Canada plans visa-exempt traveler screening

The federal government has published plans to create a screening program for travelers from visa-exempt countries; requiring them to obtain an electronic Travel Authorization (eTA) before coming to Canada. The plans, including proposed rule changes, were unveiled in the Canada Gazette on Saturday and are open to public comment until Aug. 2.

Under current immigration rules, temporary visitors, including study and work permit applicants, must obtain a temporary resident visa (TRV) before travelling to Canada unless they are citizens of exempted countries or other specified categories. The current country list includes the United States, United Kingdom and 43 other countries (primarily European and developed nations).

The TRV requirement compels travelers to complete application forms and submit documents, to allow decisions on their admissibility before coming to Canada. This pre-travel screening helps prevent the arrival of persons with criminal records, security and health issues, and those who there is reason to believe would stay in Canada indefinitely.

Visa-exempt travelers are not screened until they arrive in Canada, resulting in increased enforcement costs at entry points if they are found inadmissible. The government notes that in the 2012-13 fiscal year, 7,055 visa-exempt foreign nationals were found inadmissible, though it does not say how many of those were non-genuine visitors or U.S. citizens, whose removal would result in minimal added enforcement costs.

The ETA program will mirror a program already in effect in the U.S. (ESTA) (and is similar to one in Australia). Travelers could apply on-line or in writing for a $7 fee. If approved, the authorization will be valid for five years or until the applicant’s current passport expires. The eTA program will not apply to U.S. citizens and other specified applicants, including members of the Royal Family and accredited diplomats.

The government expects the program to cost $173.6-million to implement and carry out over ten years. User fee revenues are forecast at $162.3-million, with cost savings of $12.4-million in preventing inadmissible arrivals, for a net benefit of $1.1-million. It anticipates the program will not have any permanent effect on tourism to Canada.

The program is part of the North American perimeter security initiative with the United States and an example of the reaction to post-9/11 security concerns. Whether or not the added scrutiny provides further security against terrorism is debatable. What is certain is that the program adds to the cost of international travel and continues to play on fears, whether real or imagined.

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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Visiting Canada – dealing with the challenges in coming

In recent years millions of persons come to visit Canada. According to estimates of the Canadian Tourism Commission, in 2012 there were over 16 million overnight arrivals to Canada, of which nearly 12 million were from the United States. The second largest source of overnight arrivals was the United Kingdom, with 600,000 arrivals. Next was France with about 421,000. India was listed seventh, with 171,000 overnight arrivals. Included in the mixture are temporary residents who stay to work or attend school. While many are allowed into Canada, some are refused entry when they arrive, while many others are refused temporary resident visas they are required to have before they arrive here.

The immigration regulations set out rules on how people may apply to come to Canada, depending on what their intention is. The first distinction is a list of visa-exempt countries, whose citizens do not have to apply for a temporary resident visa before coming to Canada. The list of visa-exempt countries changes from time to time, depending upon a variety of factors, including whether or not certain foreign nationals are abusing the privilege of entering Canada by overstaying their visits. At present the visa-exempt list includes about 45 countries, primarily in Europe and including the United States, Australia and New Zealand. India was on the list until it was dropped in October, 1981, where it has remained ever since.

The temporary resident visa requirement creates an additional burden for potential visitors. Time and money has to be spent to complete application forms, gather supporting documents and to file the application. Depending on where the person applies, the process can be done within a week or can take several weeks.

Once an applicant has gathered information, completed the necessary forms and submitted them with the required processing fee, the application is reviewed by an officer who decides the application. Depending where a person applies, the process may require a personal interview. In the past decade, as government has worked to reduce its costs, more applications are decided without an interview. That means an applicant has to present all the best possible evidence to support their application in writing.

When deciding an application, a visa officer considers whether or not the applicant meets the requirements to apply and is not inadmissible. Persons may be inadmissible for a variety of reasons, including having a criminal record or serious health issues. The principle test applied to all applicants for a temporary visa is whether or not the applicant intends to remain in Canada temporarily (Immigration and Refugee Protection Act, para.20(1)(b)). If an officer believes a person may want to remain in Canada indefinitely, the application will be refused.

There are a variety of factors an officer may look at. None of the factors are set out in the rules, nor will you find them in any instruction manual for officers or in the guidebooks the provided on the immigration website. Typically, an officer is concerned with any evidence that would show the applicant will return to their home country, rather than stay in Canada. Does the person have a job? What assets, including real property do they have in the home country? Do they have immediately family members in the home country? What family members do they have in Canada? What is the reason for their visit? Do they have the means to support themselves for their expected stay?

If refused, it is usually done with a short cursory letter, with little explanation on it. Many failed applicants complain about not knowing why they were refused. The only way to get a detailed response is to apply to obtain a copy of the visa officer’s file.

Remedies against refused applications are limited. There is no formal right to have the decision reconsidered, though that may occur. The only legal remedy is to apply for judicial review in Federal Court in Canada. That means hiring a lawyer in Canada, a costly or impractical matter for most applicants. The Federal Court’s powers of review are limited, as a judge looking at the case decides only if the decision was unreasonable based on the information provided by the applicant. If the applicant failed to provide sufficient information, an officer may not be faulted on their conclusion.

An applicant can always reapply, with more information to address the issues that concerned the visa officer. The best remedy to be prepared to deal with the matter at the start by becoming informed about what is needed. That may involve seeking professional help with counsel experienced in these issues.

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.

Who protects temporary foreign workers in Canada

Claims of abuse and exploitation of temporary foreign workers has increased in recent years as the number of such workers has risen in Canada to well over 350,000 in 2013. Workers complain that employers fail to comply with hiring contracts by requiring longer work hours and not paying agreed-upon salary, and providing working conditions that Canadian employees would reject. Many foreign workers won’t complain for fear of retribution from their employer. They cannot easily change employers once they are in Canada and if they leave Canada their chances of returning are decreased.

It is in response to this problem that the government made its recent changes to immigration rules affecting employers wanting to hire temporary foreign workers. Immigration Minister Chris Alexander sold the changes as part of the government’s commitment to protect foreign workers from the risk of abuse and exploitation. As I wrote about last week the changes give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.

Part of the other potential abuse of foreign workers comes from employers who charge workers money for giving them a job offer. The payment may involve a single fee paid up front for the job offer, or a set-off against wages once the worker begins employment. There are laws available to protect the foreign worker from such exploitation. In British Columbia, employment law is governed in part by the Employment Standards Act. Section 10 of the law prohibits any person from requesting, charging or receiving, directly or indirectly, from a person seeking employment, a payment for employing or obtaining employment for the person seeking employment, or providing information about employers seeking employees.

Workers who have paid such fees may make a complaint to the Employment Standards Branch, which, if not resolved by the worker and their employer may proceed to investigation, mediation or adjudication by the Branch. The Director of Employment Standards can issue a determination for unresolved complaints. The employer may be assessed mandatory penalties for breaking the Act and the Director has powers to collect outstanding wages and penalties. The illegal job fees are treated as unpaid wages owing to the worker.

Some workers have spoken out about the abuse and have complained to the Branch. Last month some Filipino workers at Tim Hortons’ restaurants in Fernie and Blairmore have alleged that the local owners have exploited them by forcing repayment of overtime wages. A year earlier a group of Mexican workers complained to the BC Human Rights Tribunal with allegations of discrimination and mistreatment by a Tim Hortons restaurant in Dawson Creek.

Another requirement of the Employment Standards Act is the licensing of employment agencies. That includes any person who, for a fee, recruits or offers to recruit employees for employers. There are many job recruiters offering to find work for foreign workers who may be visiting Canada or who are abroad. Not all of the job recruiters are licensed to act in British Columbia. Under the law, the employment agency can only charge the employer for finding an employee, though some recruiters exploit workers by charging them a fee.

These rules led to a complaint to the Employment Standards Branch over the practices of an immigration consultant. ICN Consulting Inc., an immigration consulting firm owned by Tatiana and Michael Gorenshtein, charged two live-in caregiver applicants fees to obtain a labour market opinion for their prospective employer and for their work permit applications. The Employment Standards Director determined that the consultant should have been licensed as an employment agency and had unlawfully charged a fee for helping the workers obtain employment.

Meanwhile, the consultant successful sued one of the workers for unpaid fees in Provincial Court, where a justice of the peace found the consultants contract was not for arranging employment but for providing immigration services. Last September the BC Supreme Court ordered that the issue of whether the consultant’s fee involved a fee for arranging employment be reconsidered by the Employment Standards Tribunal. The case is pending before the Tribunal.

Whether exploitation and abuse of foreign workers will continue to be a significant problem remains to be seen. Workers have remedies under provincial employment and human rights law against abusive employers and recruiters. Investigations under the new federal rules may still depend upon a complaint before action is taken. In either case, the end result is that the foreign worker will lose a job, with no certainty they can get another approved job offer. In those circumstances, when protection from abuse depends on the willingness of workers to make complaints, the potential for abuse still exits.  The recent rule changes do not address that problem.

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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Immigration rule changes to impact foreign worker employers

In late December Immigration Minister Chris Alexander and Employment Minister Jason Kenney announced changes to the Immigration and Refugee Protection Regulations that give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.

Effective Dec. 31, the changes received formal approval from the federal cabinet on Dec. 12 following consultation with interested parties after proposed changes were announced last June. The changes are part of several reforms to the temporary foreign worker program announced after public criticism arising from several stories early last year. One news report revealed The Royal Bank had replaced dozens of Canadian workers with foreign workers, as part of a plan to outsource jobs abroad. In another story, a mining company successfully fought a court challenge by a Canadian union against a government decision allowing it to hire several hundred foreign workers for a proposed mine in British Columbia.

The new rules have received criticism and comment from various groups. Some complain about additional burdens placed on employers, while another complaint concerned the failure of the government to implement one of the proposals it floated last June.

Employers must now retain any document relating to hiring and employing a foreign worker for six years. During that period officials may enter the workplace and interview foreign workers or demand documents, without a warrant, to determine if the employer has complied with the immigration rules and the conditions set out in the labour market opinion (LMO) which gave the employer permission to hire the foreign workers. An employer must show that all information provided for the LMO is accurate and must make reasonable efforts to provide a workplace that is free of abuse.

Inspections may be carried out for six years after a foreign worker is employed. Employers who fail to comply with the rules or the LMO will get a chance to justify and correct its actions. If the employer is found in non-compliance, it will be ineligible to hire foreign workers for two years and will have its name published on a public ban list. Pending applications will receive a negative LMO and outstanding LMOs may be revoked.

The Saskatchewan Federation of Labour expressed concern about the government’s decision to drop a proposed rule that would have banned employers convicted of certain serious crimes from hiring foreign workers. Federal President Larry Hubich said, "They've given us no confidence that they're going to enforce what they have there now."

In response, the government justified the proposal as being "too rigid and cumbersome."  The proposal would have cost employers more money and there are issues about receiving timely criminal record checks. The government will rely upon the threat of compliance searches to deter employers from abusing foreign workers. Whether that is effective will depend on how much money the government commits to its compliance measures.

The new rules apply to all employers, including farms and agricultural employers, fast food outlets and restaurants, as well as to employers hiring skilled and specialized workers.

The government’s response to public criticism of the temporary foreign worker program has focused on its efforts to create jobs, economic growth and long-term prosperity. Minister Kenney, in announcing the changes, stated the government was “taking action to ensure that Canadians are always first in line for available jobs.” However, the changes the government states strengthen criteria for assessing LMO and work permit applications are minor in substance and to not appear to make it much harder for an employer to justify the need to hire a foreign worker.

As Minister Alexander stated in the announcement “One of the goals of the temporary foreign worker program is to deal with labour shortages on a temporary basis, and these reforms will help ensure that the program is used as intended.” Stories still get published about forecasts of worker shortages in Canada.

The government is proposing a new “expression of interest” system to select qualified immigrants for permanent residence to meet employer needs. That system will not be in place until 2015. Until then the government and employers will continue to rely on the temporary foreign worker program to meet immediate employment needs. Continued conflict between the federal government and provincial governments over job training funding also raises concerns about the ability to train Canadians to fill worker shortages. Unless worker shortages decrease, many employers will continue to seek approval to hire foreign workers.

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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Immigration barriers contribute to visa fraud

The Asian Journal recently reported Richard Kurland’s disclosure of government investigations into immigration fraud in India; an ongoing concern of the Harper government.  As I noted on Nov. 6, the Harper government has increased immigration enforcement spending from $91-million in 2010-11, to $150-million in 2012-13. At the same time, the government has created more selective rules for immigration. The correlation is no coincidence.

Increased enforcement spending coincides with former Immigration Minister, Jason Kenney, touting the government’s initiatives in fighting immigration and citizenship fraud. In July, 2011, he announced measures by the government to combat citizenship fraud In 2012 he announced measures to address marriage fraud, and to increase cooperation with the United Kingdom, Australia and India to combat fraud in visitor and immigration applications.

More details of the immigration department’s efforts to combat fraud in India were recently disclosed by Carol McKinney, the Immigration Program Manager at the visa office in Chandigarh, when she testified before the House of Commons Standing Committee on Citizenship and Immigration on Nov. 26. The Chandigarh office processes temporary resident applications from northern Indian states, primarily from Punjab and Haryana.

Appearing by videoconference from India, Ms. McKinney told the assembled MPs on the committee, that in 2012 the visa office refused 329 applications for misrepresentation discovered through verifications. She added that an estimated 15 to 20 per cent of all refused applications contain misrepresentation of some kind. She noted a lengthy list of fraudulent documents used by various applicants. Prospective students included documents such as fraudulent letters of acceptance, language test certificates, academic records, reference letters and identify documents.

Fraudulent temporary workers often provide phony ESDC labour market opinions and letters for their employment. Visitor visa applicants regularly submit falsified Indian bank statements or falsified documentation from Canada, such as invitations from non-existent Canadians or fraudulent funeral home letters for funerals that are not taking place.

In the past eight years the Chandigarh office has tripled the number of temporary visas issued, to about 18,000 in 2012, with an acceptance rate of 53 per cent, up from 38 per cent in 2004. It handles the workload with six Canadian officers, supported by 19 locally hired staff.

The Chandigarh office added an anti-fraud officer in September, 2012, allowing it to increase its ability to verify information from employers and schools in person. This allows the anti-fraud officer in New Delhi to increase investigations in other parts of India. Ms. McKinney also noted that Chandigarh's new anti-fraud officer has assisted local law enforcement officials, who, particularly in Punjab, have targeting unregistered and unlicensed consultants.

Partnering with other countries, such as Australia, New Zealand, the U.K., and the United States, information provided to the Punjab Police led to a raid in May, 2013, on six Jalandhar-based consultants, resulting in the arrest of their owners and seizure of money, passports, visa applications and suspected false documents.

When asked why the acceptance rate was lower than the 80-per-cent worldwide approval rate, Ms. McKinney said the reason was due to more fraudulent applications and the belief that many applicants will not depart Canada following an authorized stay. She also noted that the acceptance rate has increased through the use of visa application centres (VAC). These privately run outsource centres help with the administration of temporary visa applications by ensuring applications are complete. There are nine VACs in India, with two in Punjab.

Other witnesses before the committee noted the increased demand for visitors from emerging economic markets such as India, China and Brazil. This has put added pressure on government resources to deal with those areas. Funding has increased in the past year for visa offices in those countries. In spite of economic growth in India, Ms. McKinney stated that there is a strong incentive for residents of the Punjab to seek better economic opportunities abroad, particularly among the young unemployed or underemployed. Since many of them do not meet Canada's visa requirements, officials from Canada and from key partner countries are very concerned about the growing evidence of fraud and misrepresentation.

The Times of India on July 28 pointed out that new data based on consumption expenditure surveys shows that income disparity in India is growing and at a rapid clip, despite the changes to India’s economy in the past two decades. People will continue to migrate whenever there is lack of opportunity. At the same time Canada’s immigration policy has become more focused on economic considerations, making more people unqualified to immigrate. Immigration fraud will continue to be a problem, not just from India, so long as economic disparity continues and the barriers to entry get harder.

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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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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