Category Archives: Uncategorized

NEW LAWS FOR WORK PERMITS FOR STUDENTS STUDYING ONLINE

NEW LAWS FOR WORK PERMITS FOR STUDENTS STUDYING ONLINE

By Atty. Henry Moyal

  1. I’m an international student who was expected to study in the fall 2020 at Seneca College. I cannot enter Canada due to Covid-19. How is Canada helping people like me?

 

  1. One of the most affected groups during these unprecedented pandemic times are students. Due to Covid-10 many international students who would like to study in Canada this fall are facing uncertainty due to travel restrictions. As such, IRCC has announced 3 new programs on post-graduation work permit eligibility for students beginning programs online.

According to IRCC policy, these changes are being implemented to provide more flexibility on eligibility rules for the Post-Graduation Work Permit Program for students who need or want to start their Canadian study program online from abroad.

The changes are:

  1. Students may now study online from abroad until April 30, 2021, with no time deducted from the length of a future post-graduation work permit, provided 50% of their program of study is eventually completed in Canada.
  1. Students who have enrolled in a program that is between 8 and 12 months in length, with a start date from May to September 2020, will be able to complete their entire program online from abroad and still be eligible for a post-graduation work permit.
  2. Students who have enrolled in a program with a start date from May to September 2020 and study online up to April 30, 2021, and who graduate from more than one eligible program of study, may be able to combine the length of their programs of study when they apply for a post-graduation work permit in the future, as long as 50% of their total studies are completed in Canada.

To be eligible for these measures, students must have submitted a study permit application before starting a program of study in the spring, summer, or fall 2020 semester, or the January 2021 semester. All students must eventually be approved for a study permit.

 

  1. Me and my spouse are already in Canada and she just completed her 2 years diploma course and waiting for her certificate. Our visa is expiring on December 25, 2020.  Spouse is going to apply for post graduation work permit soon and no issues related to that.

 

I am on a open work permit and working here in IT since last 5 months. Can I apply for post grad work permit too?

 

  1. You can only apply for an open work permit extension when your wife gets a job in any NOC category ( 0, A or B). In order to be more specific spouses or common-law partners of skilled people coming to Canada as foreign workers may themselves be authorized to work without first having an offer of employment. A dependent spouse is eligible to apply for an open work permit if the principal foreign worker
  • holds a work permit that is valid for a period of at least 6 months, or, if working under the authority of section R186 without a work permit, presents evidence that they will be working for a minimum of 6 months;
  • is employed in an occupation that falls within National Occupational Classification (NOC) skill type 0 or skill levels A or B (which generally include management and professional occupations and technical or skilled trades [see the NOC website]);
  • physically resides or plans to physically reside in Canada while working.

Second, if the principal foreign worker is the holder of an open work permit (e.g., post-graduation work permitworking holiday work permit), IRCC cannot assess the skill level based only on the open work permit, and the spouse or common-law partner applying for the C41 exemption will need to attach proof that the principal worker is employed in an occupation in skill level 0, A or B.

.

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

 

 

VISITORS CAN NOW APPLY FOR A WORK PERMIT FROM INSIDE CANADA WITHOUT HAVING TO LEAVE

VISITORS CAN NOW APPLY FOR A WORK PERMIT FROM INSIDE CANADA WITHOUT HAVING TO LEAVE

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

  1. I’m a visitor in Canada and have a job offer from a Canadian employer. I cannot leave Canada due to Covid. How can I get my work permit?
  2. New rules were just published that benefit new. Usually, a visitor in Canada must obtain their initial work permit from outside Canada. Effective immediately, due to Covid, visitors in Canada with a job offer are able to apply for an employer-specific work permit and receive the permit without having to leave the country.

To be eligible, applicants must

  • have valid status in Canada as a visitor on August 24, 2020 and remain in Canada (applicants who arrive in Canada as visitors after August 24, 2020, are not eligible

 

  • have a job offer

 

  • submit an application for an employer-specific work permit that is supported by a Labour Market Impact Assessment (LMIA) or an LMIA-exempt offer of employment, no later than March 31, 2021

 

  1. I’m a live in caregiver in Barrie and work overtime most weekends. When I asked my employer to pay for the extra hours they refused. I also want to spend weekends at my sister’s home in Toronto but my employer demands that I stay in the home as I am a live in. How can I explain to my employer that he is breaking the rules?

 

  1. The live in requirement is no longer permitted as the laws have changed. You should explain to the employer that the law in Ontario requires them to pay you 1.5x your hourly wage after 44 hours. That is the law. In reality, forcing the law against your employer may put a strain on your relationship resulting in you being fired. While the employer cannot fire you for knowing the law, they will just find an excuse to let you go. It is clear that you are being abused as the employer is committing several violations. It is for this exact reason that Canada Immigration has started the Vulnerable Worker program. In the past, caregivers and worker like you would just suffer for fear that you will not become a permanent resident. The good news is that the vulnerable work permit is an open work permit that will allow you to find a new employer and gain legal employment towards permanent residence.

 

 

  1. I’ve been working in Canada in several jobs after graduating from Seneca College. I do not have one year of work experience with one employer. I do have over one year of experience but with three separate employers of four months each. Is that acceptable to apply for permanent residence?

 

  1. It depends on the type of work and the program you are applying under. As well, you should keep in mind that work experience is only one factor of many. Assuming you meet the other criteria, you can accumulate 12 months of work experience with several employers only under the Canadian Experience Class program. As well, the work experience must be a skilled position under NOC O, A or B.

 

 

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

REGULAR IMMIGRATION PROCESSING HAS RESUMED POST COVID

REGULAR IMMIGRATION PROCESSING HAS RESUMED

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

  1. I sent an application to Case Processing Centre in Sydney, NS to sponsor my wife in the Philippines in February 2020. I have heard nothing since then. It has been over six months and I am wondering why I did not receive any acknowledgment and if this will delay the entire application?

 

  1. Processing at the Case Processing Centre in Sydney came to a halt on March 15, 2020. While applications were still being received, not much has happened by way of processing due to Covid-19 and limited resources. Processing resumed on July 29, 2020 and they have now started to send out acknowledgments of applications filed in January 2020. So you can assume the same processing times you were experiencing before the pandemic with a few months months added on. Hopefully they will start to close the gap as there is no doubt that the number of applications filed since March 2020 was significantly low (er) due to the difficulty in obtaining documents to file the actual application.

 

  1. I’m on an IEC open work permit holder.  It is expiring in one month. I recently married a Filipina Canadian woman and we want to file the sponsorship together with my open work permit. If I file the work permit before the IEC expires, will I be able to continue to work or do I need to wait until I receive the spousal sponsorship work permit.?
  2. The law states that an applicant may work in Canada without a work permit “until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;

 

 

Further, the law states that an applicant may apply for the renewal of their work permit if
(a) the application is made before their work permit expires; and
(b) they have complied with all conditions imposed on their entry into Canada.

 

Is your IEC work permit an open work permit? Are you applying before the expiry?

Did you comply with the conditions of the IEC work permit?

 

If yes to all of the above, then in my opinion, the answer to your question is yes. You have implied status and you can work.

 

 

 

 

  1. I sponsored my wife who lives in Manila over a year ago. Her immigrant visa was ready in December 2019 but she could not travel to Canada as her mother was ill. Then came Covid-19 and her COPR has now expired.

Do I need to sponsor her all over again?

 

  1. You should contact IRCC to let them know that you were not able to travel. In general, if COPR was issued before March 18, 2020, an applicant
  • is exempt from the travel restrictions
  • can travel to Canada for non-discretionary reasons with the COPR and PRV in order to settle and live in Canada as a permanent resident and
  • must have an acceptable plan to quarantine for 14 days in Canada

Applicants must check the issue date in the Application Details section of their COPR to see if this applies to them.

 

 

 

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

 

AMNESTY GRANTED FOR VISITORS, WORKERS AN STUDENTS WHO LOST STATUS AFTER JANUARY 20, 2020

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

Did you lose immigration status after January 20, 2020? It is common knowledge that temporary residents in Canada must renew their status before it expires. But what if a person didn’t? Normally, visitors students or workers in Canada have 90 days after their immigration status expires to apply to Immigration, Refugees and Citizenship Canada (IRCC) to restore it. That has been the rule for decades.

In other words, an applicant has 90 days after the expiry of their status to restore that status which must be accompanied by the $200 “penalty’ fee.

However, during the COVID-19 pandemic, many have faced difficulty finding flights home especially with air travel limited around the world. As well, many do not feel comfortable leaving their homes to venture on to a plane.

As a result of the pandemic and its associated challenges, IRCC has issued a public policy that provides an extension to apply for restoration beyond the current 90-day timeframe for foreign nationals in Canada. Workers, students and visitors whose status expired after January 30, 2020, and who remained in Canada have until December 31, 2020, to apply to restore their status, provided they meet the requirements for the type of status and authorization they are applying to restore.

Further, the new policy also allows former work-permit holders applying for an employer-specific work permit to work while a decision on their restoration application is pending. To do so, they need to

  • have a job offer
  • submit a work permit application that is supported by a Labour Market Impact Assessment (LMIA) or an LMIA-exempt offer of employment

In a similar vein, temporary residents in Canada are no longer required to do biometrics and do not need to pay for biometrics. Applicants are exempt from giving biometrics if they are in Canada and are applying from within Canada:

  • to extend their stay as a student, worker or visitor
  • to restore their status as a student, worker or visitor
  • for a work or study permit
  • for a visitor visa
  • for a temporary resident permit

This applies to all new applications as well as applications already in progress.

It applies even if the online application system asks to pay a biometric fee (CAN$85). Applicants under this new policy do not have to pay the biometric fee, even if the system says to pay it.

 

 

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

 

 

OUT OF STATUS APPLICANTS HAVE UNTIL DECEMBER 31, 2020 TO RESTORE STATUS

OUT OF STATUS APPLICANTS HAVE UNTIL DECEMBER 31, 2020 TO RESTORE STATUS

 

JULY 14, 2020:

Visitors and study or work permit holders in Canada normally have 90 days after their temporary immigration status expires to apply to Immigration, Refugees and Citizenship Canada (IRCC) to restore it.

During the COVID-19 pandemic, temporary residents who remained in Canada have been encouraged to renew their work or study permits to maintain their legal status in Canada. However, the pandemic has had an impact on the ability of temporary residents to provide complete applications, and on IRCC’s ability to process them. In addition, many temporary residents have had difficulties finding flights home, with air travel limited around the world.

As a result of the pandemic and its associated challenges, a new public policy has been implemented that provides an extension to apply for restoration beyond the current 90-day timeframe for foreign nationals in Canada. Former workers, students and visitors whose status expired after January 30, 2020, and who remained in Canada will now have until December 31, 2020, to apply to restore their status, provided they meet the requirements for the type of status and authorization they are applying to restore.

 

 

 

 

Henry Moyal, Barrister & Solicitor
8 Finch Ave. West
Toronto, Ontario
M2N 6L1  Canada

Tel: 416 733 3193
Fax: 416 733 3742

canada@moyal.com

www.moyal.com

BIOMETRICS EXEMPTIONS ANNOUNCED DURING COVID

BIOMETRICS EXEMPTIONS ANNOUNCED DURING COVID

 

 

July 14, 2020

 

Biometrics exemption for temporary residence applicants in Canada

As a temporary measure, you’re exempt from giving biometrics if you’re applying from within Canada

  • to extend your stay as a student, worker or visitor
  • to restore your status as a student, worker or visitor
  • for a work or study permit
  • for a visitor visa
  • for a temporary resident permit

This applies to all new applications as well as applications already in progress.

It applies even if

  • your application form for a work permit, study permit or visitor visa says it’s for applicants outside Canada
  • our online application system asks you to pay a biometric fee (CAN$85)

This temporary measure does not apply if you’re outside Canada.

 

Henry Moyal, Immigration Lawyer

www.moyal.com

IN-CANADA APPLICANTS MUST FILE APPLICATIONS ELECTRONICALLY

IN-CANADA APPLICANTS MUST FILE APPLICATIONS ELECTRONICALLY

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

 

Just in time for the pandemic, Canada Immigration is now requiring all applicants who are in Canada as temporary residents and are seeking to extend their temporary resident status or their authorization to work or study must apply by electronic means only, unless otherwise specified.

To be specific, the following applications must be made by the electronic means – which means that applicants can no longer send paper based applicants ( unless unable to do so due to a disability).

  • an application for an extension of an authorization to remain in Canada as a temporary resident
  • an application that is made in Canada for a work or study permit or for renewal of such a permit
  • an application for the restoration of temporary resident status
  • an application that is made pursuant to a youth mobility arrangement entered into by Canada

The following applications are exempted:

Open work permit pilot program for permanent residence applicants in the spouse or common-law partner in Canada class
Live-in caregivers who have submitted an application for permanent residence
Permanent residence applicants in Canada who used Express Entry to submit their permanent residence application and have received an acknowledgment of receipt letter
Start-up visa work permit applicants
Quebec physicians
  In-Canada applicants under the 2 pilots for caregivers:

  • Home Child Care Provider Pilot (HCCPP)
  • Home Support Worker Pilot (HSWP)
Destitute students
Holders of a temporary resident permit valid for a minimum of 6 months
Seafood-processing workers
Non-Seasonal Agricultural Worker Program (SAWP) Guatemalan workers
Urgent referrals process for work permits or otherwise specified by the Clients Support Centre’s call handling document
Refugee claimants
Persons under an unenforceable removal order
Failed refugee claimants waiting for removal who need to support themselves

 

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

 

CANADA IMMIGRATION RESUMES PROCESSING OF VISITOR APPLICATIONS POST PANDEMIC

CANADA IMMIGRATION RESUMES PROCESSING OF VISITOR APPLICATIONS POST PANDEMIC

As of July 1, 2020, Immigration, Refugees and Citizenship Canada (IRCC) will once again process online applications for visitor visas (including transit visas) and electronic travel authorizations (eTAs), to the extent possible.
Resuming processing and making final decisions where possible on visitor applications will help IRCC ensure future processing times aren’t significantly impacted and help expedite people’s travel when the travel restrictions are lifted.
However, due to current travel restrictions, applicants should keep in mind that, even if they apply and get a visitor visa or eTA, most people will not be able to travel to Canada at this time.

Henry Moyal, Immigration Lawyer

ENTERING CANADA DURING THE COVID-19 PANDEMIC

ENTERING CANADA DURING THE PANDEMIC

 

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

 

There is no doubt that these are unprecedented times and 2020 will always be known in history as the year of the Covid-19 pandemic. There is also no doubt that the pandemic has taken everyone by surprise and many have questions on proper safety protocol and the future of immigration. However, those following IRCC in the news will know that Canada Immigration did not / has not stopped processing applications for permanent residence. While physical offices have been closed and in person interviews have been cancelled, Canada Immigration has been business as usual and working electronically.

 

The main changes in IRCC processing during pandemic has been however those seeking to enter Canada. The following are the guidelines:

 

Canada Border Services Agency (CBSA) will deny entry to any foreign national who displays symptoms of COVID-19 or whose travel is for an optional or discretionary purpose, such as tourism, recreation or entertainment.

 

If You Are Coming to Canada for Work:

 

Travelling from the United States (U.S.):

 

Foreign nationals seeking to enter Canada from the U.S. must:

 

  1. Not display symptoms of COVID-19; and
  2. Must be able to demonstrate that they can meet the requirement to quarantine under the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 2; and
  3. Not be travelling for an optional or discretionary purpose, such as tourism, recreation or entertainment.

 

If you meet conditions 1 and 2, the purpose of your travel will be considered non-optional or non-discretionary if:

 

Your place of habitual residence is in Canada and you hold a valid work permit; or

You are coming to Canada for the first time to begin your employment and are in possession of a valid work permit or a work permit approval letter, and have proof of employment at a Canadian business which is operating; or

You do not have a valid work permit or an approval letter but are eligible to apply for a work permit at a port of entry pursuant to section 198 of the Immigration and Refugee Protection Regulations and have proof of employment at a Canadian business which is operating.

 

Travelling from a Country Other than the U.S.

 

Foreign nationals seeking to enter Canada from a country other than the U.S. must:

  1. Not display symptoms of COVID-19; and
  2. Qualify for an exemption listed in section 3(1) of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from any Country other than the United States); and
  3. Not be travelling for an optional or discretionary purpose, such as tourism, recreation or entertainment.

If you meet conditions 1 and 2, the purpose of your travel will be considered non-optional or non-discretionary if:

Your place of habitual residence is in Canada and you hold a valid work permit; or

You are coming to Canada for the first time to begin your employment and are in possession of a valid work permit or a work permit approval letter, and have proof of employment at a Canadian business which is operating.

 

It should also be noted that in accordance with Immigration, Refugees and Citizenship Canada (IRCC) program delivery guidelines, work permit applicants travelling to Canada from a country other than the U.S. must have approval from IRCC prior to travel. If you are travelling from a country other than the U.S., you will not be permitted to make an application for a work permit at the port of entry.

 

If you are flying to Canada, you can expect that your airline agent will conduct a health check to ensure that you are healthy enough to fly. In addition, the airline agent may also ask that you provide proof of your eligibility to travel and that you meet all conditions for travelling to Canada set out above. Failure to do so may result in the airline not permitting you to travel.

 

 

 

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

 

 

WILL CANADA IMMIGRATION SUSPEND VISA PROCESSING DURING PANDEMIC?

WILL CANADA IMMIGRATION SUSPEND VISA PROCESSING DURING PANDEMIC?

 

So far the answer is no. Canada Immigration is still processing applications despite closure of their physical offices.

However, south of the border is a different story. On June 22, 2020, President Trump issued a proclamation barring many categories of foreign workers and curbing immigration visas through to Dec 31 2020, to protect U.S. workers reeling from job losses amid the coronavirus pandemic. The measures will apply only to new applicants seeking to come to the United States.

Many companies in the technology sector, landscaping services and the forestry industry will suffer greatly. It excludes agricultural laborers, health-care professionals supporting the pandemic response and food-service employees. The freeze announced Monday will apply to the H1-B visa category for highly skilled workers, the H-4 visa for their spouses and the L visas companies use to transfer international employees into the United States.

 

 

Henry Moyal, Barrister & Solicitor
8 Finch Ave. West,
Toronto, Ontario
M2N 6L1  Canada

Tel: 416 733 3193
Fax: 416 733 3742

canada@moyal.com

www.moyal.com

Agricultural & Food Immigration Program to launch March 2020

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

  1. I’ve been working at a farm in Canada and I want to become an immigrant. I do not have high education and I do not have any relatives in Canada. My occupation is not a trade. I seem to be stuck and ineligible for all current programs. How can I become a permanent resident?
  2. You are correct. Qualified agricultural workers who cannot fit into the current express entry programs ( federal skilled, registered trade for example) seem to have been forgotten and fallen through the cracks.

It seems Canada Immigration has been listening to the needs of the industry and this month will help address the labour needs of the Canadian agri-food sector, particularly in yearround mushroom and greenhouse crop production, meat processing and livestock raising industries. The new program is for applicants who have at least one year of work experience in Canada in one of the following nine occupations:

  • NOC B 6331 – Retail butchers
  • NOC C 9462 – Industrial butchers
  • NOC B 8252 – Farm supervisors and specialized livestock workers
  • NOC D 9617 – Food processing labourers
  • NOC B 8252 – Farm supervisors and specialized livestock workers
  • NOC C 8431 – General farm workers
  • NOC D 8611 – Harvesting labourers
  • NOC B 8252 – Farm supervisors and specialized livestock workers
  • NOC C 8431 – General farm workers

Applicants do not need a college diploma or university degree. Applicants only require high school education, a job offer and a modest level of English proficiency.

 

  1. I have applied for permanent residence under express entry. My score is over 400 but still not high enough to be selected. My sister lives in Vancouver and just had a baby and needs help as she has three boys. Can she sponsor me under the new caregiver program? Do I need to cancel my express entry application to do that? Can I apply for the caregiver application while I am in Canada?

 

  1. There are several issues here. First, can you apply for both the express entry application and caregiver pilot at the same time? Yes.

Can your sister provide the requisite job offer? Yes but there are other factors. Canada Immigration cannot refuse the application on the sole basis that she is your sister. That is not valid. However, if Canada Immigration feels that your sister is offering the job solely to assist you with your immigration application it will be refused as Canada Immigration will determine that the job offer was not genuine. You have stated that your sister has three children? The ages may matter. As well, how was she handling caregiver needs up to now? Does she have sufficient income to pay the wages for a caregiver? Is your sister married or a single mom? All these factors will play part in determining if the job offer will be considered to be valid.

If it is , the you will be issued an open work permit for 36 months. However, the next issue is where will the work permit be issued?

Only the following persons can obtain a work permit in Canada and file in-Canada application while currently in Canada:

  • have a valid study or work permit, are on implied status or eligible for restoration
  • your spouse, common-law partner or parents have a valid study or work permit
  • you’ve graduated from a program at a:
    • Canadian university
    • community college
    • publicly funded trade/technical school
  • you have a temporary resident permit that is valid for 6 months or more
  • you’re allowed to work in Canada without a work permit but you need a work permit to work in a different job

 

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

 

WHEN IS AN ERROR ON AN APPLICATION AN INNOCENT MISTAKE?

 

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

 

  1. I obtained an offer of employment to work in Canada. The employer obtained the required LMIA and I applied for the work permit at the Canadian Embassy. I was ready to return back to Canada until surprisingly I received a refusal letter indicating that I may be banned for 5 years due to misrepresenting a material fact. The letter says that I did not indicate on the form that I was refused a US Visa in the past. I have obtained visas to Canada before and this was mentioned so it is in their computer, right? I completely and innocently forgot to mention my USA visa refusal this time focussing more on my visa to work in Canada , not USA? What do I do now?

 

  1. Perhaps coincidence, but I have seen an increase in the number of cases in which applications are being refused and the five-year ban implemented for relatively minor misrepresentations. I do not have exact statistics but it seems that Canada Immigration is enforcing the minor representations quite strictly. The most common misrepresentation is the failure to declare the refusal of a past U.S. visa application as in your case. Visa officers seem to have access to the U.S. database and routinely check this for inconsistencies with applications. As well, if an applicant applied previously and mentioned the refusal but later omitted it on a second application, that too can be a misrepresentation.

 

Unfortunately, the law says under section A40 that any material misrepresentation gets you a five year ban. But what if a person sincerely forgot and made an innocent mistake?

 

To answer this one must review the operations manual which has long recognized that honest and reasonable mistakes should not

necessarily lead to a severe finding of misrepresentation. The higher courts have adopted this and there are cases that have held that there are exceptions to the law

in particular, where previous U.S. immigration history was not disclosed.

 

In many cases, the exception has been applied to circumstances where the

information alleged to be omitted was otherwise correctly listed in other

parts of the application or in reviewing other documents submitted as part of the

application. This suggests that there was no intention to mislead.

 

Did you mention your USA refusal elsewhere? Was it part of a previous submission? Contact an immigration lawyer who will be able to research the case law and provide assistance on this delicate manner.

 

 

 

 

  1. I came to Canada as a student. I graduated and I am now working under an open work permit ( post graduate). I believe I have sufficient points to be an immigrant on my own. However, I will be marrying my girlfriend next month.

She is willing to sponsor me. Can I submit two applications at the same time?

 

 

  1. As you probably know, each application has its own specific criteria. While the first application requires you to prove you have English language skills and work experience the sponsorship does not. Conversely, the sponsorship require you to prove your marriage is genuine but the first one does not. Therefore, it depends on how you want to file your application. If you are ok with providing both sets of applications and paying two government fees, you can indeed send both simultaneously and wait and see which one is processed faster (and then withdraw the other).

 

 

 

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

 

 

AGENCIES CANNOT ACT AS EMPLOYERS UNDER NEW CAREGIVER PILOT PROGRAMS

 

 

 

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

 

  1. I recently started a new business. It is an agency with offices in Toronto and Montreal. I have lots of connections in Hong Kong and Saudi Arabia to bring in lots of caregivers and Home Support Workers under the new pilot program. The workers would be placed in private homes, nursing homes and governments institutions in Canada (wherever old people live who need Home Care).

 

Under the new home support worker pilot the NOC code is 4412 which states that the workers can be self-employed.

 

Can I submit an application under the Home Support Worker program where the workers will be employed in nursing homes?

 

 

  1. Starting a new business can indeed be exciting and challenging. It is important to know the rules and regulations as it pertains to each province and when applying under the Immigration Refugee and Protection Act. The important ones include the following: In Ontario, it is against the law to charge a fee to a worker for a job placement. In Quebec, the Regulation on Personnel Placement Agencies and Recruitment Agencies for Temporary Foreign Workerswhich came into force on January 1, 2020 requires personnel placement agencies and recruitment agency for temporary foreign workers in Quebec to file and obtain a license with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) to practice.

 

With regard to immigration law, you are correct that the applicable NOC for the Home Support Worker Pilot is NOC 4412 which states:

 

 

4412 – Home support workers, housekeepers and related occupations

Home support workers
provide personal care and companionship for seniors, persons with disabilities
and convalescent clients. Care is provided within the client’s residence, in
which the home support worker may also reside. They are employed by home care
and support agencies, private households, or they may be self-employed.
Housekeepers perform housekeeping and other home management duties in private
households and other non-institutional, residential settings.

 

However, under the pilot program the Home Support Worker must be employed by individuals and families – not agencies or Nursing Homes.

 

To clarify further, the intent of the Home Child Care Provider and Home Support Worker Pilots is to meet the needs of private individuals and families requiring full time care in their own home.

 

Group home settings, including retirement homes as well as daycares to do not qualify under the pilots as the place of work must be a private residence.

 

 

 

 

 

  1. I came to Canada as a student. I completed my two year course but did not yet apply for a post graduate work permit. I want to do so but my study permit already expired. Do I need to have a valid study permit to apply for my open work permit? Some of my friends say yes and some say no. I’m confused.

 

  1. It used to be that to get a Post Graduate Work Permit (PGWP), you had to have a valid study permit. That is no longer the case. While student status is no longer required to apply for a PGWP, study permit holders who do not apply for a PGWP or to change their status or leave Canada before their study permit expires would be in Canada without valid status. They would therefore need to apply for restoration prior to submitting a PGWP application from inside Canada.

 

In this situation, submit an application to restore status at the same time as an application for a PGWP.

 

 

 

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

CRIMINAL MATTERS AND CIVIL MATTERS HAVE TWO DIFFERENT BURDENS OF PROOF

 

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

  1. I came to Canada as a visitor. Soon after arrival, I looked for ways to remain permanently and become a permanent resident. I found a company who would hire me. This company told me that they had a consultant that would help with a job offer and apply via the Ontario PNP Program – Offer of Employment stream. I paid $10,000 to get the job offer approved. After three months Ontario PNP office approved the job offer and my permanent resident application was sent to CPC, Sydney for processing. It is still at CPC, Sydney. Then last week, out of the blue the company said they were downsizing and could not hire me. Do I need to tell the Ontario PNP office about this? Do I need to inform CPC, Sydney about this? What will happen to my application? I have a feeling I was taken advantage of and something fraudulent was being done.

 

  1. I get the same feeling. You should visit the company regularly and contact them to see if indeed they are downsizing. Also, research online to see if they have a history of doing this to others. It is illegal to pay for a job offer so the $10,000 is illegal and exorbitant. It also seems odd that and “convenient” that the job offer was revoked after the PNP approval but before you became a PR. Unfortunately, you have a duty to inform both the Ontario PNP and CPC, Sydney of the revoked job offer which will likely result in a refusal. Even if you cannot prove something fraudulent has happened, you should file a claim in civil court and sue the companies you paid. It is important to understand that to prove fraud you are within the criminal domain where the burden of proof is beyond a reasonable doubt. On the other hand, the civil matter has a less onerous burden of proof which is the preponderance of the evidence.

In particular, a person who is charged with a crime may have their criminal charge withdrawn because the prosecution does not have sufficient evidence to convict ( knowing that he/she must prove the crime beyond a reasonable doubt). That does mean that the person did not commit the so called crime. It only means that courts cannot prove it. On the other hand, a civil trial will involve a lesser burden of proof where plaintiff must prove based on balance of possibilities that the damages occurred.

 

  1. I’m a permanent resident of Canada. I have been living in Canada for over 5 years. My mother applied to come to visit me but was denied. In fact, she was banned for 5 years due to misrepresentation. My mother’s English language skills are weak and she hired an agent to help her complete the application. It seems that the agent did not truthfully answer some questions that has now resulted not only in a refusal but a long ban. What can we do?

 

  1. This is a difficult situation because Canada Immigration will usually have little or no sympathy for applicants who hire incompetent representatives. In other words, Canada Immigration will not accept that your agent made a mistake as an excuse. The applicant (your mother) is responsible for the contents of her own application and is responsible for what she signed ( even though I understand that many times the agents prepare it all and just make one sign). In this particular case, the error was material and has resulted in a 5 year ban. I think the first plan of attack is to obtain a copy of the file and notes to get a better idea of the errors. Second, you should take steps to sue the representative in civil court for damages. It is important to keep in mind that criminal matters or immigration matters is one thing but there is always recourse in civil court for damages.

 

 

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

 

 

 

BIOMETRICS ARE NOW REQUIRED FOR APPLICANTS INSIDE CANADA

 

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

 

As of December 3, 2019, it seems that almost everyone requires to give Biometrics when submitting an application – regardless of what it is. At a fee of $85, the Canadian government is now requiring applicants to go to a designated Biometrics Collection centre to take photographs and fingerprints before any type of visa is issued. For many years, Biometrics were only required for applicants outside of Canada who wanted to come to Canada to live, visit, study or work. As well, the places where a person could actually do the Biometrics were only outside of Canada in certain offices.

 

Effective immediately, that has all changed. All applicants (unless exempt) must now set an appointment and pay the Biometrics fee and go to a designated office in Canada or outside of Canada to take photos and fingerprints.

 

In the past, visitors or workers who were in Canada were spared from additional requirements but from now on all visitor record extensions or study permit extensions or work permit extension applications from applicants inside of Canada must do Biometrics. As well, applicants applying for permanent residence ( for example inland spouse sponsorships) under the SCLP class must also do Biometrics.

 

It is worth noting that if you gave biometrics in the last 10 years for a visitor visa, work permit, or study permit and they’re still valid, you don’t have to give them again if you’re applying to visit, work, or study. Applicants who are not sure if their Biometrics are still valid can check by using the following link:

 

https://onlineservices-servicesenligne.cic.gc.ca/extapp/termsAndConditions?&lang=en

 

Finally, the following persons are exempt from Biometrics:

 

  • Canadian citizens or permanent residents
  • visa-exempt nationals coming to Canada to visit only
  • children under the age of 14
  • applicants over the age of 79
  • heads of state and heads of government
  • applicants who hold a diplomatic visa
  • U.S. visa holders transiting through 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 email canada@moyal.com  or call 416 733 3193

DO NOT ASSUME THAT CANADA IMMIGRATION IS ALWAYS CORRECT

 

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

Q. I entered Canada as visitor to visit my mother who was ill last year. I extended my stay once. I then applied for a work permit as I have an employer who is willing to hire me for a nursing position. I filed the application and completed my medical. Without notice or warning, I then received a procedural fairness letter from the Canadian Embassy in Manila stating that I have 30 days to reply to their letter as they believe I did not provide truthful answers on my application. The letter continues that my application will be refused as they suspect misrepresentation.

I have never lied on any application and I have no clue as to what they are referring to. How can I reply to a letter or explain my untruthful answers if I have no idea what question I did not answer truthfully?

 

A. It does sound like a mystery and is does sound like Canada Immigration is holding all the cards. It can indeed be frustrating when Canada Immigration accuses you of something when you have no idea what it is about. The good news is that Canada Immigration also must act in a procedurally fair manner and they cannot breach that. It is unreasonable for a person to reply to a procedural fairness letter within 30 days for something they know nothing about. Do not assume that Canada Immigration is always correct in what they do (although it can be a challenge to prove they were wrong) as some decisions are overturned in Federal Court and officers can make mistakes.

I have no knowledge of whether the letter sent to you was a mistake but before writing to back to the officer, I suggest speaking to your family and perhaps they was a past application that you forgot about and not disclosed on your current application. Also, look back at old applications and try to think of any reason why the Canadian Embassy is alleging misrepresentation.

If you still cannot decipher the mystery, write to the visa officer and request specifics of what they are accusing of. There are some cases in the Federal Court that are on your side.

 

In Mohammed v. Immigration, Refugees and Citizenship the court held that “the Court is satisfied that the Officer breached procedural fairness. Visa officers have a duty to ensure that applicants have the opportunity to meaningfully participate in the application . In another case (Muliadi v Canada) the Federal Court of Appeal has also recognized the general assertion that an immigration officer’s duty to act fairly extends to letting “the immigrant know what his immediate impression is so that the immigrant can disabuse him and that there is a duty for immigration officials to inform applicants of their concerns.

 

 

 

Q. I came to Canada for the first time as a visitor last Dec 22, 2018 from the Philippines. They did not stamp my passport at the airport so I did not have official proof of my date of entry. I did not know when my status expired until I was talking to my friend in September 2019 who told me that I was only allowed to stay legally for 6 months ( which would have been June 22, 2019). After hearing that, I mailed in an application for restoration of status on September 17, 2019. It was received by immigration on September 25, 2019. I just received a refusal letter because I did not send in the application within 90 days of expiry and therefore not eligible for restoration.

 

A. Canada Immigration is wrong. From the dates in your letter, your status expired June 22, 2019. You then must file a restoration application within 90 days of expiry which means you had to file by September 20, 2019.

You have mentioned that you mailed the application on September 17, 2019 which is before September 20, 2019. If mailed, it is irrelevant when they received it. It is the postmark date from Canada Post that counts.

I suggest you take a copy of the refusal letter to a professional immigration lawyer for the appropriate action to contact Canada Immigration. It may have been an oversight but if the above dates are indeed accurate, Canada Immigration made a mistake.

Once they are aware of the error, it will likely be rectified.

 

 

 

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

WHAT RENDERS A PERSON INADMISSIBLE TO CANADA?

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

Being inadmissible to Canada means you are not able to enter the country until a certain period of time passes or fulfilled certain conditions of entry. An applicant who is found to be inadmissible will be denied an ETA and/or denied entry to Canada and/or if in Canada will be removed. There are several ways by which a person can be found to be inadmissible under current immigration laws. For example:

  • Security reasons, including espionage, violence or terrorism or membership in an organization involved human or international rights violations

 

  • Committing a crime – this is often to referred to as criminally inadmissible and covers convictions that occur in Canada or outside of Canada. In some situations, even if a person was not convicted of a crime outside of Canada but the act is something that would be a crime in Canada – could render a person inadmissible.

If such situations, it would be important to perform an analysis between the foreign law and the Canadian law to find the equivalent Criminal Code provision. Once done a person would have to wait a certain time (called rehabilitation) in order to apply to enter Canada. If a person was convicted of a crime in Canada in most cases they would require a record suspension (pardon).

  • Organized crime, including membership in an organization that takes part in organized criminal activity, people smuggling or money laundering

 

To be admissible an applicant must not have a condition that is a danger or risk to others and must not have a condition that is an excessive demand on health or social services. A visa officer will refuse an application if they reasonably believe that a person’s health condition might cause an excessive demand on health or social services in accordance with section 38(1)(c) of the Immigration and Refugee Protection Act.

An excessive demand on health or social services can mean two things. It can mean that the need for health services to treat your health condition would negatively affect medical service wait times in Canada. It can also mean that the services to treat and manage your health condition would likely cost more than 3 times the Canadian average for health and social services(per person.

The cost threshold is the average dollar amount that federal, provincial and territorial governments spend in a year on health and social services for Canadians and permanent residents.

 

In 2017, the excessive demand cost threshold was $33,275 over 5 years (or $6,655 per year).

In April of 2018, the cost threshold was $99,060 over 5 years (or $19,812 per year)

In 2019, the new cost threshold is $102,585 over 5 years (or $20,517 per year)

 

  • Misrepresentation, which includes providing false information or withholding information directly related to decisions made under the Immigration and Refugee Protection Act (IRPA). A common example would be a person who does not tell the truth on an immigration application (even if minor). A finding of misrepresentation will usually come with a 5 year ban on entering Canada.

 

If you have concerns regarding any ground of inadmissibility, it is recommended to do the research and obtain the proper legal assistance from a qualified immigration lawyer before an application is submitted.

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

 

 

 

UNDECLARED FAMILY MEMBERS PROGRAM IS UNDERWAY AND PROMISING

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

 

  1. I arrived in Canada as a permanent resident of Canada. I was married to a Canadian Citizen who was living at the time in the Philippines.

Before I met by current husband I had a child with my old boyfriend. I never married that boyfriend and I was ashamed that I had a child out of wedlock. The child was being raised by the child’s paternal grandmother and I did not tell my husband about my child until recently. For obvious reasons, I did not declare that child on the sponsorship application. I was afraid that my husband would be upset and I figured that the child is living with the grandmother so why declare the child when it would not benefit me. I just received news that the grandmother is very ill. I now want to sponsor my child. Can I? Does the new program help me?

 

A.The law requires you to declare all family members whether accompanying or not. All applicants are expected to tell the truth regardless of whether it is beneficial or not. As you may have heard, the new “undeclared children” program that just started is now underway and in full force. It is exactly for the type of application you describe so it seems that you will be able to bring your child to Canada as long as the child is under 22 years of age and single.

 

 

  1. I’m applying under the new Home Child Care Provider Pilot program. I have sufficient work in Canada but the guide is very confusing especially regarding funds required.

Do I need to provide any specific financial or income requirements before I can be approved for permanent residence?

Second, I do not have a bachelor degree and my educational assessment (ECA) is in process. What is the law on that educational level requirement?

 

  1.  There is no specific proof of settlement funds eligibility requirement under the new Home Support Worker or Home Child Care Provider pilots.

However, all applicants for permanent residence are subject to a financial admissibility requirement, including caregivers. Under the Home Child Care Provider and Home Support Worker pilots the financial admissibility assessment is completed as part of the pre-assessment to permanent residence, before caregivers come to Canada. That being said, caregivers must continue to meet all admissibility requirements, including the financial admissibility requirement, at the time permanent residence is issued.

For your question on education, in order to qualify, the ECA report must show that your foreign education credential is equivalent to a Canadian educational credential of at least one year of post-secondary studies. Only completed foreign education credentials can count towards meeting this requirement.

 

  1. I have worked in Canada for over one year after studying at a college in Toronto. I have been approved under express entry and I have been given 60 days to submit my application. Can I obtain an extension of time? I do not think I will be able to obtain the required documents on time? If no, what should I do?

 

  1. There is no mechanism to ask for an extension of time. You can either upload an explanation letter or decline the invitation to apply (ITA). You have not mentioned your score. If your score is really high and will be selected in next draw anyway, you should consider to decline ITA and re-enter pool once you do have the documents.

 

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

CONSEQUENCES OF NOT DECLARING COMMON LAW RELATIONSHIP

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

There is one area of immigration law that Canadian visa officers rarely have mercy – not declaring past common law relationships.

A review of the jurisprudence on this subject reveals that in most cases appeals are not successful and the applicant is refused entry to Canada.

In many cases, the applicants’ reasoning is that “common law” relationships are not recognized in their country or that they were not aware that living together was an important matter to declare. Both of these arguments have been unsuccessful in persuading an judge or visa officer primarily due to the fact that the applicants are applying for Canada – hence Canada law prevails and it is how Canada defines common law relationships. In other words, an applicant is applying to Canada so they must be aware of the laws to immigrate to this country. The law of the country of origin is not relevant.

Under Canadian Immigration law the definition of common law partner under section 1(1) IRPA ‘ is an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.

Therefore, if an applicant has been living with another in a “marriage like” relationship for at least one year that will trigger common law partner status. It should be noted that a person who is still legally married to another person can still be in a common law relationship.

The most typical scenario in which this causes havoc is when an applicant (who is usually single) enters Canada as a worker or a dependant of a mother’s application. Then, the person returns to the Philippines and marries the applicant and the sponsorship application reveals that the couple were living together before the sponsor became a permanent resident. If so, the applicant will be refused under R117(9)(d) as that would constitute an excluded relationship since the common law relationship was not declared to Canada Immigration at the time the sponsor immigrated to Canada.

It is therefore crucial to understand what constitutes a common law union and what is not. While each case is different, the case law is clear that the following characteristics are integral and part of any common law relationship:

  1. Living together as the same address for at least one year
  2. Mutual commitment to a shared life
  3. Exclusivity
  4. Interdependent – physically, emotionally
  5. Joining financial affairs

The list is not exhaustive and each situation must be reviewed separately. It is possible for example, to be living at the same address but not be in a common law relationship. The bottom line is that Canada Immigration is very quick to refuse applications when there is any evidence of past common law relationships that were not declared. The consequences can be extreme including an allegation of misrepresentation that comes with a five year ban.

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

 

 

 

CANADIAN IMMIGRATION ANNOUNCES AMNESTY FOR ILLEGAL WORKERS IN THE CONSTRUCTION INDUSTRY

 

 

Immigration Newsweek

 

By Atty. Henry Moyal

 

 

In a surprising move, Canada Immigration has announced a new program that will actually reward people who are illegal in Canada and who are working illegally (in the construction industry). The program is set to open in January 2020 and will have a cap of only 500 applications. In an unprecedented move, the Federal Immigration Minister announced this week that permanent residence will be granted to applicants who entered Canada legally but then lost status and have remained in Canada with no status for at least five years. To qualify, applicants must have filed their taxes, lived in Canada for 5 years and have at least 3 years of work experience in the construction industry in the Toronto area.

Applicants with children or spouses in Canada ( regardless of the child or spouse’s immigration status) will be given first priority.

As far as this writer is concerned, this is the first time Canada Immigration is actually rewarding those who worked illegally and without a work permit.

No other past Federal Immigration Minister has been successful in pulling off this type of controversial law as many complained in the past that it was not fair to only grant permanent residence to illegal workers in the construction industry ( what about other occupations?). Similarly, many will not be happy that it is only for those who have worked in the GTA Toronto Economic Regions of City of Toronto, Durham Region, Halton Region, Peel Region, York Region ( what about other parts of Ontario? Or other parts of Canada?).

Nevertheless, the current program is open to applications starting January 2, 2020 as the construction industry in the GTA is facing significant labour shortages. According to Canada Immigration, a stable construction workforce will help ensure that housing and infrastructure projects are delivered. Reports indicate that this workforce has been supported for many years, in part, by long-term residents who have fallen out of immigration status and are operating in the underground economy.

The new program therefore seeks to regularize these individuals who have been contributing to the Canadian economy by filling a regional labour market need.

 

In another announcement this week, Canada Immigration has announced the Agri-Food Immigration Pilot that will grant permanent residence for workers in the meat processing and mushroom production fields.

In the past, such workers were considered low skill and had no direct pathway for permanent residence. However, now 2750 foreign workers a year will be granted permanent residence.

The occupations and industries eligible under the new Agri-Food Immigration Pilot include:

  • meat processing
    • retail butcher
    • industrial butcher
    • food processing labourer
  • harvesting labourer for year-round mushroom production and greenhouse crop production
  • general farm worker for year-round mushroom production, greenhouse crop production, or livestock raising
  • farm supervisor and specialized livestock worker for meat processing, year-round mushroom production, greenhouse crop production or livestock raising.

The eligibility requirements for the Agri-Food Immigration Pilot are:

  • 12-months of full-time, legal and authorized non-seasonal Canadian work experience in an eligible occupation in processing meat products, raising livestock, or growing mushrooms or greenhouse crops;
  • high school education or greater;
  • job offer for full-time, non-seasonal work in 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 email canada@moyal.com  or call 416 733 3193