By Attorney Henry Moyal
UNFAIR REFUSALS FOR CAREGIVERS
Q. I am an employer living in a small town in Ontario. I petitioned my niece to come to Canada as a live in caregiver. It took about two years to process but she was finally interviewed at the Canadian Embassy. She passed the English test and the medical exam. Suddenly, she received a letter stating she was refused due to the fact that her employer does not earn sufficient income to pay for her wages. My husband and I earn a reasonable income and we can certainly afford the caregiver who will only care for our one child. What do you think went wrong?
A. I am seeing more and more of this lately. Canada Immigration has a policy manual to which they should follow. It is not law but guidance. In OP 14, 5.8 it states that the employer must have sufficient income to be able to pay the wages and benefits of a LIC based on provincial wages. Then it states that if there is anything in the documentation or something said by applicant at interview to lead the officer to believe there would be insufficient income, the officer may request the employer to provide evidence such as Notice of Assessment. It appears that the officers in Manila ALWAYS ask for Notice of Assessment regardless of whether they have any suspicions of insufficient income.
Nevertheless, the manual and the regulations are silent on what is sufficient. It certainly is unfair for an employer to wait for two years and more unfair for the applicant to go through the entire process including medical if all along the employer did not qualify. Unfortunately, there is no “chart” based on family size/income that an employer can check to see if they will meet the criteria. But there should be. In my opinion it is unfair and in my mind it is a loophole to which something must be done. I have undertaken to take up this matter with Immigration Headquarters in Ottawa, Ontario.
Q. I entered Canada as a nurse three months ago. I want to change my work permit to a permanent immigrant visa. Can I? I was told that I need to wait for one year before I can file the case.
A. That is not correct. If qualified, you can file the case now. I think what you have been hearing is that you need to be in Canada for one year minimum in order to file the application outside of the Philippines. That too is not necessarily true. If your work permit is longer than one year, even though you only came a few months ago, you still get the benefit of filing the case outside of the Philippines and in your case probably in USA.
Q. I came to Canada after working in Israel for five years. I have not seen my spouse and children for over 7 years now. I just received my open work permit but I am not a permanent resident yet. I am afraid to go to the Philippines for vacation because I have heard horror stories that some workers left and then were denied visas to come back to Canada at the embassy. What can I do to see my family again soon.
A. The best way to bypass the situation and to ensure that you are not one of those horror stories is to eliminate the processing at the Canadian Embassy in Manila altogether. If you have the visa in hand prior to departure from Canada you are assured re-entry. So apply before you go.
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
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