Your gateway to Canada

By Attorney Henry Moyal

EXORBITANT RECRUITMENT FEES SHOULD RAISE A RED FLAG

Q. I am writing on behalf of a friend who is simply too afraid to talk to anyone about her predicament. A few years ago she was working in Dubai and paid $5000 to a recruitment agency there to help her find an employer in Canada to work as a caregiver. The agency in Dubai apparently has a contact office in Canada who found a Canadian employer to sponsor her. My friend arrived in Canada in January 2007 to work under the caregiver program. The problem is that she has never in fact worked as a caregiver. She has never even been in her employer’s house. Her work permit states that she is a caregiver and her pay stubs issued to her by the employer state she has earned an income as a caregiver but she has been working in a factory for nearly two years now. The Canadian agency has set up this arrangement, has held on to her passport and has been issuing tax documents in the name of the employer. Is this legal? Will my friend be deported if she tells immigration the whole truth? Does she still qualify under the live in caregiver program?

A. In life, when something does not sound right, it usually isn’t! I suspect from your letter that you feel something is not kosher here and you are correct that it is illegal. Your friend has to make a decision quickly on what she wants to do. Neither route will be easy. If she informs immigration about the fact that she has been employed illegally, then she may face removal in Canada. Whether she is removed or not, it seems though that your friend does not meet the live in caregiver class as she cannot ever meet the 24 month rule of employment as a caregiver. If she continues with the sham, any application she submits may be regarded as misrepresentation.

However, in my opinion, the more interesting dilemma is how the government should stop these recruitment companies from acting in such a manner. In most of Canada, it is illegal for a recruitment agency to charge a fee to an employee to find an employer. The cost must be charged to the employer. However, we all know that this does not happen and the exorbitant fees that your friend paid are a sign that this agency is acting in an illegal way. Many agencies will mask these fees and say that the fees were for consulting or translation rather than matchmaking but we all know that is also a sham. Further, why is the agency seizing your friend’s passport? No agency has the right to take a person’s original passport. As well, it seems that the Canadian employer is going along with this fiasco in order to get some sort of compensation.

Finally, let’s not forget the old saying, where there is smoke there is fire. If the agency is charging such exorbitant fees, in all likelihood there is some underlying immigration issue that increases the vulnerability of the worker. In this case, I believe that is the case since the agency has taken your friend’s passport. In many cases, the agency will deliberately provide false information on an application to use as leverage against the employer or else they will report them to immigration. Your friend should not be afraid to talk to an immigration lawyer to discuss her options.

Q. I entered Canada as a permanent resident in the year 2000. Shortly after arrival I divorced my husband in Canada. Last year I met a person through the internet and we married last month in the Philippines. I have now been informed that he was married before but never obtained an annulment. How do I go about sponsoring him to Canada?

A. From the brief details you provided, I do not believe that you can sponsor him at this time. He does not seem to fall under the family class category. Firstly, I am confused as to how you were able to marry him in the Philippines if you were a permanent resident at the time of your divorce. My understanding is since there is no divorce in the Philippines, your foreign divorce is only valid if you were a Canadian citizen at the time of divorce. Secondly, if your “spouse” was married to another woman at the time of your wedding, then that marriage is void. It did not exist in the eyes of the law. Putting aside the fact that your “spouse” may have committed bigamy it does not seem that a spousal sponsorship application will go far. I suggest that you look into the less common application of “conjugal partner”.

Q. I am a visitor in Canada and I am married to a Canadian citizen. We are in the process of completing the inland sponsorship application but I do not want to wait a year to work. I was told that I can apply now for an open work permit and obtain one in a month. Is that true?

A. Yes and no. When you apply for your spousal application you can include an open work permit application but it will not be issued until you are approved in principle. That can take about 7 months. If you are asking whether you can obtain an open work permit now , before sponsorship approval, then the answer is no.

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