GOVERNMENT QUIETLY SETS AUG. 1 TO RESTRICT CHILD IMMIGRATION

Starting Aug. 1, 2014, parents may only sponsor children to Canada who are under 19 years of age. This also applies to any applicant for permanent residence, who wants to include their children in their application. Children over 18 years of age may only be sponsored or included in an application if they are dependent on the parent and unable to support themselves due to a physical or mental condition. The rule changes were published without any news release in the Canada Gazette on Wednesday.

The government had initially proposed these changes in May, 2013, to be effective Jan. 1, 2014. As I previously wrote, in late last December the Immigration Minister said the government had postponed a decision on the changes after many public groups had expressed opposition to the changes. Despite the opposition, the government has moved ahead with the changes. Like other changes to the rules, the government justifies it on economic grounds. It says that older children are less able to adjust to moving to Canada and do not have Canadian work experience  and education that is better recognized by Canadian taxpayers.

Applications to sponsor dependent children include sponsorship forms completed by a parent or parents, and the applicants complete application forms. Under the current rules, children under age 22 can be sponsored or included in an application. It also includes children over age 21 who are dependent and continuously enrolled in and attending a post-secondary institution approved by a government, and are actively pursuing a course of academic, professional or vocational training on a full-time basis.

Applications properly filed before Aug. 1, 2014, will be considered under the current rules. The applications have to be complete and in order. If anyone has concerns about the application process, they might consider retaining the services of an experience immigration lawyer or qualified immigration consultant.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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Government continues juggling with temporary workers

The political conflict over the temporary foreign worker program came to a head this past week with the announcement by Employment Minister Jason Kenney last Thursday that the government was suspending the issuance of labour market opinions related to the food services sector. Under the moratorium Employment and Social Development Canada (ESDC) will not process any new or pending labour market opinion applications for that sector. Labour market opinions, known as LMOs, are decisions by ESDC that an employer has given a genuine job offer and that hiring a foreign worker would have a neutral or positive effect on the labour market opinion in Canada.

Critics have complained about the temporary foreign worker program for years. The program is purportedly intended as a last resort for employers to find workers when they have been unable to find qualified workers in Canada. In the past decade, and particularly under the present government, the foreign worker program has greatly expanded. There are currently about 338,000 temporary foreign workers in Canada, compared with about 110,000 ten years ago.

In justifying the moratorium, Minister Kenny said it was made in response to serious allegations of abuse by employers that ESDC had been made aware of recently. It also followed the release of a report by the C.D. Howe Institute that the increase in temporary foreign workers had led to higher joblessness in B.C. and Alberta, particularly among young workers. The Minister’s response reminds me of the character Captain Renault in the movie classic, Casablanca. When asked why he was shutting down Rick’s cafe, he disingenuously exclaimed, “I'm shocked, shocked to find that gambling is going on in here!,” as a worker from the cafe’s casino hands him money.

For years Minister Kenny has been leading the efforts of the government in cultivating its name among various community groups. The temporary foreign worker program has had a significant impact on both the Filipino and South Asian communities, as they are the major source countries for temporary foreign workers. The program has been a boon for many small business owners, as well as large corporations. The critics have warned of abuses with the program for several years.

Instead of increasing wages to attract local workers for lower skilled jobs, businesses have been able to hire foreign workers, keeping wage rates lower.  In the case of higher-skilled jobs, easier access to foreign workers has taken the incentive away from retraining Canadian workers to fill job positions; even though part of the LMO process involves an assessment of whether the employer has made or will make reasonable efforts to hire or train Canadians and permanent residents.

Over a year ago two local unions challenged a decision to grant LMOs to HD Mining to hire several hundred foreign miners to work at its northeast BC coal mine. The company won the case. Part of its proposal was that it would eventually train Canadian miners to do long-wall mining, a technique used only in a few mines in Canada. A year has passed and it is reported that the company has yet to start training the different technique to Canadian miners.

There are many political issues at play with the temporary foreign worker program. How much money should the government spend on retraining Canadians and permanent residents? How much should businesses be responsible for retraining and reeducation? Will Canada lose an economic competitive edge with other countries that use temporary workers? Do benefits such as employment insurance and social assistance create a disincentive for Canadians to relocate to find work? How much should the government spend to police the program, to curtail abuses? Will recent restrictions on parental sponsorship reduce the pool of potential workers for lower-skilled jobs, such as food services?

The program effects the workers coming to Canada. Should they receive a right to acquire permanent residence regardless of the skills they provide to Canada? Some economic libertarians and social activists suggest an “open border” policy, allowing the marketplace to determine who gets to stay in Canada. Would that mean no restrictions on access to social benefits?

Despite the moratorium, the temporary foreign worker program is still open to employers in other work sectors. The government is toughening enforcement, as with most other areas of immigration and citizenship. Employers will continue to seek foreign workers as long as the wage savings outweigh the added administrative costs of hiring those workers. The proposed Express Entry program starting in 2015 will make it easier for employers to acquire higher-skilled workers, but won’t help with the lower-skilled worker market. Politicians will continue to change the program, hoping to bolster their standing amongst potential voters in various communities for the next election in 2015, making it harder for some businesses to plan.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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Cancellation of investor program raises many questions

There are currently dozens of different categories for potential immigrants to apply under, whether through federal or provincial nominee programs. Categories change as governments adjust policies to respond to changing economic and social circumstances. When the federal budget was unveiled last month, the government announced it was canceling the federal immigration investor program. The program had been in existence for nearly 30 years. The program was modified several times. In its final incarnation, the program offered permanent residence to potential immigrants having a net worth of $1.6-million, who invested $800,000 in a government fund for five years.

Earlier versions of the program allowed potential immigrants to invest in private businesses and funds. That proved open to abuse, with some businesses failing to carry out their intended investments and some investors losing their funds. The administrative cost of regulating such schemes, effectively requiring the immigration department to become a securities regulator, resulted in the adoption of the government fund model.

The government claimed, in canceling the program, that most immigrant investors are not making a long-term positive economic contribution to the country. It said employment and investment income is below Canadian averages and those of most other economic immigrants. Investors pay less in taxes over a 20-year career. They have the lowest official language ability of any immigrant category and are less likely than other immigrants to stay in the country over the medium to long term. Finally, very little “new” money came into the country, with almost all initial investments made through the program coming from Canadian bank loans.

On the other hand, other reports indicate that in settling in the country, investors added capital through the purchase of residences and transfer of personal property, as well as contributing through the purchase of goods and services. For several decades debate over immigration and investors has focused on its purported effect on real estate prices. Critics claim that housing prices in Vancouver, one of the more expensive places to live in the world, is the result of a large influx of investor immigrants buying up property to live in or for investment. Others suggest there is no direct correlation and the total number of sales does not reflect the number of immigrants coming as investors.

Much of the debate is premised on anecdotal evidence, as property sales do not track the origin of purchasers, or their immigration status. In 2012, the former governor of the Bank of Canada, Mark Carney, warned of the risk of foreign capital inflating the housing market. The 2011 census shows a shift in demographics in Metro Vancouver, with an increase of the immigrant population from 30 per cent in 1991 to 40 per cent in 2011, with 61 per cent of the immigrant population arriving since 1991. About 50 per cent of the immigrants coming in the past 10 years chose to settle in Vancouver and Surrey.

The effect of immigration on housing prices is not limited to Canada. The Sydney Morning Herald in Australia noted a few weeks ago, after the immigrant investor program was cancelled, that one major property developer reported that offshore investment in residential properties had doubled in 2013. The article speculated that Canada’s decision to limit investment immigration could only boost interest in Australia’s market.

The decision to cancel the program has prompted a reaction from some of the would-be immigrants who applied under the program. Earlier this week a group held a news conference in Beijing, asking that the government to process the 65,000 outstanding applications. They are also contemplating legal action against the decision.

That action will likely have an uphill battle to succeed. When the government introduces budget legislation to give effect to the cancellation, I expect it will include express terms to retroactively cancel the program and outstanding applications, as it did recently with another program for skilled workers. While the decision may be unfair and cast doubt on the government’s trustworthiness, it would be within Parliament’s power to enact such legislation.

The government’s decision raises fundamental questions about immigration law and policy, just as does the recently proposed changes to the citizenship law. How should would-be immigrants be chosen? What are the criteria in measuring an immigrant’s contribution to the country? To what degree should an immigrant be contributing economically to society, if they are to receive the social, health and economic benefits from the state?

The government says it will create a new immigrant investment program. It will be interesting to see what criteria it uses to select immigrants under the new program, and what economic and social benefits the new program will create for the country.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Immigration relief for Filipinos affected by typhoon

As a result of the national calamity in the Philippines created by super typhoon Yolanda, Immigration Minister Chris Alexander announced Thursday that Canada will be prioritizing the processing of applications on request from Filipinos who are significantly and personally affected by the typhoon.

Applications from Filipino citizens to extend their temporary stay in Canada will be considered in a compassionate and flexible matter. Citizenship and Immigration Canada will receive requests for priority processing by email at situation-philippines@cic.gc.ca or through a dedicated crisis line at its Call Centre at 1-888-242-2100.

Overseas applicants, who have applied for temporary or permanent visas, may contact the visa office in Manila, to declare their case as a priority, by email at manila-im-enquiry@international.gc.ca. The visa office will consider applicants who can demonstrate they are significantly and personally affected by the typhoon, with priority given to those in affected areas.

The government responded in a similar manner following the Indian Ocean tsunami in 2004 and the catastrophic earthquake in Haiti in 2010. Instructions were given in 2010 for priority processing of applications in Canada and abroad, waiving certain fees and requirements to have travel documents. The extent of the government’s relaxation of requirements will not be known until the government issues a detailed operational bulletin, so it is advised to keep informed by regularly checking the immigration website at www.cic.gc.ca.

The Filipino community is making an increasing contribution to the social and economic development of Canada. Since 2006, the Philippines has been the second largest source of immigrants, with 32,747 Filipinos arriving in 2012. As of the 2011 census, 662,605 persons identified themselves as Filipino, including 133,995 in British Columbia; making it the third-largest non-European community in the country. In addition, 47,470 Filipinos were in Canada on Dec. 1, 2012, as temporary workers.

Canadians are responding to the plight befalling those in the Philippines. The Government of Canada has pledged up to $5-million for assistance, as well as sending a disaster relief team. Fundraisers have been organized across the country as Canadians of all stripes worth together to help those in need..

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.

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Immigration creates winners and losers with CEC changes

The announcement late last week that the Immigration Department is capping applications to the Canadian Experience Class at 12,000 applications and cutting out certain occupations for eligibility is another example of the government’s flexibility in addressing labour market needs through ministerial instructions. It is also penalizing certain workers brought to Canada under the government’s temporary foreign worker program.

The Canadian Experience Class was created in 2008 to allow certain temporary foreign workers and foreign student graduates with managerial, professional, or technical or trade work experience to apply to become permanent residents. It fit a stated emphasis on the economy, as a means, in the government’s words, of retaining talented and motivated individuals who have demonstrated a strong work ethic, have an ability to contribute to the economy, and will easily integrate into Canadian life.

The basic requirements for the program require an applicant to have at least 12 months of full-time (or an equal amount in part-time) skilled work experience in Canada in the three years before they apply. They must also have gained their experience in Canada with the proper authorization, meet required language levels needed for your job for each language ability (speaking, reading, writing, and listening), and have the experience in managerial jobs, professional jobs, and technical jobs and skilled trades. The government has approved about 25,000 applicants through the program since it was introduced and expects to approve about 10,000 applications this year.

At the same time the current government has opened up the doors to a large number of temporary foreign workers. The numbers increased from 140,650 at the end of 2005, to 338,213 at Dec. 1, 2012. This has occurred despite an increase in the unemployment rate during the same period. Since 2007 the Philippines has been the largest source country for workers in Canada as of Dec. 1 each year, with 47,470 present as of Dec. 1, 2012. It is followed by the United States, Mexico, India, France and Australia. 

More recently the government fast-tracked work permit approvals in Alberta and British Columbia. The Alberta Federation of Labour (AFL) claims that more than 2,400 permits, many in Alberta, were approved for workers in fast-food restaurants, convenience stores and gas stations. The Federation also claims that in 2012 there were more than 200 complaints about labour standard violations in Alberta, with nearly half found to be legitimate.

The BC Chamber of Commerce has noted that with dramatic increases in foreign workers in Northeastern BC and across the country, there has been an increase in the number of complaints from foreign workers regarding abuse and mistreatment. In September the BC Human Rights Tribunal ordered Tim Hortons to disclose the information related to four temporary foreign workers from Mexico who claim they were discriminated against by their employer in Dawson Creek.

The influx of foreign workers led to a public backlash earlier this year after several cases became public. The Royal Bank of Canada brought in temporary workers to train for dozens of soon-to-be-outsourced Canada-based jobs and a Chinese-owned mining company, HD Mining, was approved to import Chinese coal mining workers into British Columbia. The government has responded with some changes to the temporary worker program, including the introduction of a fee for employers seeking approval to hire foreign workers.

The specific occupations which have been made ineligible under the Canadian Experience Class includes cooks, food service supervisors and retail sales supervisors; the same occupations which the government appears to have helped expedite in handing out temporary work permits according to AFL President Gil McGowan. In a Postmedia story, Mr. McGowan states “They were screwed by being brought into the country to act as pawns to drive down wages and conditions. Now they’re having the door closed in their faces when it comes to access permanent residency.”

The caps and restrictions imposed by the government are under legislative powers enacted by Parliament in 2008. They give the Immigration Minister tremendous administrative flexibility to determine processing levels and cut down on applications being processed through the issuance of Ministerial Instructions. In some cases, they appear to retroactively change the rules by which a person may apply for permanent residence. In this case, under the latest Ministerial Instruction, some temporary workers who came to Canada with the expectation they may be able to apply to remain permanently may be out of luck.The changes are effective Nov. 9, 2013.

However, all is not lost for some of the temporary workers. In British Columbia some may still be eligible to apply for permanent residence under the province’s Provincial Nominee Program, either as skilled workers, entry-level or semi-skilled workers, or under the Northeast Pilot Project. There are similar categories under Alberta’s immigration program. With Ministerial Instructions, the immigration rules change regularly so current advice is always required.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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Omnibus bill sets out changes to implement Expression of Interest program

Bill C-4, tabled by Finance Minister Jim Flaherty just over two weeks ago, includes changes to the Immigration and Refugee Protection Act to implement the government’s proposed Expression of Interest immigration management system. It is the second omnibus bill with measures related to the government’s Economic Action Plan 2013 budget introduced on March 21.

In his budget speech, Minister Flaherty gave notice the government intended to amend the immigration system to attract skilled workers, to retain foreign students after they graduate, to speed up the movement of skilled workers, to attract new businesses, and to help new Canadians integrate quickly and find and keep good employment.

In budget documents tabled the same day, the government confirmed its intention to create a “Expression of Interest” immigration management system that would allow Canadian employers, provinces and territories to select skilled immigrants from a pool of applicants that best meet Canada’s economic needs. The budget paper also contained promises to improve the foreign credential recognition processes, reform the temporary worker program, test new approaches to attract immigrant investors, increase funding to process temporary workers, improve the processing of citizenship applications, and attract more students and foreign researchers.

Bill C-4 makes changes to the immigration act to provide a framework for inviting applications for permanent residence from selected applicants who have submitted an expression of interest in migrating to Canada.

Expression of interest submissions will apply only in respect of economic class immigrants. The expression of interest must be submitted electronically, unless allowed by other means. Applications from persons inadmissible for misrepresentation will not be accepted. Nor can an applicant submit a new expression of interest before a prior submission has expired. To prevent applicants from seeking exemptions from any criteria or obligation under this program on humanitarian and compassionate grounds, the Minister may not examine such requests.

To provide greater flexibility, the rules for carrying out the administration of the program will be established by ministerial instructions, rather than by changes to the Immigration and Refugee Protection Regulations. A detailed list of the type of instructions the minister may enact is set out in the proposed subsection 10.3(1) of the amended act. It includes instructions setting out the economic classes to which the invitation process will apply, eligibility time periods, ranking of applicants, the number of invitations that may be issued within a specified period and the time period for submitting a permanent residence application after an invitation is issued.

All instructions must be published on the Department of Citizenship and Immigration website, with only some of them having to be published in the Canada Gazette. The changes will also authorize the government to release an applicant’s personal information to specified entities to facilitate the applicant’s selection as a temporary resident or economic class member. Which information and the list of entities will be established by ministerial instruction.

In a news release issued last week the immigration department stated it expects the new system to start on Jan. 1, 2015. The proposed legislation includes an enacting clause to allow the government to bring the proposed changes into effect on the dates it chooses.

This active recruitment system will allow Canada to select potential immigrations from a pool of interested persons. There will be no legal obligation to offer anyone an invitation to apply for immigration, thus avoiding the drawback of the current passive economic immigration system which requires the government to consider all applications submitted to it.

The Immigration Department explains that the expression of interest system will work in two steps.  First, prospective immigrants will indicate their interest in coming to Canada by providing information electronically about their skills, work experience and other qualifications. The department will place applicants who meet certain eligibility criteria in a ranked pool. Employers that cannot find domestic workers who meet their skill requirements will be allowed access to personal information about prospective applications in the pool to find suitable candidates. The department will offer invitations to the best candidates, including those with in-demand skills or with job offers from prospective employers, to apply for a visa.

Application backlogs are not expected to accumulate and processing times will be kept at a minimum as prospective applications are removed from the pool if they are not chosen after a period of time. Applicants will be assessed on a variety of other factors such as education, work experience and language ability, as the needs of the Canadian labour market change.

When implemented, the new system will allow potential immigrants greater certainty within relatively short time frames to know whether or not they may be accepted as immigrants. Registered employers, who meet specified requirements, may find it as an effective means to recruit qualified people for their long-term needs. The services a prospective applicant may need will not be known until details concerning the requirements the applicant has to provide at the first step in the process are known. Prospective employers will still have to satisfy labour market opinion requirements to access the system. In any event, it will be a significant change for both applicants, employers and service providers.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.

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