By Attorney Henry Moyal

PROPER PREPARATION CAN YIELD PERMANENT RESIDENCE IN 6 MONTHS

Q. I am interested in applying for permanent residence as a skilled worker. I’m a dentist. The problem is that my work visa in Canada is expiring soon and it is unlikely to be renewed. I do not want to stay illegally. My documents are almost ready to be filed but I am lacking a few requirements such as police clearances and some reference letters. I want to send the case now but I want to be assured that it will be processed as quickly as possible. How long does it usually take?

A. In our experience, it is best to spend more time preparing a thorough application and sending it complete vs. sending it deficient of documents. It will pay off in the long run. In our experience, we always ask applicants to provide the full set of documents in order to leave no room for doubt by the officer. The results have only been positive and permanent residence is often obtained in about six months. Remember, vague documents or documents that do not prove the case will only lead to further investigation and delay. So spend more time now instead of having officer review file unnecessarily.

Q. I have sponsored by mother to Canada in 2009. The application is still in process. My mother is a widow and alone in the Philippines. We cannot wait another two years for her to come. Why does it take so long to have an elderly parent immigrate? What can be done?

A. Your frustration is very common. It is certainly taking several years to process parental sponsorships. The immigration department is only working on late 2007 applications at the moment. It is taking so long because the department has determined that such cases are the lowest priority (spouses and dependant children are first priority). The good news however, is that a new policy was recently announced (Operational Bulletin 306) stating that embassies worldwide are encouraged to issue long term multiple entry visitor visas to parents who already filed a permanent resident application. Of course, the applicants still must be admissible to Canada and prove they will be a bona fide temporary resident.

Q. I entered Canada in 2008 as a live in caregiver. I was released upon arrival and did not work for the employer who sponsored me. However, I worked at a bakery during that time and paid my own taxes. The employer (who released me as a caregiver) says they will issue me a T4 to match my tax contributions. Can I use that period of time toward my 24 months of employment?

A. Believe it or not (and to my surprise) your question is very common. I am equally surprised that applicants ask such things when it is obvious that relying on fake employment is a misrepresentation. So the answer is clearly no. You cannot use that period of employment regardless of whether you have a T4 in your hand. You may want to obtain professional help before filing your permanent resident application. Remember, information you give to a lawyer is confidential and is protected under solicitor client-privilege.

Q. I’m a Canadian Citizen and I have lived in New York for the last fifteen years with no status. I have not filed an income tax return for over a decade. I have married a Filipino man in the USA who also has no status. How can I bring him to Canada for a visit? Can I sponsor him while we are in Canada? If not, how can he return with me to Canada?

A. You are a Canadian Citizen , so you will have no problem entering Canada. Your spouse requires a visa to enter Canada and since he is illegal in USA, it is almost impossible for any US Consulate to issue him a visitor visa. So it is unlikely that you will be able to sponsor him inside Canada. The best approach is to file the sponsorship while abroad. You do not need to enter Canada now. You can enter with him once he obtains permanent residence.

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

BIGAMY CAN LEAD TO CRIMINAL INADMISSIBILITY

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

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

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

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

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

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

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

By Attorney Henry Moyal

ILLEGAL IMMIGRANT MUST STRATEGIZE TO OVERCOME IMMIGRATION HURDLES

Q. I arrived in Canada approximately six years ago as a tourist with my wife. We now have a Canadian born child. It was never our intention to overstay but I was offered a job as an electrician and I was promised that the employer would petition me for permanent resident status. Unfortunately, the employer went out of business and I have been working at odd jobs ever since. I want to apply to Canada but my biggest problem has been the fact that I was using someone else’s name. As such, I am not sure in what direction I should proceed with my application. I have no relatives in Canada but I have several friends in Vancouver who have assured me there are jobs available in my field. How do I get there?

A. I think you have some strong points but obviously there are concerns regarding a few matters. You have a window of opportunity but you must implement a good strategy to be successful. Firstly, using someone else’s name can be rectified depending on the extent thereof. Did you enter using someone else’s name but worked under your real name? The bottom line is that every applicant has the onus of providing proof of genuine work experience in an occupation in demand. The occupation of electrician is in demand and therefore you are on the right track. If you have an offer of employment in Canada, that is a plus too, but not a necessity to qualify. You also need to decide where to file the application. If you file in Manila, it is possible that no interview will be necessary.

Q. I am married to a Canadian Citizen. We have a child together. The problem is that when we married I was under the impression that my previous marriage in the Philippines was annulled. I just found out from my attorney in Manila that the annulment was only in process but never finalized. My ex-spouse just died. How do I reveal all this to immigration without facing a charge of bigamy?

A. That is a very good question. It seems you are aware that you married your current spouse while you were still married to someone else. It is irrelevant that the first spouse has now died because the act of bigamy was committed when she was alive. As a side note to readers: always have a copy of the divorce / annulment in your hand before remarrying. In my opinion, you were under the mistaken belief that you were free to re-marry and therefore no deliberate action was done to commit the criminal act (of bigamy). The best approach would be to have your Canadian sponsor you as a common law partner as you are not legal spouses of one another.

Q. I came to Canada five years ago as a permanent resident. My permanent residence was conditional. I was required to fulfil some conditions – to which I did not. I did not comply with the conditions and basically I have not notified the immigration department. It is now time to renew my permanent resident card. Can I ? Should I just apply for Canadian Citizenship instead?

A. You can certainly apply for Canadian Citizenship but I doubt it will be granted. In my experience they will hold your application and/or refuse it because they will see that the terms and conditions of your landing have not been removed. You are therefore in violation of the immigration act. You have stated that you never contacted immigration. As such, it is safe to assume that no one has contacted you nor have you been issued a report for the violation. This will certainly be discovered upon applying for a permanent resident card. Therefore, you can do nothing or face the music and apply for the card and try to explain why the conditions were not met once you are issued a report for violation. That will certainly mean one or more court appearances.

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

TWO SEPARATE PERMANENT RESIDENT APPLICATIONS POSSIBLE

Q. I live in New York and I have visited Canada several times. I am in the process of applying for my USA greencard but I am worried that it may take too long leaving me with nothing at the end. Can I apply for Canadian permanent residence at the same time as my pending greencard application?

A. Yes, there is nothing in the law that stipulates that you cannot apply for permanent residence in Canada if you have a pending immigration case in another country. Regarding the timing, it is something you will need to decide for yourself. Meaning, on average a permanent resident application filed in the USA takes approximately 16 months. I do not have the specifics of your greencard case. If you obtain Canadian residence and the greencard application is still pending you will need to find out from the USA immigration authorities what will happen to the application.

Q. I arrived in Canada just before Christmas. I consider myself to be highly educated and an asset to any company. I am planning to relocate to Canada and I have been in contact with some companies who are interested in hiring me. They have stated that they will employ me but only if I have a work permit or if I am a permanent resident of Canada. On the other hand, my elderly aunt requires a full time caregiver and some people have told me that I should just apply as a caregiver. Can I obtain a work permit while I am a visitor?

A. There are several issues here. Firstly, let’s tackle the caregiver option. Do you have caregiver training? The regulations require you to have at least six months of training as a caregiver. If you did not obtain that training prior to your arrival then it is unlikely that you will be able to obtain that training in Canada unless you obtain a student visa. Be careful and do not attempt to obtain the caregiver training as a visitor (without a student visa) because it will not be acceptable when you apply as a caregiver. Assuming you have the caregiver training and you are qualified as a caregiver, it is possible to obtain a work permit while you are a visitor. It will require some strategy and good timing but it possible by extending your visitor status and simultaneously applying for the work permit in the USA.

Let’s now explore the job offer at the company. It is a common dilemma: how can the company hire you unless I have a work permit but the work permit can only be obtained with the assistance of the company. There a different types of job offers. Some lead to permanent residence and some lead only to a work permit. Each has its own criteria but each will give you a strong boost and added points on a permanent resident application. Again, the job offer that leads to a work permit can only be processed outside of Canada. If you are interested in filing a permanent resident application, there is no need to file for a work permit as long as you qualify under the current regulations.

Q. I was married to a man when I was young in the Philippines. We separated over 20 years ago and I do not know where he is. I know that he married someone else and so have I. Can I state on my application that I am married to my current husband?

A. No. It appears that you married your current husband when you were married to another man. You are not legally married to your current spouse. However, if you have lived together for over one year you can file your application as “common law partners”.

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

By Attorney Henry Moyal

OUT OF STATUS APPLICANTS STILL HAVE GOOD OPTIONS

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

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

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

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

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

A. You must have a minimum of one year of full time work experience. That is the threshold to at least get yourself inside the door. While I do not have much information to assess your case, you need at least 1 year of work to even start. So without that you are not qualified as a skilled worker. However, depending on where your sisters live, it may be possible for them to sponsor you if there is a program in their province of residence.

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

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

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

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

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

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

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

By Attorney Henry Moyal

TOP TEN IMMIGRATION QUESTIONS OF 2010

Q1. I want to immigrate to Canada but I do not have an employer. Do I need an employer? Will you find an employer for me?

A1. 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.

Q2. I’m out of status in the USA or my visa has expired. Can I still apply and qualify for immigration to Canada?

A2. Yes. Being out of status in the USA 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.

Q3. How long does it take to process a permanent resident application? My classmate recently obtained her visa and it took her 5 years? Is the processing time the same?

A3. Processing times are much shorter now. Your friend’s case took 5 years because she must have filed before February 2008. Applicants who filed before 2008 are considered backlog applicants and it can indeed take several years to process. After February 2008, the Canadian government imposed an “occupation list”. Meaning, a specific list of occupations were designated in demand. The current list has 29 occupations. One can only apply if they work experience in one of the 29 occupations. As such, current processing time is about one year. Several ads and consultants (non-lawyers) promote their business “promising or guaranteeing” visas in six months. Those promises are false and untrue since initial first step in of itself takes about 4 months so how can the entire case take six months? Such false claims are fraudulent.

Q4. I’m a USA Citizen. Can I immigrate to Canada? Will I lose my USA Citizenship?

A4. Both Canada and USA permit dual citizenship. Therefore, you will not lose your USA citizenship.

Q5. I live in New Jersey and want to apply for immigration to Canada. I have a good job here and my children are still in school. If I apply for Canada, do I have to leave the USA?

A5. No. There is a special procedure for such cases and we have processed hundreds of application to success with the exact same fact situation.

Q6. I already applied for immigration to Canada. My visa will hopefully be issued next month. How much time do I have before I have to enter Canada? I want to finish my contract so I may not be able to leave soon. If I cannot leave in time, can I extend the time on my visa?

A6. The validity of the visa (the date upon which you must enter Canada), is the earlier of two dates: passport expiry or one year from medical exam. You cannot extend the validity date.

Q7. I’m in USA now, after I obtain my immigrant visa can I go back to the Philippines first and then enter Canada or do I have to enter Canada directly from USA? As well, my spouse is the main applicant on the application. Can I enter Canada before her?

A7. When you obtain immigrant visa you can enter Canada by air, land or sea. Any port of entry is fine. Therefore, you can enter directly from USA if you want or go the Philippines. As long as you
enter before expiry date, you should be fine. Second, the main applicant must enter Canada first or at the same time as other family members

Q8. I live in San Francisco. My wife and children are in the Philippines. If we apply as a family for permanent residence, how does that work? Will that complicate things?

A8. It is not a problem. There is a special procedure for such cases and we have processed hundreds of application to success with the exact same fact situation.

Q9. My child is over 20 years of age. I cannot include him on any USA application as he is overage. Can he be included as a dependant on my Canadian immigration application?

A9. Every applicant can include the following persons on their application: a spouse, common law partner and all unmarried dependant children. To be considered a dependant child, the child must be either:

-under 22 years old, or
-over 22 years old but must be a continuous full time student from the age of 22

Q10. Is there an age limit on immigration to Canada? I’m over 50 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 50 it does not mean you cannot qualify. You may lose some points on the age factor but mathematically you can still qualify if you have strong credentials in other areas (i.e. education, work, language etc…)

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

WORKING VISA CAN BE OBTAINED IN ONLY A FEW MONTHS

Q. I’m trying to obtain information on how to get a work permit and the time it takes to have one issued. I currently have a work permit but it will expire soon. What type of documents do I need and is it possible to apply for the visa in the USA. Does it matter the type of work that is being offered?

A. Your letter raises many issues involving work permits. It can certainly be complicated depending on one’s status and depending on the job offer. I will endeavour to cover all areas.

The first point to note is that work permits all start with an offer of employment. An applicant cannot apply for an open work permit (unless in specific scenarios outside the scope of this discussion) and therefore a working visa is employer specific.

Second, the type of work being offered is important. If a person is being offered work as a caregiver, then it is possible to obtain a work permit in a matter of months in the USA. It is important to note that in order to be within the live in caregiver program, a person’s initial work permit can only be issued from a Canadian Consulate of Embassy outside of Canada. In other words, work permits that are first issued inside Canada as housekeepers or caregivers ARE NOT considered valid under live in caregiver eligibility criteria. The applicant is able to work but time spent working does not count towards the program.

If a work permit is not in the position of care giving, the applicant must make sure that all regulatory requirements are met and that a Labour Market Opinion is obtained. While a caregiver application also requires an LMO, the requirements in advertising and wages depend on the specific position offered.

The processing times for most work permits is about two months and in many cases do not require an interview.

Once a work permit is obtained, it is possible to renew the work permit from inside of Canada. It is important to remember that it is possible to work in Canada and to simultaneously apply for permanent residence as long as one qualifies as a skilled worker.

Q. I’m writing to you from Saudi Arabia. I have been in Jeddah for over five years working as an x-ray technician. Before I arrived, I filed an annulment but it has not been finalized. My understanding is that when a person applies for permanent residence they must include all dependants. I still have a spouse but we have been separated for many years. How do I exclude my spouse? Can I send my application alone?

A. Be careful not to misrepresent yourself. Do not lie on the application because it will come back to haunt you and which may result in removal proceedings (even if you are a permanent resident). Therefore, you need to make a decision. Either you include spouse on application (as a non-accompanying spouse – no fee is paid) or you exclude him. If you include him you need to add his signed application forms. If you exclude him, you will need to produce a death certificate, or divorce certificate of annulment. Unfortunately, there is no middle ground. In other words, you cannot omit spouse from application and just say you’re just separated.

Q. What type of jobs and professions are open in Canada now? How long does it take to process an application?

A. Despite several false ads that “guarantee visas in six months”, the reality is that it takes about one year on average to process applications. The types of professions that are in high demand in Canada are:
Licensed practical nurses, pharmacists, dentists, doctors, cooks, certified nursing assistants, physical therapists and architects.

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

FIX MISREPRESENTATION BEFORE IT’S TOO LATE

Q. I’m about to apply for my open work permit and permanent resident status under the live in caregiver program. When I entered Canada I mentioned on my work permit application that I was single when in fact I was married. My spouse and I were not on talking terms so I just figured that it would be easier to file as “single”. I now want to include him on my application. Can I? Some of my friends have told me to become an immigrant first and then sponsor him because if I tell the truth now I may be deported.

A. Stop listening to your friends because that is the wrong advice. There is a procedure to explain your misrepresentation but you should not file your application as a single person if in fact you are married. That in of itself is a misrepresentation that will likely result in a refusal. While there are several reasons why people have lied on their work permit upon entry to Canada, Canada Immigration is able to “forgive you” by providing the correct documentation and explanation. However, if you try to get away with a lie on your permanent resident application that will probably be fatal to your case.

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

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

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

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

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

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

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

By Attorney Henry Moyal

SPEEDING UP PERMANENT RESIDENCE IN CANADA

Q. I read that if a person is a university graduate and has several years of work experience they are eligible to qualify as a permanent resident in Canada. I also read that an applicant does not need to have a sponsor to petition them and a person can apply on their own. Is that true? If so, how long does it take to process such an application. My old classmate is living in UAE and she told me that she has applied in 2007 and is still waiting. Does it really take that long and why?

A. There are two main issues to your question: eligibility and processing time. You are correct, under current rules an applicant can apply on their own merit without anyone’s assistance and qualify if they are under 50 years old, educated, fluent in English and with work experience. However, the processing time will likely be long for such “regular” applications as there are so many of them. It can certainly take several years to process depending on the embassy that is processing the application. It should be noted that an embassy can only accept to process a person’s application if the applicant is a national of that country or if the applicant has resided in that country for at least one year.

While some applicants at times prefer a long processing time (i.e. children to finish school, completing a work contract) there are other avenues available to expedite an application to about one year. Firstly, the most direct way to expedite a permanent resident application is to file the application via a close family’s sponsorship. In essence, the close relative in Canada will assist the applicant upon arrival and as such these types of applications are given provincial priority. It should be noted that the close family member must reside in a particular province for a certain period of time to qualify as a sponsor. There are several programs with separate rules. Examples are:

An applicant with a close family member living in Saskatchewan for at least two years will be eligible to file under that province’s family stream
An applicant with a close family member living in Manitoba for at least one year will be eligible to file under that province’s family stream. A first degree cousin is considered a close family relative in Manitoba.

The second most direct route to expedite an application is by having a job offer from a Canadian employer. Once the job offer is approved by the local human resources office in Canada, it serves as a ticket to expedite the permanent resident application.

Q. I applied for permanent residence about five years ago while I was living in the Philippines. Last year, I entered the USA on an H1B visa. Shortly after I came to the USA, the Canadian Embassy sent me a letter to attend an interview in Manila. I ignored it because I was here in the USA. I assume they just closed my file. I want to re-activate it. It seems that my company may not be in a position to continue my employment for two more years given the poor economy. I now want to immigrate to Canada. Will they be able to re-open my file?

A. I would have to say no. Firstly, if they called you for interview and you did not attend, they likely assumed you were no longer interested in immigrating and closed the file. Secondly, that file was in Manila. Do you really want to go back to Manila just for an interview? It is best to re-apply and file in the USA. From the information provided, you may be eligible for the fast track under the Federal Skilled Worker Category and you can be an immigrant in 6 -12 months.

Q. I entered Canada over a year ago as a live in caregiver. I have never stopped employment and I will be eligible to apply for permanent residence by next summer. I am now involved with a same sex Canadian citizen. My partner wants us to get married and for me to leave my employer. I do not know if that if best for me as I feel reluctant to file a same sex application. Will immigration refuse my work permit application when I renew it if they know I am married? Is it best to apply as a sponsored spouse or should I wait until next summer?

A. Since you have worked for over a year under the live in caregiver program you may wish to consider having both applications going on at the same time. I do not know if your fiancée will like that but it is probably in your best interest. That is, try not to leave the live in caregiver program unless you are absolutely sure of the marriage. While it is rare, if the sponsorship breaks down and you leave the caregiver program, you will have nothing left. I therefore suggest you get married and file the sponsorship but keep on working as a caregiver. On the other hand, if you have no reservations about the genuineness of the relationship, you can marry and file for permanent residence as a spouse of a Canadian and then change your current work permit to a visitor next time around.

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

SHORTAGE OF CAREGIVERS RESULT OF NEW RULES

Q. I’m a Canadian senior citizen. My previous caregiver recently became a permanent resident and I am having a difficult time finding someone to replace her. I have called several agencies and many have said “ we don’t do that anymore”. I have heard that the laws are more strict but why is it so hard to find a good caregiver nowadays?

A. You are not the first person to experience the shortage of qualified caregivers in the city. Once upon a time, caregivers would arrive via a sponsor with no problem. Under current rules, the employers MUST pay for all transportation costs, medical costs and agency costs. Employers are discouraged (and perhaps rightfully so) to sponsor caregivers from abroad and pay all fees because what if the caregiver leaves their employment after let’s say one week, the employer has paid everything for the caregiver. In turn, nanny agencies are feeling the pinch and many have closed. The best route is to seek a caregiver currently in Canada on a work permit or even a visitor’s visa.

Q. I just arrived in Canada last month. I was given six months to stay. I have been looking for a job but I am aware that I cannot work without a work permit. My cousin’s employer is willing to hire me as a live in caregiver but I do not have much training in that field. Can I obtain the training in Canada? If yes, can I convert my visitor visa to a work permit?

A. You cannot obtain the training in Canada unless you obtain a study permit. The study permit must be issued from outside the country (ie. USA or Philippines). If you do not have a USA visa, then you will need to obtain one if they schedule an interview. Do not make the mistake (as some do) of obtaining the training or paying a school in Canada for a PSW course without the study permit. You may indeed get a certificate but that training will not be credited to you once you file for a work permit under the live in caregiver program. If you have the requisite six month training before arriving to Canada you may be eligible to obtain a work permit under the live in caregiver program once the employer’s job offer is approved. Once approved, you can change your status from visitor to worker. However, it must be remembered that initial work permits can only be issued from outside the country. You cannot obtain your first work permit from inside Canada, despite the fact that you are physically in Canada as a visitor.

Q. I am writing from Vancouver. I entered Canada as a live in caregiver about one year ago. I never worked as a caregiver because my employer passed away shortly after I arrived. Last week, I married a Canadian Citizen and we are living together. My work permit as a caregiver is going to expire soon. I do not know if I should renew it or not. I am afraid to have my husband sponsor me because I never told immigration that my employer died.

A. I do not see any reason why you should be afraid. You have done nothing wrong and there is no obligation upon you to tell immigration if the employer dies. However, if you are going to renew that work permit that is a different story. I do not see why you would want to renew it under the deceased person’s name since you are only authorized to work for her anyway. Renewing it now for a deceased person would amount to misrepresentation in my opinion. My suggestion is to file for the spousal sponsorship as soon as you can and once pre-approved, you will be eligible for an open work permit. The pre-approval will be issued in about 6 months after submitting the sponsorship application. Therefore, it may be a good idea to change your work permit to that of a visitor in the interim. Obtain professional advice before doing so because by doing so you are taking yourself out of the live in caregiver program.

Q. I obtained permanent residence a few months ago and landed in Canada with my family. All my family members received their PR card except for me. I could not wait any longer as I had to return to UAE to complete some work. I left Canada but yesterday my wife received a letter from the local immigration office stating that I had to go there in person to take new photos. How can I get into Canada if I do not have the PR card?

A. While I understand that you were in a hurry to leave, I always advise clients not to leave Canada after landing until you have that PR card in your hand. The reason for me insisting, is exactly due to what has happened to you. It is rare but there was a problem with your photos and now you need to take new ones. That can only be done inside Canada. So how do you get back? You need to go to the nearest Canadian Embassy (ie. Abu Dhabi) and apply for a one time travel document to return to Canada.

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

By Attorney Henry Moyal

IMMIGRATION IMPOSES A 20,000 QUOTA ON FEDERAL SKILLED WORKER VISAS

Q. I heard that dentists are now in demand in Canada and qualified dentists can apply under the new rules. I heard that there is a quota on applicants. Is that true? How does a person know if they are within the quota or not? Will Canada Immigration return the application if a person is outside the quota or will they hold onto it until the next quota period?

A. On June 26, 2010, Canada Immigration announced a quota on Federal Skilled Workers. One thousand applicants under each occupation will only be permitted to apply and only 20,000 in total will be approved. The first year period will run from June 2010 – June 2011. Statistics and procedure have not been released but it is safe to assume that once the quota is met, then any surplus applications will be returned to applicants unprocessed.

Q. I was in Canada for several years as a visitor. I tried to extend my status but it eventually expired. I met my current wife who was a permanent resident of Canada at the time and we eventually married. She sponsored me and I became a permanent resident in April 2009. Last week, I obtained my divorce. I have a girlfriend who lives in New York. Can I marry her and then sponsor her to Canada? Or do I need to wait a certain time before a sponsor someone?

A. The restriction on sponsoring actually falls on the sponsor. In other words, your ex-spouse sponsored you for permanent residence. She undertook to abide by the sponsorship for three years commencing from the date you landed. Divorce does not eliminate the undertaking. Therefore, your ex-spouse cannot sponsor any other spouse until three years have passed from the time you became a permanent resident. You, however, do not have any restrictions. You, as the applicant, can sponsor a spouse as long as you are eligible. That’s the good news. The bad news that I see in this case is that you may have obtained your divorce too early. You have not stated on what grounds you filed for a divorce. Most people file on the grounds of separation of more than one year. For the purposes of this article, I will assume that you filed on the basis that you and your ex-spouse were separated for a period of one year. If that is the case, then how did you become an immigrant in April 2009? In other words, if you separated before April 2009 (you must have if you just got the divorce), then how did you obtain permanent residence in April 2009. If you were indeed separated, then that should have been disclosed to immigration and if you were separated it is likely that the sponsorship would not have been approved. I think you are in difficult position that requires professional advice.

Q.I came to Canada as a live in caregiver from Saudi Arabia. The agency told me that I would have an employer upon arrival and I paid $2000US of the $4000US contract price. When I arrived, there was no employer and I was released upon arrival. My agency took me to her home and promised to find me another employer. After three months of not working I left the agency’s house and found my own employer. I have a new work permit. The agency keeps on calling me now and texting me saying that I owe them the $2000US balance. They have threatened to take me to court. Do I have to pay?

A. In my opinion, let them take you to court and let their dirty laundry be heard by the courts and anyone else who wants to listen. This is a scam. Change your phone number so they stop calling you but I personally do not see how they have the nerve to ask you for more money when the entire application was a scam from the beginning. I am not saying the visa was a scam. I am saying that this is an old trick by agencies to get someone in Canada to complete the paperwork to want to hire you when in fact they have no intention of wanting to hire you. The goal is to get you into Canada. Once in Canada they release you and try to find you an employer in Canada. And I bet there were many caregivers in the agency’s home. Do you not find that unusual? Go to the library or internet if you have time to read an interesting article on “ghost employers” that appeared in the Toronto Star a few months.

Q. I just arrived in Canada last month. I was given six months to stay. I have been looking for a job but I am aware that I cannot work without a work permit. My cousin’s employer is willing to hire me as a live in caregiver but I do not have much training in that field. Can I obtain the training in Canada? If yes, can I convert my visitor visa to a work permit?

A. You cannot obtain the training in Canada unless you obtain a study permit. The study permit must be issued from outside the country (ie. USA or Philippines). If you do not have a USA visa, then you will need to obtain one if they schedule an interview. Do not make the mistake (as some do) of obtaining the training or paying a school in Canada for a PSW course without the study permit. You may indeed get a certificate but that training will not be credited to you once you file for a work permit under the live in caregiver program. If you have the requisite six month training before arriving to Canada you may be eligible to obtain a work permit under the live in caregiver program once the employer’s job offer is approved. Once approved, you can change your status from visitor to worker. However, it must be remembered that initial work permits can only be issued from outside the country. You cannot obtain your first work permit from inside Canada, despite the fact that you are physically in Canada as a visitor.

Q. I obtained permanent residence a few months ago and landed in Canada with my family. All my family members received their PR card except for me. I could not wait any longer as I had to return to the Philippines to complete some work. I left Canada but yesterday my wife received a letter from the local immigration office stating that I had to go there in person to take new photos. How can I get into Canada if I do not have the PR card?

A. While I understand that you were in a hurry to leave, I always advise clients not to leave Canada after landing until you have that PR card in your hand. The reason for me insisting, is exactly due to what has happened to you. It is rare but there was a problem with your photos and now you need to take new ones. That can only be done inside Canada. So how do you get back? You need to go to the nearest Canadian Embassy and apply for a one time travel document to return to Canada.

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

By Attorney Henry Moyal

CANADIAN IMMIGRATION MINISTER TO CHANGE LAWS ON SKILLED WORKERS, CITIZENSHIP AND ILLEGAL CONSULTANTS

It’s been a busy week at immigration headquarters in Ottawa where the Federal Immigration Minister Jason Kenney has unveiled new proposals from the acquisition of Canadian
Citizenship to those who prey on vulnerable immigrants.

For decades, Canadian Citizenship was bestowed on applicants who were able to show they “resided” in Canada for three years in the last four years prior to submission of application. The term “residence” seemed to have a life of its own and some courts granted citizenship to applicants who were not physically present in Canada but nevertheless had a home and strong ties to this country. For example, business people who are required to travel on a regular basis rarely can accumulate the requisite days. As such, such applicants would argue that their children and family all live and study in Canada but they must be abroad for financial reasons. In many cases it was held that the applicant “resided” in Canada for Citizenship purposes.

It now seems that the Immigration Minister wants to tighten the rules and pass law that one must be “physically present” in Canada for three years to acquire Citizenship. Therefore, the vague definition of “residence” will be replaced with “physical residence” requiring applicants to prove exact dates of living in Canada.

“Canadian citizenship is highly valued around the world and today we are taking steps to ensure it stays that way. These changes will help prevent citizenship fraud. Said Minister Kenney.”

Along similar lines, Minister Kenney finally went to bat and unveiled the Cracking Down on Crooked Consultants Act. While the title seems farcical, it is of no joke to those who have consistently cheated immigrants who desperately want to come to Canada. Many consultants in Canada, USA and abroad often provide false and improper advice to clients (i.e. claiming refugee status when there is no hope) or may charge a fee and then disappear. The federal government is now gunning for these unscrupulous individuals and will now make it a criminal offence to provide immigration legal advice unless you are a Canadian Immigration Lawyer residing in Canada or a registered CSIC consultant.

Taking it one step further, the federal minister is now also implementing a new regulatory watchdog to monitor consultants (not lawyers) under CSIC, who are currently self-governed by the Canadian Society of Immigration Consultants that was created in 2004.

The problem with CSIC is that the CSIC organization is self-governing – mandated to regulate the industry – has been criticized for being toothless, unfocused, secretive, and “mired” in litigation with its members.

It is a farce. It is like the Police Force being monitored by cops. It just does not give any credence to the organization which should be abolished. In the end, the only way to protect the public is to mandate that all immigration applications must only be prepared and submitted by a licensed lawyer residing in Canada.

Finally, as discussed several times, the skilled worker category of November 2008 is due for an overhaul. Currently, an applicant with at least one year of work experience in one of 38 occupations is eligible to apply. The minister is now looking to shrink the number to smaller list which will likely reduce occupations in the financial and computer sector. The new list has yet to be published and therefore it is crucial for applicants who currently qualified to do so sooner rather than later.

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

INVESTOR VISA RULES WILL DOUBLE IN NOVEMBER 2010

Applicants with business experience and a high net worth have routinely immigrated to Canada via Canada Immigration Business Category. This branch has three types of options: self-employed, entrepreneur and investor visa. While the self-employed category is somewhat of a rare category, in contrast the most popular over the last decade has been the investor category. It has attracted much attention in the past because: age is not a factor ; English capability is usually not a factor; there are no conditions attached to the visa. In contrast, the entrepreneur category requires applicants to establish a business in Canada and hire a Canadian in that business. If the terms and conditions are not met within three years, Canada Immigration has the right to commence removal proceedings.

It seems however, that the federal government is not taking steps to make the popular investor category and little harder. The government’s rationale is that it needs to make Canada competitive with other countries who are offering similar programs. In brief, it was too cheap and too easy for investors to immigrate. In the past, investor clients had to show a net worth of a minimum of $800,000CDN and invest a least $120,000CDN ($400,000). Starting in November 2010, the investor category will be overhauled and the monetary figures will be doubled. That is an applicant will need to show a net worth of $1.6million to qualify. New applications are no longer being accepted until the new rules take effect.

Another major change in Canada Immigration this week has been the implementation of more foreign worker rules, including caregivers.

“The government is taking action to protect temporary foreign workers, including live-in caregivers, from potential abuse and exploitation,” said Federal Immigration Minister Jason Kenney. “We owe it to them, their employers and all Canadians to ensure that the program is fair and equitable. After all, they are an essential element of Canada’s economic success.”

“Our government is taking action to improve the integrity of the program while ensuring that these people are afforded the necessary protections.”

Highlights of the changes, which come into effect on April 1, 2011, include:

a more rigorous assessment of the genuineness of the job offer;
a two-year prohibition from hiring temporary foreign workers for employers who fail to meet their commitments to workers with respect to wages, working conditions and occupation; and
a limit on the length of time a temporary foreign worker may work in Canada before returning home.

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 EMBASSY HAS BEEN SYMPATHETIC TO UNDECLARED CHILDREN

Q. I entered Canada as a skilled professional. I am a Canadian Citizen now. When I applied for immigration I was single but had a child. I was embarrassed to tell anyone so I did not include him on my application. I am now settled in Canada. Will I have a problem sponsoring my child?

A. Yes, you could face some hurdles. As you may remember, the application for permanent residence requires you to list all dependants whether accompanying you or not. It does not ask who you wish to bring to Canada. It clearly requires you to declare all children which must be medically examined. The fact that you have not declared your child upon entry constitutes a misrepresentation. As such, you fall within regulation 117 which states that your child is not considered a family member. Accordingly, he cannot be sponsored because he is not within the family class. However, there is a window of opportunity for you to have him immigrate to Canada if you have sufficient humanitarian and compassionate reasons for not declaring him. There are documented cases that permit such children to immigrate for exceptional circumstances. In other words, the sponsor had good reason not to declare the child and in recent months the Canadian Embassy has been sympathetic to genuine cases and has approved several from our office.

Q. I have completed over 24 months of employment as a live in caregiver. I am about to file for permanent residence. The application asks if I am married. I am separated and do not want to include my husband. How do I exclude him from the application?

A. Depending on when the deadline is to file the application and the length of separation, you may wish to investigate whether you are eligible to file for a divorce. Divorce will exclude him. If there is insufficient time, it may be best to still file the application now in order to get an open work permit faster. I suggest to consult an immigration lawyer for strategy.

Q. I am a Canadian Citizen. I married my husband a few months ago in New York. The problem is that my husband has no status in USA and we are afraid to initiate sponsorship proceedings for fear that he may be deported from the USA. How can he obtain a medical exam and police clearance if he is illegal in USA?

A. If you are married, go ahead and file the sponsorship. The Canadian government will not contact the USA government to deport him. Unless there is some sort of criminal issue, it does not work like that. Medicals and clearances can be obtained in the USA even if one does not have status but you must utilize the correct forms.

Q. I sponsored my parents to Canada over three years ago. I was earning a good income back then but I was laid off last year. I just received a letter refusing the sponsorship. Can I appeal? Do I need a lawyer?

A. Yes, you have the right to appeal the refusal on humanitarian grounds and on legal grounds. You must file the appeal within 30 days. Most people do hire a lawyer as there can be legal issues that are complex and lawyers have the experience to deal with such matters. While some do represent themselves, you will have to determine yourself if this is a matter that you can handle on your own.

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

TWO VULNERABLE GROUPS OF HOPEFUL IMMIGRANTS IN SAME PREDICAMENT

For decades Canada has been one of the hottest immigration destinations for foreigners around the globe. Whether it is because of Canada’s passion to welcome newcomers or Canada’s neutral role in world politics, Canada is a household name in any country in the world and a place that many can only dream to get to.

The problem with the above is that there are many who take advantage of one’s desire to immigrate to Canada and it is now common place to hear that several individuals were scammed into paying thousands of dollars for applications that were filed. A look at Canada Immigration web site warns individuals against fraudsters and places a caveat emptor mentality on prospective immigrants looking to make Canada their new home.

While the above is sound advice, in the last few months there has been an influx of media coverage and discussion surrounding two types of vulnerable groups who on one hand will do whatever it takes to immigrate and on the other hand file a legitimate application which soon falls apart due to their vulnerability.

The first group involves applicants who enter Canada as live in caregivers. This article is not a discussion of how recruiters lure applicants from abroad to work in Canada only to find no jobs here. That is a separate issue and “old news”. The issue is now taken to higher degree. The discussion is now regarding live in caregivers who have already entered Canada as live in caregivers and then pay an agency in Canada to find them a Canadian employer to act as a “ghost employer”. In other words, the employer is only an employer on paper. The work permit states “employer X” and taxes are paid for the live in caregiver by “employer X” but in reality the live in caregiver is working in a factory or bakery.

The goal is then to have the caregiver apply for permanent residence after 24 months of “employment with employer X” and all is fine. Right? Wrong!

Without getting into a discussion of how illegal the above scheme is….this article is focusing on the ever so common scenario nowadays when “employer X” refuses to cooperate after 2 years. In other words, for two years (or even less) the caregiver has “paid” all these taxes for alleged employment as a caregiver for “employer X” hoping to obtain the appropriate T4’s or ROE or Letter of Reference from the “employer X”. Then at the end the employer refuses to issue anything and the caregiver is stuck with no proof of employment and a loss of time under the caregiver program. That is, the caregiver will never be able to make up that loss time in the event they wish to change employers and genuinely work as a caregiver.

This special group of caregivers are often “left out in the cold” and do not know what to do. They are vulnerable because they fall prey to the demands of employer and they are too scared to tell anyone especially immigration as they were co-conspirators in the scheme.

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

By Attorney Henry Moyal

CHANGES TO THE LIVE IN CAREGIVER PROGRAM EFFECTIVE APRIL 1, 2010…..WILL IT EXTINGUISH NANNY AGENCIES?

The Federal Minister vowed to change the course of business for those who prey on vulnerable people who wish to come to Canada. The minister’s strategy is to go after immigration consultants (and perhaps will ban them entirely if we are lucky) and to change the live in caregiver program so workers are not overworked and employers are held accountable. This week, Minister Jason Kenney announced that there will be a new procedure when employers file for a Labour Market Opinion (LMO) to Service Canada. The new rules apply to any application filed after April 1, 2010. This new measure coupled with provincial legislation that bans agencies from charging a fee to any caregiver is certainly a step in the right direction. The end result is certainly going to affect nanny agencies in Toronto and abroad. For decades, nanny agencies made most of their revenue by charging caregivers to come to Canada to find an employer. That is now illegal under both federal/provincial law. For decades, nanny agencies/employers demanded money back from the workers to recoup for expenses incurred (travel, placement, health etc…). That too is illegal now. Will employers be willing to spend the money now to pay for the agency, pay for health cost and travel costs? We will certainly see but there is no doubt nanny agencies are not pleased. The goal now is to educate caregivers about their rights and to let them know that employers cannot deduct wages for costs the employers incurred to bring them to Canada.

THE NUTS AND BOLTS OF THE NEW LAWS
Effective April 1, 2010, all employers applying for an LMO wishing to hire a live-in caregivers must meet the following requirements:
1. Health Insurance – employers are now responsible for paying for their caregiver’s health insurance at no cost to the caregiver until he/she becomes eligible for provincial health coverage. Employers are not permitted to recoup these costs from live-in caregivers.

2. Workplace Safety – employers are now required to enroll their caregivers in provincial workplace safety insurance. This must be done at no cost to the caregiver and employers are not permitted to recoup these costs from live-in caregivers.

3. Recruitment Fees – employers who wish to use a recruitment agency to hire a foreign live-in caregiver must pay for all the services provided by the agency and must pay all fees and costs associated with such a recruitment agency. Employers are not permitted to recoup recruitment fees or other costs associated with the use of such an agency from the caregivers.

4. Transportation costs – employers are required to pay the transportation costs for bringing their caregivers to Canada. In the instance where foreign caregivers are already in Canada, employers are responsible for paying to relocate them to the location of work (where care giving will take place) at no cost to the caregiver.

5. Mandatory Employment Contract -employers must submit to Service Canada an employment contract with their LMO application to hire a foreign live-in caregiver. The employment contract must include the following:

Duration of the contract
Duties of the position
Hours of work
Accommodation arrangements
Registration for provincial workplace safety coverage
Transportation costs and arrangements
Health Care provisions
Recruitment fees
Terms of resignation and termination

In the past, the employer-worker contract was only required to be submitted to the embassy before a work permit was issued. Now, detailed contracts are required up front and will require a signature from the employer (not an agency).

***Attention Permanent Resident Applicants: Effective April 2010, all applicants who file an application to the Centralized Intake Office in Sydney, Nova Scotia will only have once opportunity to submit an IELTS English proficiency test. In the past, it was possible to delay the application to the Canadian Embassy requesting more time to obtain a higher score. Not any more. Now, any application received after April 10, 2010 will mean that applicants will have to present their strongest IELTS score before the four month stipulated deadline.***

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

MISREPRESENTING MARITAL STATUS IS COMMON

Q. I’m about to apply for my open work permit and permanent resident status under the live in caregiver program. When I entered Canada I mentioned on my work permit application that I was single when in fact I was married. My spouse and I were not on talking terms so I just figured that it would be easier to file as “single”. I now want to include him on my application. Can I? Some of my friends have told me to become an immigrant first and then sponsor him because if I tell the truth now I may be deported.

A. Stop listening to your friends because that is the wrong advice. There is a procedure to explain your misrepresentation but you should not file your application as a single person if in fact you are married. That in of itself is a misrepresentation that will likely result in a refusal. While there are several reasons why people have lied on their work permit upon entry to Canada, Canada Immigration is able to “forgive you” by providing the correct documentation and explanation. However, if you try to get away with a lie on your permanent resident application that will probably be fatal to your case.

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

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

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

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

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

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

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

By Attorney Henry Moyal

TACKLING MEDICAL INADMISSIBILITY

We all hope that applicants to Canada are healthy and free of any ailment or disease. However, applicants (and their dependants) are often faced with medical issues that may render them inadmissible to Canada. The question therefore is what constitutes medical inadmissibility? What kind of medical condition will result in a refusal of the application for an applicant and their dependants? Further, if one is indeed found to be medically inadmissible how does one appeal the medical decision in order to overturn the negative decision?

TYPES OF MEDICAL INADMISSIBILITY

There are basically two types of medical scenarios that can lead to a finding of inadmissibility and refusal of an application. The first is a medical finding that the applicant has a medical condition that is a danger to the public (for example Tuberculosis). The other more common ground is a medical finding that the applicant’s medical condition is so severe that it will cause an excessive demand on Canada’s heath/social services. In other words, the person has a disease or medical condition that requires hospitalization, doctor’s visits, surgeries etc… that exceeds what a “normal” Canadian charges to the health system. That amount is called the Canadian Cost Per Capita and is currently $5143 per year. It should be noted that the Federal Court in recent cases has stated that the notion of excessive demand automatically means that there is a certain amount of demand that is acceptable. The question is whether the applicant requires it excessively.

As such, medical officers are now becoming more accustomed nowadays in providing details and specific costs that support their conclusion of how the applicant’s condition exceeds the $5143 per year. That is, more often than not, medical officers are now providing a cost analysis and details of what it costs for prescription drugs, surgeries to support medical refusals.

HOW TO APPEAL

So how does one appeal or overcome a medical refusal? There are generally three ways to tackle a medical inadmissibility finding.

(i) On Medical Grounds – Immigration Canada will always provide a fairness letter to applicants before rendering a refusal. In other words, after the medical evidence is in, the visa officer will communicate with the applicant before rendering a final decision and will offer the applicant a last opportunity to provide submissions or evidence. The time frame is usually sixty days. It is at this time the applicant has the opportunity to rebut and counter the medical finding of the immigration doctor. Applicant’s can seek other medical letters and evidence from other medical doctors and specialists.

(ii) The courts have recently held that visa officers now must consider the applicant’s financial status in order to determine if the application should be refused. That is, if the applicant has the ability and intent to pay for the medical costs, that must be considered by the officer and at times can avert a refusal. For example, if the main applicant has a young autistic child, the application may be refused on the basis that the child will require special education and social services by the province. If the applicant can show that they have the funds to pay for the school, such factors will be considered.

(iii) Humanitarian and compassionate factors can always be raised when dealing with a potential medical refusal. Especially with family class refusals (where sponsors have an automatic right to an appeal), the appeal board will consider humanitarian and compassionate reasons. For example, the applicant has no ties to their home country, medical attention is not available in the home country and ties to the sponsor in Canada.

MEDICAL EXEMPTION

Under new regulations, an applicant who is the spouse of a Canadian Citizen/PR and who is being sponsored for permanent residence under the family class cannot be refused for medical inadmissibility on excessive demand grounds.

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

By Attorney Henry Moyal

DON’T WASTE TIME ON HOPELESS CASE

Q. I’m a visitor in Canada. My visitor visa expires in two months and I am trying to figure out a way to stay longer other than applying for a regular extension. My husband is living illegally in the USA and I am also thinking of joining him there yet I do not have a USA visa. My classmate lives in Scarborough and is willing to sponsor me as a caregiver but I do not have any education after high school. People have told me to apply for a student visa or for a refugee status? I am confused as to what to do. What can you suggest?

A. Sometimes you need to face reality and be smart about what your chances are. I think your case is a very difficult one and will likely be refused no matter what you file. I suggest not to waste time and money on applications that will result in zero. You do not qualify for the skilled worker category because of your lack of post secondary education. Similarly, you need to have at least 72 units of post secondary education to qualify under the live in caregiver program. You may have an employer but that will lead to nothing. Do not be fooled by false promises from consultants and agencies. Likewise, filing for a student visa will mean that you will pay lots of money for a program that you will probably not be able to attend because student visas can only be issued in the Philippines. If your spouse is illegal in USA, it is likely that USA immigration authorities will deny you a visa on that basis. It may not be what you want to hear but applying for a visitor extension is the only choice and/or return home to upgrade your education.

Q. I came to Canada about ten years ago as an independent immigrant. I included my wife and three children. We all obtained visas to come to Canada. My eldest daughter however had some medical issues and could not travel. She was 17 then and is now 27 years old. She never validated her visa. We still have it. Can I reactive the visa somehow? Can I appeal the application under humanitarian and compassionate grounds?

A. Your daughter never became an immigrant. That being said, there is no humanitarian and compassionate ground to argue here. If she landed (even for one day only), then it can be argued that her absence was outside her control. However, the visa has expired and there is no appeal process for such a case. Writing letters to the local MP or to the Canadian Embassy will not help as no error was committed. The only solution would be to re-apply for her again either through a sponsorship or as an independent immigrant.

Q. I’ve applied to sponsor my parents to Canada. The application has taken about three years and along the way my parents have naturally gotten older and aged. The embassy has sent us a letter stating that they believe my father has a medical condition that will be an excessive demand on health services. They are giving us sixty days to provide more information. What kind of information do they want to see?

A. You have not indicated what type of medical condition it is. It is obviously a medical condition that is not a danger to the Canadian public (ie. TB) but is a condition that is so severe that it will cause your father to be excessive on health services. An excessive demand is a demand for which the anticipated costs exceed the average Canadian per capita health and social services costs, which is currently set at $5143 per year. You therefore need to obtain details on the condition and the amount he exceeds. Recent case law and court cases have now indicated that an officer now must look at the sponsor’s ability and intent to pay for such services. Therefore, if you can show that you have the financial means to pay for these excessive costs, you may be able to avert a refusal. In a worse case scenario, don’t forget that if you are refused then you have the right to an automatic appeal. At that appeal you can argue humanitarian and compassionate grounds.

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

By Attorney Henry Moyal

JOB OFFER NOT REQUIRED TO QUALIFY FOR IMMIGRATION

Q. I’m working in the USA on a valid H2 work visa. I have several years of work experience as a Chef. I have been trying to locate an employment agency in Canada to help me work under the low skilled program which guarantees me a job for two years. I’ve been unsuccessful and was wondering if this program still exists. What other options are available to me in order to enter Canada in the fastest possible time?

A. The occupation of Chef is actually a high skilled position – not a low skill occupation. You are correct that there is a low skilled program which permits applicants to work for two years in a low skill position. However, in most cases, the applicant must return back to their home country after the two years. As well, no credit is given for low skilled work if one is applying for permanent residence. Thirdly, an applicant first must have a Canadian employer sponsor them in order to apply for the low skill program. All in all, it is not a preferred program for applicants who are qualified under other categories. That being said, you appear to have a strong case in applying for permanent residence directly – and with no prerequisite in having a job offer. In other words, your occupation of Chef is in demand in Canada and applicants with work experience in an occupation in demand are able to obtain permanent residence on a priority basis – about one year and no job offer is required.

Q. I am applying for permanent residence in Canada. I lived in Dubai for three years and in New York for two years. My work and education were all conducted in the English language. Do I still need to take the IELTS English exam?

A. As you may know, Canada’s immigration system works on a point grid. The highest score you can obtain for English is sixteen. That does not mean you necessarily must score the maximum of sixteen because your required score depends on other factors. As such, if you need only a few points you probably do not need to take the IELTS. As well, in some cases, a written submission may be accepted in lieu of the IELTS. However, my advice to all clients is as follows: If you have the time, take the IELTS because the score will be regarded by Canada Immigration as conclusive evidence of language ability and if the score is accepted it will usually lead to waiver of the interview.

Q. I applied for permanent residence at the Canadian Embassy in 2007. I’m a nurse with over 20 years of work experience. I know that the new laws will give priority to nurses but my application was filed under the old laws. I just received a letter from the Canadian Embassy asking me to withdraw my old file, get a refund and then apply under the new laws. They seem to suggest in their letter that it will be faster if I do that? What do you think?

A. I am familiar with this standard letter and you must be very careful. Yes, it sounds like it will be faster and maybe it will. However, you need to look at all the factors before you cancel a three year old file. Remember, you will not be transferring one file to another. You are cancelling one and then starting a new one. Be also careful regarding your age and that of dependants. The age is locked in for the first application but if you start today, the age is locked in as of today’s date. While it is promising that applicants can expedite their cases under the new laws, it is not for everyone and must be looked at on a case by case basis.

Q. I entered Canada as a live in caregiver one year ago. I am living with my fiancé who is a Canadian Citizen. We were told that if we marry I still must wait to complete my 24 months as a caregiver before he can sponsor me. Is that correct? Why can’t we marry and then I forget about my caregiving program?

A. You absolutely can. You do not need to complete the caregiving program is you marry a Canadian and he sponsors you. My advice actually is always to have both going on at the same time just in case something happens with your relationship.

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