with their name as the employer. You are correct in that you must and should apply for restoration within 90 days of expiry of the initial work permit. However, applying for restoration does not permit you to work for the new employer. You status will be “saved” and you will have implied status during the restoration period but again that does not authorize you to work.

Q. I read your article last month regarding unscrupulous consultants. I too have been duped by such con artists who often refer to themselves as “attorneys”. As well, why do these consultants always say they are in court? Which court are they referring to? I tried to follow up on my immigration case as nothing has been done on my file as they promised. In reply they threatened me and “reminded” me that it is illegal to work in Canada under the table. I am working part time but I need the money to send home. What do I do?

A. As you know, working in Canada without authorization is not legal. However, it is not the consultant’s business. The consultant cannot play policeman and act for you at the same time. What kind of consultant threatens a person with such a thing? It seems crystal clear to me that the consultant is only scaring you with rubbish so they do not refund your money. It is a tactic often used by consultants who prey on illegals in the country. The applicants usually give up for fear they will be reported by the consultant. In my opinion, the consultant should have their licence revoked. However, consultants do not have licenses and do not have law degrees and are not lawyers…so you really do not have much recourse but to sue in small claims court. And to answer your question, that is probably the court that the consultant is always at….small claims court – as a defendant to all the claims made against them.

IMMIGRATION UPDATE: AS OF DECEMBER 1, 2011 ALL FEDERAL APPLICATIONS NOMINATED UNDER THE PROVINCIAL NOMINEE PROGRAM OR QUEBEC WILL NEED TO BE SUBMITTED TO THE CENTRALIZED INTAKE OFFICE IN NOVA SCOTIA. THE FEDERAL APPLICATIONS ARE NO LONGER SUBMITTED TO THE VISA OFFICE ABROAD.*

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

By Attorney Henry Moyal

CANADIAN IMMIGRATION APPLICATION CAN BE FILED WITH NO STATUS IN USA

Q. I want to apply as an immigrant to Canada. I believe I am qualified as I am a doctor from the Philippines. The problem is that I have no status in USA. I overstayed. I am getting conflicting information. Can I file an application while I have no status or not? Do I need to leave the USA to do my medical? I’m confused.

A. Be confused no more. Assuming you are qualified and assuming you file properly, you can indeed file an application when you have no status. We have been successful in doing so many many times. Second, you do not need to leave USA to obtain medical or police clearances.

Q. My parents are visiting me in Canada. They have been visitors on valid status for over two years. They have been a great help to our family as they take care of the children. I researched the possibility of sponsoring them for humanitarian reasons but I recently received a refusal letter from Canada Immigration. I am receiving conflicting information. I know many people whose parents were in Canada and obtained permanent residence. Why was mine refused? I earn a very good living and finances are not an issue to care for them. So what went wrong?

A. In short, you filed the wrong application. I am not certain if your poor advice was given to you via a friend or perhaps from the telecentre or from a consultant. Nevertheless, if done properly parents can indeed be sponsored while they are visiting Canada. It may take a while but it is not a problem. We have been successful in processing many such cases without requiring parents to even step outside Canadian soil. Best to obtain professional help.

Q. I’m a live in caregiver in Canada. I have my open work permit. I will be giving birth to a child in Canada soon and I am planning to marry the father of the child early next year. The problem is that my fiancé is a failed refugee claimant. He has not been asked to leave Canada though. If we marry will he be able to remain in Canada?

A. I would think long and hard before marrying this man. Not only will he not be able to stay but it could potentially jeopardize your application. All those years working as a live in caregiver will be lost. You may get refused and no one would be an immigrant. I am saying this because one of the requirements for you to become an immigrant under the live in caregiver class is that no dependant must be inadmissible or have an enforceable removal order. If you marry, your spouse is your dependant and he has enforced removal order. Either not marry or have spouse leave Canada.

Q. I’m a Canadian Citizen. I met my first wife on a cruise in 2009 and we married shortly thereafter. I sponsored her and she obtained her immigrant visa in 2010. The marriage unfortunately did not work out and we divorced. I now met another woman and I am thinking or marrying her soon. Will I have a problem sponsoring her or will they understand that sometimes marriages do not work out?

A. It is not a question of whether Canada Immigration believes in the marriage. Your biggest hurdle is a law that prevents you from sponsoring a spouse if the sponsorship period of a previous spouse is still in effect. You stated that spouse #1 landed in 2010. The sponsorship was for a three year period. Therefore, you must wait until that period ends until you sponsor spouse #2. The fact that you divorced spouse #1 is irrelevant. As well, it is a good idea to try and ask spouse #1 if she collected welfare. If she did, then you are not eligible to sponsor anyone (even if after the 3 years) until you repay back the funds.

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

By Attorney Henry Moyal

CAREGIVER ABUSE A SERIOUS PROBLEM

Q. I’m a live in caregiver who is new to this country. The employer who first hired me lost his job and was not able to pay my salary. I then sought the help of an agency who charged me $1500 to look for an employer. The agency told me that it is better to have any new employer than no employer. I paid the fee and upon obtaining my work permit I soon discovered that the new employer didn’t need my help and was only an employer on paper. I was forced to pay my own taxes to make it seem I am working. To make matters worse the employer has made sexual passes at me which makes me feel uncomfortable. I told my agency but it seems they do not care. They told me that I need to pay another fee to find another employer. What do I do to get out of this revolving door?

A. The best suggestion is to stay far away from your current employer and from that agency. Change your mailing address and your cell phone. Each day you spend with these people is one day less on your four year eligibility work permit. Not surprisingly, I disagree with the agency. It is not better to have any employer than no employer. Your employer does “zero” towards eligibility and you gain no work experience whatsoever. Paying your tax in order to get a fake T4 at the end of the year is fraudulent. As well, charging you $1500 is also illegal. Agencies cannot charge workers for finding employment. As well, in my experience, if you keep connected to this agency you will never be out of their clutches and quite often they will ask for additional funds for you. For example, what if at the end of the year your “employer” does not wish to issue you a T4? You cannot complain to immigration (since you never worked there) and therefore you leave yourself vulnerable to further extortion by this tag team.

Regarding the sexual advances, that is outright criminal. If you have the strength call the police. At a minimum, pack your things and get out of this situation that provides no benefit to you in any way. It only wastes your time. It is also important to note that the Immigration department is very sensitive to caregiver abuse. If you feel that you’ve been a victim of abuse in your workplace, you may be eligible for emergency processing of a new live-in caregiver work permit to help you transition to a new employer as quickly as possible.

Q. I am already in Canada as Permanent Resident. I did not declare my child upon entering. Am I eligible to bring him to Canada to visit or can I sponsor him? I was told that I cannot ?

A. It is not so black and white. While it is true that entering the country and misrepresenting your family status is a serious issue, it does not automatically mean that your son cannot enter the country. The specific law is actually R117(9)(d) which states that if you failed to disclose the child before coming to Canada, then the Immigration Department is not going to consider that person as a family class member after you enter. However, other regulations focus on compassionate factors that may or may not overcome the former rule. In other words, it really depends on the circumstance and each case must be dealt with on its own merits.

Q. I applied to immigrate to Canada as a nurse and my visa was fast tracked. It only took six months to process the application. My questions are: Can I enter Canada and then leave right away? Do I have to work as a nurse? Am I permitted to sponsor my boyfriend after I arrive?

A. Yes, you can enter Canada, become an immigrant and leave the next day if you want. However, there is a caveat. If you leave so soon you will not have the actual card in your hand. Therefore, you will not be able to re-enter Canada or get on a plane until you have the PR card. Second, you are not restricted in the occupation regardless of how you entered. Once you enter Canada as an immigrant you are free to work in any occupation in any city – regardless of the occupation in which you applied to become an immigrant. Finally, if you marry your boyfriend after landing, you would then be able to sponsor him as a spouse.

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

By Attorney Henry Moyal

ONLINE DATING SITES CAN RAISE DOUBT TO GENUINENESS OF MARRIAGE

Q. I’m a Canadian born man who has met a Filipina online. We chatted for many months before we married in 2011 but we never met until my trip to the Philippines last winter. I want to sponsor her for immigration but I was told that we need to wait a few years to develop the relationship. We do not have any children and it is hard because my visits to see her are only for a short period of time. She is younger than me but we get along great. When is a good time to sponsor her and what should I expect to happen after the sponsorship is approved?

A. You can expect, at a minimum, an in depth interview by an immigration officer asking several questions pertaining to how you met and your relationship. There is no magic number as when you should file the sponsorship but waiting years to “develop the relationship” makes little sense to me. If the relationship is genuine and you can prove it then there should nothing to develop. If the relationship is still new and weak then you are likely going to be refused – especially if there is an age gap and you met on an internet chat site. Canada Immigration has become very suspicious of marriages of convenience and will not hesitate to refuse a case if they feel that the relationship was entered into in bad faith. If that happens you are facing an appeal which can take over a year to be heard in court. Therefore, make sure you use the new requirements for such spousal applications and obtain the proper legal advice before it is filed.

Q. I applied for permanent residence and added my spouse as my dependant. The Canadian Embassy is asking us to provide a record of marriage/certificate of no marriage. The problem is that my current spouse was actually married to someone else before we married. I agreed to marry him because his first wife disappeared and could not be found. I am afraid that his previous marriage will be a problem. Can we just file for an annulment now?

A. Filing for an annulment will not help your current situation. Firstly, an annulment can be costly and time consuming. Second, an annulment does not negate the fact that (a) your spouse committed bigamy and (b) your misrepresented yourself on the application by stating that your spouse is your husband when legally he is not. He is not legally married to you and is not your spouse. It would have been best to inform them that he was your common law partner in order to avoid this unfortunate scenario.

Q. My application at the Canadian Embassy has been ongoing for about 4 years. I’m a Certified Nursing Assistant. I know of several people in my workplace that filed their case one year ago and are already in Canada. Why am I forced to wait years and they get to fast tracked? I thought it is first come first serve?

A. In theory, your argument makes perfect sense. However, the problem is that laws changed in 2008. In that year, the minister announced changes that gave priority to several occupations. CNA is one of those demand occupations. As such, demand occupations are processed fast. The result has been that all pre-2008 cases were left in a backlog and the government does not have the resources or manpower to work both streams quickly. The result is that backlog cases are taking longer and longer to process. You may wish to consider withdrawing the old file and starting a new one under current laws.

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