ႈImmigration ဆိုင္ရာမ်ား

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ႈImmigration ဆိုင္ရာမ်ား

Post  burmanone on Tue Mar 10, 2009 10:59 am

Spousal Sponsorship Values are un-Canadian



You would think that “true love” would be enough for Canada’s immigration department to conclude that a marriage is genuine.
Unfortunately, that is not the case.
Officers have little guidance from our Immigration Regulations as to what is a “genuine” relationship and so Citizenship and Immigration Canada (CIC) publishes its policies and instructions to its officers in its immigration manual.
Canadian citizens and permanent residents who marry foreigners should be aware of what immigration officers are looking for when they are assessing the genuineness of a marriage or common law partnership for sponsorship purposes.
CIC’s somewhat dated policy manual expects Canadian citizens and permanent residents who marry foreigners to marry in a manner that “conform(s) to the beliefs and cultures of the participants” in order for the department to consider the union genuine.
Furthermore, the same policy manual expects marriages that are solemnized abroad to be consistent with the “cultural norms” of the foreign country in order to support a favourable decision.
These expectations create a number of different problems.
If, for example, arranged marriages are the cultural norm in a particular country, a Canadian immigration officer reviewing such a case may negatively view the marriage of two people who meet and fall in love in that country.
Similarly, in certain countries societal norms strongly dictate that a person should marry someone of similar economic, religious, educational, or cultural backgrounds. While these values have lost ground in Canada, our immigration department still uses these outdated values as a measuring stick to assess the genuine nature of a relationship involving a Canadian citizen or permanent resident.
Canadians who enter such marriages without complying with these foreign societal values may find themselves celebrating their wedding without the presence of key relatives and friends who would normally be on hand. The department’s policy manual suggests that officers consider the wedding itself, where it was celebrated, and who attended it in determining the genuineness of the relationship. Again, if this is not consistent with what the department feels is normal the sponsorship can be refused.
In Canada, the “cultural norm” is that we can marry any adult of our choosing without any legal consequence. Canadians who marry abroad are expected to conform to alien values or risk being separated from their spouse for a lengthy period of time or permanently.
The guidance given by CIC to its officers is archaic and should not require Canadian citizens and permanent residents to marry in a manner that complies with any standards other than our own.
Canadians who find themselves in these circumstances should not lie about how they met, or how they were married and who attended the nuptials. Where the relationship is genuine, it is always easier to overcome a refusal on appeal than it is to explain a lie that was intended to make a couple look more “normal”.

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ကေလးေမြးရင္အမ်ိဳးေခၚ...

Post  burmanone on Tue Mar 10, 2009 11:02 am

Q: My wife and I just had our first child. My wife plans to return to work soon. However, we are wondering if this will be possible due to the high costs of daycare. We have many relatives outside Canada who have volunteered to come here and help us baby-sit for some time. They haven’t taken any babysitting courses. However, they do have experience in raising children of their own. My wife and I would feel more comfortable with them than a stranger. Is there any way to do this other than just coming with a visitor’s visa? Is there any temporary work permit for family members willing to help us raising our son?

A: Congratulations on becoming a new dad!

The real issue here is whether or not your relative will be engaging in “work” while they are in Canada. If so they will probably need a work permit to do so.

Someone is considered to be performing “work” when wages or commission is earned, or when they compete directly with activities of Canadian citizens or permanent residents in the Canadian labour market.

If you plan on paying your relative, they will need a work permit. If you don’t pay them, they will be considered to be “working” if they are competing with Canadians or permanent residents. The immigration department’s policy manual says “unremunerated help by a friend or family member during a visit, such as a mother assisting a daughter with childcare” is not an activity which takes away from job opportunities in Canada. However, it is unclear if that were to apply if the help were to become more than an incidental part of your relative’s visit to Canada. If your relative provides full-time help, they might then be considered to be in competition with someone here who might want that job.

Since your relatives have not completed a course in childcare, and don’t seem to have live-in caregiver experience, they would not qualify for our Live-In Caregiver Program (LCP). However, they could still apply for a work permit outside of the program, provided that you are able to obtain a positive Labour Market Opinion from HRSDC. If they go this route, the completion of two years of employment in Canada would not entitle your relative to apply for permanent residence in Canada as it would for participants in the LCP.

Unfortunately, our laws do not clearly facilitate the entry of those people who we trust the most with our children.

burmanone

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Better for couples to apply together

Post  burmanone on Tue Mar 10, 2009 11:04 am

This week a reader asked about a young couple that is immigrating to Canada.
The plan is for the husband to immigrate here first and get settled. Then the wife would follow a year later.
They are wondering why the visa post is insisting on the wife filling out an application form at the same time as her husband when she is not planning to move here for at least another year.
This innocuous question raises an extremely important aspect of our immigration laws.
All intending immigrants to Canada must show that they qualify for selection under the category under which they are applying and must prove that they are not criminally or medically “inadmissible” to Canada.
Additionally, the principal applicant must show that his family members (i.e. spouse/partner and children) are also not inadmissible. This rule is designed to prevent the immigration of an otherwise desirable immigrant whose dependent might constitute a threat to us or to our universal health care system.
Accordingly, the wife must fill out an application form now in order to answer questions about her medical or criminal history. She must also undergo a medical examination prior to the finalization of her husband’s application whether or not she is coming to Canada now, later, or at all. If she is determined to be inadmissible to Canada, his application will also be refused.
This rule is designed to avoid two problems.
First, it would avoid the husband landing and getting settled here only later to find out that his wife can’t join him.
Secondly, it prevents the husband from becoming a permanent resident of Canada while married to an inadmissible person and acquiring the right to sponsor her and acquiring the right to appeal any refusal of such an application to the Immigration and Refugee Board.
The failure to disclose a family member is a material misrepresentation that could lead to the refusal of an application or to the deportation of the applicant after landing. A family member who is not examined will no longer be considered a member of the family class and cannot later be sponsored as such (unless it was specifically determined by an officer that they did not need to be examined).
Intending immigrants who have children in the care of their former spouse or partner must also have such children examined even if the kids are not coming to Canada. Such applicants are often met with great resistance by their former spouses who fail to understand why their child must undergo Canadian medical exams when they have no intention of letting that child immigrate here.
In this case, the wife will have to fill out forms and undergo medicals now to establish that her husband and his family members are not inadmissible. When the wife applies on her own, she will have to do it again to prove that she remains qualified to immigrate.
My advice would be for them to apply together. Once they are landed here she can return to her country temporarily while her husband gets well settled here.

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Nanny should wait to marry

Post  burmanone on Tue Mar 10, 2009 11:06 am

Q: I always read your article in the newspaper and noticed that you have been a blessing to a lot of people who need assistance and advice. Now I am writing this letter to seek some. I am under the Live-in Caregiver Program (LCP) and soon will acquire my landed status. I have a fiancé overseas. What is the best, right and fastest way to be reunited? Thanks a lot. God bless.

A: Congratulations on your engagement. Since you are under the LCP you are entitled to apply for permanent residence from within Canada after completing two years of caregiving here. Your fiancé cannot be included as your dependant in your application until you are married, or in a common law or conjugal relationship, as defined under our immigration laws.
Family members will be processed concurrently if they are included “at the time the application was made.” Applicants must list all family members in Canada and abroad, and indicate which ones they wish to have processed concurrently for permanent residence. Family members may not be added to an application once processing has begun (i.e. passing the initial evaluation stage).
You absolutely must notify immigration authorities in writing of any changes in your marital or common law status before you are landed. If you marry after applying but prior to landing, make sure you have confirmation that CIC has received your notice and ensure your spouse is examined before you are landed. If he is not examined prior to your landing, you will not be able to sponsor him later as your spouse. Furthermore, an undisclosed marriage prior to landing will be treated as a material misrepresentation and could lead to deportation proceedings, if discovered. CIC usually catches these misrepresentations when a sponsor includes a marriage certificate that pre-dates their own landing as a single person.
It is unimportant where you marry. However, the biggest reason for you to avoid getting married before you are landed is if your husband is medically or criminally inadmissible, both your applications will be refused. A newly wedded nanny can see two to three years of hard work go down the drain because of their grooms’ undisclosed drunk driving conviction or previously undetected medical problem.
He can apply for a visa to visit you here but there is no guarantee it will be approved. He should be truthful about having a fiancée/spouse in Canada even though it may make it more difficult for him to get the visa. Any lack of candour may come back to haunt you later when you sponsor him.
Of course, this will result in a longer separation from your partner, but this may be better than risking your hard work and future in Canada.

burmanone

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Sponsoring adult sibling tricky

Post  burmanone on Tue Mar 10, 2009 11:07 am

Q: I have a 36-year-old brother back home who probably does not qualify under the independent category. He is separated and was looking after my father who just passed away. He is the last surviving member of our family and is also the godfather of my oldest son. In addition, I have another brother in Toronto and we are both Canadian citizens. Can we sponsor him?

A: My condolences for your dad. Canadians can sponsor their brothers and sisters only if they are orphaned, under 18, and single. Adult siblings can only be sponsored indirectly.
For example, if you were sponsoring a parent, they could include their child who is under 22 and single.
They could also include a child who is over 22 if the child was substantially dependent on their parent since before they turned 22 and if they have been in continuous full time studies or pursuing vocational training since turning 22.
Since your brother was married and probably left school long ago, he is out of luck here.
You describe him as a “last surviving member”. Our laws allow you to sponsor one relative regardless of the relationship provided that you are alone in Canada and that you have no relatives abroad who you are eligible to sponsor.
In other words, Canadian immigration law serves the lonely Canadian, not the lonely foreigner.
Since you have a Canadian brother, and a spouse and child who I assume are also Canadian, you are not alone here and therefore cannot sponsor your brother under this provision.
If your brother is close to the 67-point passing mark for our Federal Skilled Worker Class (i.e. independent category) he might try to close the gap.
He could get additional points if he has an HRSDC-approved Canadian job offer waiting for him when he gets landed. He can also boost his points by obtaining a work permit and gaining one year of Canadian work experience or acquiring two years of studies here.
He can apply even if he is short on points. However I would discourage this since we have 850,000 applicants in the backlog many of whom have far more than 67 points.
He can also apply for permanent residence on humanitarian grounds. (Yes, this is possible from overseas, albeit uncommon.) I would only recommend this in the most unusual and compelling circumstances and where there can be no question of how he will support himself here.
If he remarries, he can come as the dependent of his wife if she qualifies for permanent residence. I would also check his qualifications against each provincial nominee program. This is a common, and clearly tough, situation but not one that is hopeless.

burmanone

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Work permits unfair to spouses

Post  burmanone on Tue Mar 10, 2009 11:09 am

How is it possible that it is easier for the spouse of a foreign­er to get permission to work in Canada than it is for the spouse of a Canadian citizen?

A few years ago our minister of immigration facilitated the issuance of work permits to spouses of foreign workers on the grounds that it was necessary to Canada’s economic competitiveness to grant them limited access to our Canadian labour market.
Since then, the accompanying spouse of a foreign worker could immediately apply for an “open” work permit — i.e. a permit that allows them to work in virtually any occupation of their choosing — provided that their spouse had a work permit that authorized them to work in a managerial occupation or in an occupation that usually requires a university or college education or apprenticeship training. Accompanying spouses were exempted from the usual requirement of obtaining a Labour Market Opinion (LMO) from Service Canada certifying their employment would not have a negative impact on our labour market. Furthermore, their work permits could be issued simultaneously with the work permit of the principal applicant or at a later date right at a Canadian port-of-entry.
Although this initiative was definitely a positive one, the plight of spouses of Canadian citizens and permanent residents was overlooked or ignored.
Unlike a foreign worker, a Canadian citizen or permanent resident who gets married to a foreigner cannot normally get their spouse working in Canada immediately. The foreign spouse of a Canadian citizen or permanent resident is not exempted from the LMO process and may need to wait a year or more to get working in Canada.
Spouses overseas are not given any special consideration that would allow them to work here before their sponsorship is finalized.
Foreign spouses who are in Canada with their Canadian spouses can apply for an open work permit only after their case has received “first stage approval.” This can easily take five to six months where an interview is waived or about 11 to 14 months where an interview is needed.
A fix to this glaring inequity is now overdue and should be given priority attention in 2008.

burmanone

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Getting a U.S. visa in a hurry for PR

Post  burmanone on Tue Mar 10, 2009 11:10 am

Last week, I chatted with two senior officials of the U.S. Consulate in Toronto about my recent urgent application for a visitor visa on behalf of a Canadian permanent resident whose mother was in intensive care in the U.S. following a serious car accident.
Some of the following is what I learned from Consul Jeffrey Tunis and Public Affairs Officer Nicholas J. Giaccobe.
Although Canadian citizens don’t need visas to visit the U.S., many foreigners, including Canadian permanent residents, do depending on their country of nationality.
Applications for these visas are strictly by appointment only, regardless of how urgent the situation. Appointments must be booked online using the consulates’ Visa Appointment Reservation System at www.nvars.com.
Appointments are not always available, and when they are, they are often several weeks away and too far into the future to be of any use. At the time of this writing, no appointments were available for the next six weeks.
Understandably, my client wanted to be at his mothers’ side now, not in weeks.
I was directed by consular staff to its emergency instructions on its website at http://toronto.usconsulate.gov but, frankly, I had quite a bit of trouble finding them. For those in need, they can be found by clicking “Visa Info” on the top blue bar and then “Visa FAQs” at the bottom of the yellow section on the left.
The consulate instructs individuals in such situations to select any appointment available online regardless of how far away it is in time. The applicant will need a passport number and pay $9 to book the appointment. The system will give them a reference number.
Applicants must then send an e-mail to TRTNIV@state.govrequesting an urgent appointment and must provide all the information specified in the FAQ. An automated response will be generated. However, a case-specific one will usually follow within a day or two with an earlier date, if the request is granted.
Examples of what constitutes a legitimate emergency are listed in the FAQ but both Tunis and Giaccobe stressed the circumstances contemplated are those that are “unforeseen.” Applicants who waited till the last minute to apply for a visa to attend a wedding in the U.S. will probably have to settle for a piece of frozen wedding cake brought back by a caring guest who did make it to the event.
Same day visas are simply out of the question because procedures implemented since 9/11 require certain security screenings, including facial recognition checks, to be done in the U.S.
Hopefully, you’ll never need this service. But if you do, perhaps this will help.

burmanone

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Claiming application points for Canadian relative may not succeed

Post  burmanone on Tue Mar 10, 2009 11:12 am

Q: We have a pending immigrant application to Canada and we wanted to obtain points for having a relative in Canada.
To prove that my husband’s aunt is residing in Canada, the visa post has asked us for the following:
Pay slips issued to your relative by a Canadian employer in Canada, Canadian income tax documents (recent notice of assessment) credit card and bank statements from the past six months showing transactions that occurred in Canada. Utility bills and property ownership documents will not be accepted as conclusive evidence of your relatives living in Canada.
My aunt-in-law and her family just recently landed in Canada and do not have tax assessments or pay slips.
Her husband has a credit card statement for the past 2 months. Although she is a cardholder on the account her name doesn’t appear on the statement. She has a bank statement but no transactions on it. Can we still get points for them?


A: You may be in a delicate situation, but not for the reasons that you think.
First, the basics. A person who is applying for permanent residence to Canada under our skilled worker category needs to score at least 67 points in addition to meeting all of the other requirements of our immigration laws. Although you cannot be sponsored by your husband’s aunt, you are entitled to an award of 5 points simply for being related to her, provided that she is living in Canada. She will not be in any way responsible for you financially, or otherwise, after you arrive in Canada.
To claim these points you must simply prove that she is a Canadian citizen or permanent resident, that you or your husband are related to her, and that she resides in Canada. The burden of proving these facts rests squarely on your shoulders. Our laws do not specify what documents must be shown to prove these facts. Accordingly, you can use any documents that are available to you in the circumstances of the case. The officer must act reasonably when considering them and cannot reject your application simply because you can’t comply with his/her request. A copy of your aunt’s PR card will show her landing date and so the officer can’t expect you to provide proof of residence before this. I would suggest that you do include documents such as a deed, lease agreement, utility bills etc. to prove her residence even though these documents, in and of themselves, are not considered conclusive proof of residence. I would also include a sworn declaration of your aunt and her husband and perhaps of a neighbour, clergyman, landlord, or other responsible person who can attest in writing to the fact that she is living here. Hopefully, the officer acting reasonably will consider these to be sufficient in the circumstances.
However, there may be a more serious problem.
You can only claim points for those facts which existed at the time that your application was filed and which continue to exist at the time that your visa is issued. If your aunt was not a permanent resident or was not living in Canada on the date you filed your application you will not be entitled to any relative points. Similarly, if she leaves Canada before your application is decided, you will not be entitled to these points.
Since your aunt only recently arrived, I am worried that if you applied before she arrived here you may not be able to claim the five points that you might need to achieve a passing score.

burmanone

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Deportees lose important incentive to leave

Post  burmanone on Tue Mar 10, 2009 11:14 am

A recent Federal Court case confirms that the immigration department is deliberately making it much more difficult for qualified immigrants who were deported from Canada to ever return here legally.

The department’s approach is intended to discourage illegal immigration and to foster greater respect for our immigration laws. However, this new approach will only achieve the opposite effect.

When a person is subject to a deportation order they can never return here unless they first obtain an Authorization to Return to Canada (“ARC”) in addition to obtaining whatever temporary or permanent visa they may require. It has been my experience that if a visa officer concludes that an applicant otherwise qualifies for an immigrant visa (i.e. they have the necessary points etc. to qualify for our skilled worker category) then an ARC would be issued so that the person can be landed.

In more than 21 years of practice I can’t remember even a handful of individuals, if that, who qualified for permanent immigration but only to be denied an ARC. Until just recently, I have never been asked by a visa officer for legal submissions to support a request for an ARC. Provided that the client pays the $400 government fee and provided that there is no criminal or medical inadmissibility issues involved, getting an ARC has always been fairly routine business.

Not anymore.

In January, CIC updated the ARC policy in its operational manual. The manual now informs our immigration officers that the ARC requirement “is intended to send a strong message” and should not be used as a “routine way” to overcome the bar to admission created by a removal order.

Now applicants bear the burden of persuading an immigration officer that “compelling or exceptional circumstances” exist to justify a recommendation for an ARC. A program manager, deputy program manager, or operations manager must then approve the officer’s recommendation.

This requirement will clearly make it much more difficult for those who were removed from Canada, whether they paid for their own removal or not, to ever return here -- either temporarily or permanently, even if they otherwise meet all of the other requirements under our immigration laws.

In June, the Federal Court heard the case of Gurbhagwant and Preetkiran Khakh who came to Canada illegally in 2003 to make a refugee claim. Their claim did not lack credibility. It was simply refused because the IRB found that the couple could have sought refuge in other parts of India. While still in Canada, the Khakhs were nominated by Prince Edward Island for permanent residency under its Provincial Nominee Program. Although the Khakhs left Canada in March 2006 in compliance with their removal orders, their immigration application that had the backing of PEI was refused in May 2007 when the visa officer could not find any “compelling or exceptional” reasons to recommend an ARC.

It is clear that immigration lawyers and consultants must now inform their clients who are under removal orders that if they leave Canada there is a serious risk that they will never be allowed to return here even if they meet all of our immigration requirements.

No doubt, many will simply decide to take their chances here …underground.

One would think that foreigners in this situation would be given an incentive to go home and do things legally.

However, this ill-advised policy will undoubtedly have the opposite effect.

burmanone

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Expired visa means another three-year wait

Post  burmanone on Tue Mar 10, 2009 11:18 am

Q: I successfully applied as a skilled worker without a lawyer.
I booked my flight to Canada for two days prior to the expiry of my permanent immigration visa. Unfortunately, I got sick just before my departure and was unable to travel.
I took the flight a week after the expiry of my permanent residence visa and after I had begun to feel better. However, when I arrived in Canada my immigration was cancelled in spite of all the documentation I had concerning my health problem.
I was told to contact the visa post. When I called, they told me there is not much that can be done and that I would have to apply for permanent residency again.
What can I do now? Is there any possible way to get the visa extended? I have documentation of my tickets and the hospital.


A: You applied legally, waited patiently for about three years, and met all of our criteria for permanent residence.
Although you have done nothing wrong, except perhaps to have gotten sick near the time you planned to immigrate to Canada, our immigration laws are nonetheless quite rigid in these circumstances.
Why? I'm not sure.
The immigration department's manual is pretty clear. “A person who presents an expired or cancelled permanent resident visa cannot be authorized to enter Canada as a permanent resident.”

Period.

Not only that, it is likely that you will end up with a removal order because you appeared at a Canadian port-of-entry seeking to establish yourself here as a permanent resident without having a valid permanent resident visa in hand.
As for the possibility of extending your visa, this is what the manual has to say. “The validity of a permanent resident visa may not be extended. Nor can replacement visas be issued with a new validity date. If foreign nationals do not use their visas, they must make a new application for a permanent residence visa. They must also pay a new application processing fee. If they have paid a right of permanent resident fee, they do not need to pay it again.”
An exception is made for those who, for reasons beyond their control, receive visas that are valid for less than two months. If they cannot travel before their visas expire, officers can re-issue medical instructions etc. and a new visa will be issued when the requirement has been met again.
This however, doesn’t seem to apply to you.
Normally, a foreign national who holds a permanent resident visa and against whom a removal order has been made can appeal to the Immigration and Refugee Board. However, there is case law which strongly suggests that the Board would not have jurisdiction to hear your appeal since you are not a holder of a permanent resident visa since yours had expired.
Had you sought the advice of a lawyer earlier you might have been advised not to cut your departure so close to your visa expiry date. Having done so, you would have been strongly urged to get on the plane if at all possible.
Now, your most likely chance for success would be to simply start again and wait another three years or so.


Sad, isn’t it?

burmanone

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Avoid delays when making a refugee claim

Post  burmanone on Tue Mar 10, 2009 11:19 am

Poor Deca Lesmond.
In 2001, she came to Canada with her daughter and the child’s father
While in Canada, Deca’s partner was abusive with her and in 2003 he was arrested and placed on a protection order. In March 2006 he was deported to St. Lucia, all-the-while blaming Deca for his misfortunes and threatening to “get her” when she returned home. Citing her fear of her ex-partner, Deca made a refugee claim here in August 2006.
The Immigration and Refugee Board accepted the truth of the essential facts of her case. In particular, the Board accepted that not only was Deca abused in Canada but that she was also abused by her ex-partner prior to coming here.
Nonetheless, the Board denied her asylum claim.
The Board resorted to the often-used ground for refusal: “delay.”
The Board felt that Deca’s actions were not “consistent with the actions of a person with a subjective fear of persecution.” It reasoned that she obviously knew how to turn to Canadian authorities for protection from her husband when he abused her here, and since she was being abused by him prior to their arrival here, she should have advanced her claim as soon as she arrived in Canada.
The Board expects that a person with a genuine fear of persecution will immediately seek asylum immediately upon arrival here. Board members often reason that a person who doesn’t do so is obviously not in genuine fear.
Any lawyer who practices in this field knows this not to be the case for several reasons.
Firstly, many genuine claimants are afraid to make a claim at the airport since they believe that they will be sent back on the very same plane on which they arrived. They prefer to enter Canada, get away from the airport, and seek trustworthy guidance before approaching authorities.
Secondly, when people are in genuine fear, they will avoid anything that creates the possibility that they might be returned to the place where they face danger. If they make it to Canada without incident, they will often remain underground for years without making a claim. They know that making a successful claim only has, statistically speaking, about a 50 per cent chance of success and, of course, a 50 per cent chance of refusal. They feel that it is safer to remain underground than it is to surface.
Thirdly, many claimants come from countries where authorities simply can’t be trusted. Getting them to trust ours takes time.
Yet in other cases, clients who appear to qualify for permanent residence in Canada might apply through other means believing them to be a safer option than playing Russian roulette with the Board.
It sometimes seems that the Board is stuck in the days of the Cold War when the very first words uttered by a defector were a request for protection.
Deca got lucky when she appealed to the Federal Court. Mr. Justice Campbell found it “obvious” that until 2006 there was no reason for her to make a refugee claim and concluded that the decision to the contrary constituted a “fundamental reviewable error.”
A delay in making a refugee claim carries a certain amount of risk and should be avoided whenever possible.
Having said that, I believe that it is those who truly fear for their lives who are in the best position to decide for themselves, and their dependents if, and when, they should place their lives in the hands of our less-than-perfect refugee board.

burmanone

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Proxy marriages reside in murky legal territory

Post  burmanone on Tue Mar 10, 2009 11:21 am

Q: I came to Canada as a refugee. After my arrival, my family organized a customary marriage ceremony for me with a girl back home. I was not at the ceremony but I was represented by my brother. She became my wife after the ceremony. In my immigration application I included her as my wife. Later, I did not want the marriage anymore so the families met to dissolve the marriage. Now I want to get married here. Do I need authorization from the Ontario government in order to get a marriage license?

A: A person who was divorced abroad and who wishes to marry in Ontario must obtain authorization from the provincial Minister of Government allowing a marriage license to be issued. The application must be accompanied by a legal opinion from an Ontario lawyer stating why the divorce should be legally recognized here.
That, I am afraid, is the easy part of your question.
The more difficult part of your question concerns whether or not you were ever legally married. If your proxy marriage did not create a legal union, then it follows that no divorce is needed.
A marriage that took place outside Canada is recognized for immigration purposes if it is valid “both under the laws of the jurisdiction where it took place and under Canadian law”.
Our immigration department’s policy manual states that “a marriage that is legally recognized according to the law of the place where it occurred is usually recognized in Canada.” Of course, this would not include polygamous marriages or those which are between close relatives since these types of unions are illegal here.
So, if your marriage by proxy is legally recognized in the country where it took place, then from the Canadian point of view, you are legally married and therefore require a legal divorce to dissolve it. Assuming the family meeting dissolving the marriage constitutes a legal divorce where it took place, the foreign divorce will usually be recognized in Canada if your spouse was ordinarily resident in the foreign country for at least one year immediately preceding the divorce application.
If the marriage that took place abroad did not create a legal union, then you might have a different problem if you now deny ever having been legally married. Remember, you described yourself as married in your immigration application. If you now take the position that you were never married, your application might be refused by an overzealous officer who may cite you for “misrepresentation.”
I would get a family law specialist to assess the validity of both your marriage and divorce and the advisability of seeking a divorce or an annulment here in order to erase any doubts as to your eligibility to marry.
As you can see, proxy weddings can cause big headaches…and are nowhere near as fun as the real thing.

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Applicants' personal information to be released to foreign governments

Post  burmanone on Tue Mar 10, 2009 11:54 am

Immigration Minister Jason Kenney and his officials at Citizenship and Immigration Canada are making a mockery of Canada’s privacy laws by forcing foreign nationals, and possibly permanent residents, to agree to the release of their personal information to any and all foreign governments.
Last week, immigration lawyers discovered that the form used by foreign nationals for an extension of their stay in Canada (Form IMM1249) contains some new and disturbing language.
The new form readily acknowledges that by virtue of Canada’s Privacy Act “individuals have the right to protection of and access to their personal information.” Nonetheless, the form declares that the applicant’s personal information may be shared not only with the CBSA, the RCMP and CSIS but also with any “foreign governments.”
The applicant is required to agree that they are “not obliged to consent” to the release of the information, but they must acknowledge that “failure to do so will mean that the request will not be processed.”
This seems to be a violation of the Immigration and Refugee Protection Act which states that an officer “shall” extend the status of a foreign national in Canada if the officer feels that the applicant continues to meet the requirements for temporary status here. There is no requirement found in IRPA for the consent that is now being demanded. In any event, since this “consent” cannot be refused, it can hardly be called a “consent” at all.
It appears that the immigration department is attempting to impose a new requirement in the immigration application process that is not sanctioned anywhere in our immigration laws and which may also, in fact, amount to a violation of the letter, if not the spirit, of Canada’s Privacy Act.
According to Douglas Kellam, spokesman for CIC, this “generic message” is currently being implemented in thirty or so immigration application forms.
Given the significant privacy rights at stake by this development I contacted Ann-Marie Hayden, media relations officer for Canada’s Privacy Commissioner, who confirmed that her office was not consulted prior to the development of this dubious initiative.
It seems that this week I have more questions than I have answers.
Why was this change needed? Is it legal? When, if ever, does this “consent” expire? Can it be withdrawn? Will the applicant be told when his information is disclosed to a foreign government? What protection will be afforded to those who may face risk abroad as a result of the release of personal information? For example, if a foreigner enters into a same-sex marriage in Canada, can that information be released to the applicant’s government which views homosexuality as a serious crime? Will CIC return applications that have already been executed on the old forms? If so, when will this start? Or, has it already started?
While we await the answers to these questions, those facing the imminent expiry of their temporary status in Canada should immediately seek legal advice should they be concerned about the consequences of the possible release of their personal information.
Jennifer Stoddart, Canada’s Privacy Commissioner, states that it is her job “to heighten the value of privacy in a global society where security, trade, technology and consumer expectations have created a volatile atmosphere for our personal information.” She concedes that “governments have a seemingly insatiable appetite for personal information” and that privacy rights often receive “short shrift” as new anti-terrorism and law enforcement initiatives are rolled out.

This week, CIC has proven her right.


What remains to be seen is, will CIC get away with it?

burmanone

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Plenty of potential pitfalls for sponsoring foreign fiancées

Post  burmanone on Tue Mar 10, 2009 11:57 am

Q: I am engaged to a woman in Vietnam. I’ve been doing some research online and understand that Canada no longer has a fiancée class. Should I have my fiancée come here as a visitor and have her apply for permanent residence from within Canada? Or should I go to Vietnam to get married and then sponsor her? Which option is better?

A: Your question is more complicated than you think, and for reasons you may not have considered.
Of course, you are right about the fiancée class. It was killed off in June, 2002. Since then, couples can no longer process their immigration applications at the same time that they are making their wedding preparations. Now they must wait until they are actually married before filing an application. This has unnecessarily forced a lengthy separation on many couples at precisely the time when they should be building a new life together. The reasons for this change have never been adequately explained by CIC, and this development persists as one of the most regressive amendments to the 2002 overhaul of our immigration laws. In contrast, the Americans, who also tightened up their immigration laws after 9-11, did not drop their fiancée class.
Obviously, it is almost always more desirable for people in your situation to bring their fiancée here to get married and start the process from within Canada. But many make a terrible mistake when they do so. The word that people hear on the street is that when you apply for a visitor’s visa at a Canadian visa post oversees, you shouldn’t tell them that you are engaged since this will almost certainly lead to the refusal of the application. Applicants who follow this advice often conjure up unrelated or false reasons for coming to Canada. If successful, however, a marriage ceremony is usually held here soon after the fiancée arrives and is then quickly followed by an inland spousal sponsorship.
Now the couple faces a serious dilemma.
The application forms ask for details about the evolution of the relationship. How you met, where you met,
and when you met. If you tell the truth, this will inevitably lead to a question from CIC:
“Why didn’t your fiancée mention your relationship when she applied for a visitor’s visa?”
The withholding of this information will likely be used by CIC to substantiate a finding that you and your fiancée lack credibility. CIC may reason that if you were prepared to lie to them once for immigration related reasons, you may be lying to them now in connection with the application for permanent residence. This could easily lead to a refusal of the application for permanent residence. If you lie and say you met here, you will have to abandon real evidence about your relationship in favour of weaker, fabricated evidence.
Since this would be an inland sponsorship, as opposed to an overseas sponsorship, you will have no right to appeal to the IRB. Instead, your only recourse will be to the Federal Court where your chances of success are likely to be a fraction of what they would have been at the IRB.
By all means try bringing your fiancée here as a visitor. Make sure that she discloses that she is engaged to you. In my view, her visitor’s visa application will be a bit of long shot since the Canadian High Commission in Singapore will be more inclined to refuse it than to accept it.
However, at least she won’t mess up her chances of living permanently with you in Canada.

burmanone

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Clarification on 'implied status' not so clear

Post  burmanone on Tue Mar 10, 2009 11:59 am

Sometimes I feel like our immigration department makes things complicated just to baffle the public and keep immigration lawyers employed.

A case in point.

When a foreigner in Canada is about to run out of status they must submit an application to the Case Processing Centre in Vegreville, Alberta to extend their stay if they are to remain here legally.
Vegreville is currently taking 74 days to issue a study permit, 97 days to extend the status of a visitor, and 73 days to extend a work permit.
The frequent question that arises is: What happens if your work permit expires before you receive an extension? Can you still work in the meantime?
The answer to this is pretty simple. You may still do so under the terms of the expired work permit until a decision is communicated to you. This is so because you are granted “implied status” from the time you applied until the time that a decision is communicated to you.
However, what happens if the worker leaves the country briefly while awaiting a decision on an extension? When he returns to Canada, can he return to work while he continues to wait for the extension application to be processed?
The relevant section of the Immigration and Refugee Protection Act (IRPA) states that “if a temporary resident has applied for an extension…the period is extended…until a decision is made.” This seems to apply to temporary workers since they are classified as “temporary residents.” It contains no limitations for brief departures.
However, in an unrelated part of IRPA, i.e. the part which deals with those foreigners who are allowed to work in Canada without a work permit, the Act includes a provision which clouds the issue. It says that a person can work in Canada without a permit if they made a timely application for an extension and “if they have remained in Canada after the expiry of their work permit.”
Needless to say these two provisions suggest different answers and have caused quite a bit of confusion. The first provision suggests that the worker who briefly departs Canada continues to have implied status while the second suggests that they can’t return to work in Canada after a brief absence while awaiting processing. As a result, port-of-entry officers have been dealing with this scenario inconsistently.
On January 15th, the immigration department issued a bulletin ostensibly clarifying this situation. Indeed, a foreign worker who leaves Canada in these circumstances can re-enter Canada as a temporary resident but only if they are from a visitor visa exempt country or if they have a multiple entry visa. However, they will lose their right to work here “until their application for renewal has been granted.”
This result makes little sense from a public policy point of view.
Wasn’t the whole point of “implied status” to avoid disrupting Canadian employers and their businesses while their lawful foreign workers wait for Vegreville to process an extension request?
The answer to our question is now “clear.” However, the rationale for allowing the re-entry of a worker who left Canada with “implied status” but denying him the right to return to work while his work permit is being renewed is far from it.

burmanone

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Federal government delivers on protection for workers

Post  burmanone on Tue Mar 10, 2009 12:04 pm

It is not surprising for countries facing tough economic times to implement measures intended to better protect their domestic workers.
In Canada, this responsibility falls on the shoulders of Human Resources and Skills Development Canada (HRSDC).
Subject to certain exceptions, Canadian employers who wish to recruit foreign workers must demonstrate to HRSDC how the entry of the foreign worker(s) will transfer skills and knowledge to Canadians, fill a labour shortage, or directly create or retain job opportunities for other Canadians.
Canadian employers who wish to recruit overseas must first make an application to HRSDC for a Labour Market Opinion (LMO). If HRSDC is satisfied that the recruitment of a foreigner is in our interests, it will issue a positive LMO which then paves the way for the chosen foreign worker to submit a work permit application at a Canadian visa post overseas.
On Jan. 1, HRSDC implemented a national advertising requirement for all occupations.
The failure to comply with these minimum advertising requirements “will result in the application for a LMO being denied.”
As a general rule of thumb, the more complex the position, the less advertising is needed since those skill sets are believed to be harder to find here. The “lower” the position, the more likely it is perceived that we should be able to find someone locally to do the job.
Accordingly, employers who are offering positions in management or in occupations which usually require a university degree (i.e. positions described in our National Occupations Classification as skill levels O and A) must advertise the position on the national job bank (www.jobbank.gc.ca) for at least 14 calendar days. Alternatively, they can conduct similar recruitment activities consistent with the practices prevailing within that occupation. This can include advertising in professional journals, newsletters, national newspapers, or even consulting with unions or professional associations. These efforts must be made during the three months prior to the LMO application.
For occupations which usually require college education or apprenticeship training (i.e. NOC B occupations) advertising in the national job bank is mandatory and cannot be substituted with the alternatives listed above. Additionally, the advertisements must include the employers name and address and must disclose the wages being offered. This latter requirement will make this type of recruitment more delicate since existing employees will have access to the wages being offered to their foreign counterparts.
Lastly, employers who are recruiting those in occupations which require only high school education, occupation-specific training, or on-the-job training (i.e. NOC C and D occupations) must advertise on the job bank and must conduct other recruitment activities consistent with the practice in the occupation in question, all within three months of the LMO application. They must also demonstrate reasonable “ongoing” recruitment efforts in communities which face barriers to employment i.e. Aboriginals, seniors, and other disadvantaged groups.
HRSDC makes it clear that these requirements are the minimum efforts that can be expended and reserves the right to impose additional requirements.
From a public policy point of view, the recruitment of foreign workers is tricky business at the best of times. In the worst of times, the public insists on greater protection.
Now, it’s been delivered.

burmanone

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What's needed to claim points for a blood relative

Post  burmanone on Tue Mar 10, 2009 12:06 pm

Q: My uncle is living in Canada. I want to claim five points for having a blood relative living there. Please let me know what documents I would need to prove that he's my uncle. He has lots of documents to prove that he's permanently living in Canada and will provide me those, but I don't know what documents they will ask me to provide to prove that he's my uncle.

A: Amongst the many requirements that applicants must meet to be approved under our Federal Skilled Worker category, they must also score at least 67 points. Points are awarded for a number of things such as education, age, abilities in English or French, work experience, etc.
If you can prove that you have a qualifying relative living in Canada who is a Canadian citizen or permanent resident then you will be awarded five points for “adaptability,” since it is assumed that your relative will help you to adapt to your new life in Canada.
It is important to note that your uncle cannot “sponsor” you and, in fact, does not assume any responsibility for you in any way. He does not need to “consent” to your immigration as it is his status and residency in Canada that gives you points, not his willingness to support you. Interestingly enough, there is no legal requirement that he even know of your immigration plans although it is likely that he will since you will likely need his help in gathering certain documents.
What you must do is prove three things. First, you must prove his status in Canada through a Canadian birth certificate, passport, citizenship certificate, or a record of landing or permanent resident card.
You must also show that he is living here. This is usually accomplished through a provincial driver’s license, a Canadian employment letter, a deed to property here, utility bills etc.
As for proving his relationship, there is no method stated in our immigration laws for doing so. Normally, you will be asked to provide the birth certificate of your parent who is your uncle's sibling. You will also need your uncle’s birth certificate. Both certificates should show the same parents. This proves that your uncle is the sibling of one of your parents.
When one or both of these birth certificates is not available, you will need to get creative. You should always start by producing affidavits from one or more reliable sources attesting to the qualifying relationship and the source of that knowledge. You should also have a sworn statement explaining the absence of these certificates. Officers know that in many parts of the world births are not always recorded. If your uncle immigrated to Canada, he may have disclosed the existence of your parent when he completed his forms. That might help to buttress your case. If he didn’t…look out!
Remember, you bear the burden of proving your case. If you need these points to reach 67, the officer will look at your evidence much more closely because it is determinative of your application and you are relying on less than ideal proof.
I am confident that you will be fine and that you will be joining your uncle here sometime soon.

burmanone

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How will the recent downturn affect immigration levels?

Post  burmanone on Tue Mar 10, 2009 12:09 pm

I was asked recently how the current economic downturn might affect Canada’s annual immigration levels.
Immigration laws require our immigration minister to table a report with Parliament no later than 30 days after Nov. 1 of each year setting out how many newcomers Canada took in during the previous year and how many it plans to take on in the coming year.
Accordingly, in late November 2008, newly-appointed immigration minister Jason Kenney announced that in 2009 between 240,000-265,000 new permanent residents will be accepted in Canada. This exact target was used three years in a row and hasn’t really deviated too much from the annual targets set over the previous decade or two. In setting this target, Kenney maintained that this number is necessary to respond to the diverse skill requirements “of an expanding and dynamic economy.”
In his report the minister also hailed the accomplishment of his government when it passed Bill C-50, which presumably gave the immigration minister “more flexibility in processing and managing applications.”
Logic dictates that the minister might now wish to avail himself of his newly acquired powers and adjust his immigration plan, given that the plan was premised upon “an expanding and dynamic economy” when, in fact, we are confronted by a shrinking and underperforming one.
The truth is that, in terms of immigrants coming here permanently, it is unlikely that the actual number that will be admitted in 2009 will be far different from the one forecasted. Even if it were, it would likely have little impact on the Canadian workforce.
The reason is that as a percentage of our population, 240,000-265,000 newcomers represent less than one per cent of our national population. This number is even less significant when we factor in people who will be leaving Canada permanently during the same period.
Furthermore, the minister doesn’t really have that much wiggle room. Up to 71,000 of these future immigrants will be coming to Canada under the family class as sponsored spouses, partners, parents, children, and grandparents. It would be unwise for the minister to tell Canadians that their close family members will not be coming to Canada this year due to a deterioration in our economic conditions. Another 27,200 permanent visas are reserved for protected persons who we are, more-or-less, bound to offer refuge or protection here. Then there is another 10,000 immigrants who we will be accepting for a wide range of humanitarian considerations. That will leave about 156,600 in the “economic class” of which a growing percentage is selected by the provinces and territories. Kenny is certainly not likely to take them on either.
There is no doubt that the economic downturn will be more severe in countries whose economies are not as diverse and mature as ours, thereby making Canada relatively more appealing. However, that will only increase the number of applications we are likely to receive, but not the number of permanent residents that we will accept.
As for those who will want to come to Canada on temporary work permits, it is likely that it will be more difficult for them to get a favourable labour market opinion from HRSDC whose job it is to make sure that Canadian workers are not overlooked when our jobs are offered to foreigners.
Canadian businesses are able and willing to change direction quickly when market conditions dictate. Although the legal mechanisms exist in our immigration program to effect changes, for practical and political reasons it is not an easy option to exercise.

burmanone

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Canada follows the Americans' lead in extending duration of work permits

Post  burmanone on Tue Mar 10, 2009 12:11 pm

In May, I wrote about an announcement by the U.S. immigration service whereby it would start to issue TN work permits to Canadian and Mexican professionals for a maximum duration of three years as opposed to the previous maximum of one year.
The purpose for this change was to make employment in the U.S. for Canadian and Mexican professionals “more attractive.” Specifically, the change would reduce the potential for interrupted employment caused by annual renewals and delays in processing. It would create a more stable and predictable work force and provide cost and resource savings to the foreign workers and to their American employers.
Although this initiative applied only to professionals admitted to the U.S. under the terms of the North American Free Trade Agreement, the action taken by the Americans was entirely unilateral. Although, neither Canada nor Mexico committed to reciprocity, it was expected that they would follow suit.

Canada has now done so.

On Dec. 15th Immigration Minister Jason Kenney announced that American and Mexican professionals seeking to work temporarily in Canada under NAFTA can get work permits for up to three years at a time. This is a good thing since foreign workers have better things to do than run between their HR departments and their immigration lawyers every 12 months to renew their status and that of their accompanying family members.
Although there is no legal limit to the number of times a foreign worker can renew these NAFTA permits, they will only be renewed as long as the reviewing officer feels that the worker is still here “temporarily.”
This has always been a weird sort of concept for me because these workers are not always here for assignments that have a finite purpose (i.e. building a bridge or setting up a computer system). Often these positions (i.e. accountants, architects, lawyers etc.) are offered and accepted on a basis that is perceived to be open-ended. Someone coming to Canada to work for a year or more in one of these occupations will often give up a job in their home country to accept the one being offered here. They are also likely to give up their dwelling abroad and bring their family and belongings here with them. Rarely do they have fixed arrangements to return to their country. Yet they still need to show a “temporary intent” both at the time of their initial entry and again at the time of renewal. It will be interesting to see what our border officers will be looking for in the form of proof of a “temporary intent” when the person will be coming here for at least three years.
While I wholeheartedly support this development, it is nonetheless interesting to note the title of my Nov. 16th column, “To predict the future of Canadian immigration policy, look to the U.S.” In this case, the title seems very aptly named since we followed in lock-step with our American counterparts notwithstanding, perhaps, some very strong reasons not to do so.
In May 2008, it no doubt made perfect sense for the Americans to make a career in the U.S. “more attractive” to foreign professionals. However, since then the wheels have suddenly and completely fallen off the economic bus here and there. Without the American announcement in May, I doubt that a Canadian immigration minister would have ever agreed to a threefold increase in the duration of work permits offered to any class of foreign workers at the same time that we are witnessing record job losses and unprecedented government bailouts.

Not an objection, just a thought.

burmanone

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Changes to skilled worker program even worse than originally feared

Post  burmanone on Tue Mar 10, 2009 12:14 pm

Last week I wrote about the inherent unfairness in our immigration minister’s plan to restructure our Federal Skilled Worker program.
Unfortunately, there’s more.
I explained that those who applied after Feb. 28, 2008 would be given priority in terms of processing over those who filed before that date. Strange perhaps, but true.
In order to qualify for this preferential treatment, applicants would have to have arranged employment confirmed by HRSDC, one year of lawful residence in Canada as a foreign student or worker, or at least one year of experience in one of 38 designated occupations.
An obvious question arises: What happens to a person who meets all of these qualifications but who applied before Feb. 28, perhaps years before?
Logic suggests that his application would be processed ahead of those who applied later with the same qualifications. However, as remarkable as it may seem, the word from some of my colleagues is that this may not be the case at all. It seems that a strict reading of the minister’s instructions of Nov. 28 excludes these cases for the sole reason that they were received prior to Feb. 28.
It may be too early to tell if CIC will actually interpret the instructions in this manner. However, if it does, we will have a system that treats people who applied first in an inferior way to those with the same qualities who applied later. That would mean that those who have been waiting for years, but who incidentally have the very qualities we are now seeking, will have to submit a second application just so that it post-dates Feb. 28. Of course, a second processing fee will be expected.
We have come to expect a certain amount of inefficiency and unfairness in our immigration system. However, now we may need to learn to deal with sheer wackiness.
On another note, the minister has now, for the first time ever, placed the Federal Skilled Worker program beyond the reach of the humanitarian and compassionate provisions of Canada’s immigration legislation. These provisions have long applied to all categories of immigration to this country. If a person wished to live here permanently but could not, for whatever reason, comply with one of our many requirements, he/she could ask the minister for an exemption from that provision provided that sufficient humanitarian and compassionates grounds exist. The skilled worker category is now the first immigration category, and possibly not the last, that will have no such flexibility whatsoever regardless of how compelling the humanitarian considerations may be.
Not such a great start for our new immigration minister, Jason Kenney.

burmanone

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The 'effortless peace' of Canadian multiculturalism

Post  burmanone on Tue Mar 10, 2009 12:16 pm

Joseph and Alex have been best friends for many years.

Joseph was born here in Canada. His parents are of Christian-Lebanese descent.

Alex was born in India to traditional Sikh parents who immigrated here when he was just a boy.

Their backgrounds are as different as their personalities. Joe is the consummate professional… cool, calm, organized … and is always sporting an infectious smile. Alex on the other hand has a mind that simply races as if it were in Formula One. His ideas and words flow a mile a minute.

Joe and Alex worked together in a computer company that used to look after my law firm's computer network. When that company folded, they struck it out on their own as partners. I didn’t hesitate in being amongst the first to give them my business. Since launching Jolera in 2001, the guys grew their venture to become the 49th fastest-growing company in Canada.
As if these two didn’t do absolutely everything together, they both became engaged right at about the same time. I felt honoured to be invited, along with my wife, to Alex’s wedding last Saturday night.

Monica and I arrived at the festivities a bit late since we had to await the conclusion of the Jewish Sabbath. Although Joseph was busy with his duties as master of ceremonies he nonetheless made sure to guard our seats at his table. He and his sisters made every effort to find something kosher for my wife and me to eat.
Sitting next to us was a mixed race couple (he’s black, she’s white) who have been married for about 20 years, much like Monica and I. My wife, who is of Hungarian and Polish parents, spent the night chatting with them and sharing funny stories about the challenges of raising daughters into their teenage years.
The band was tremendous. They played some of my favourites; James Brown, Stevie Wonder and the like. When they put their instruments down, an Indian drummer leapt out in front of the stage beating both sides of the traditional drum hanging from his neck. Immediately, men and boys sporting turbans of every colour exploded onto the dance floor with their hands and wrists held high in a twitching rhythmic manner. I quickly jumped in with both Moroccan feet trying to catch the unfamiliar but beautiful beat of their traditional Indian music.

As for Alex and his beautiful bride, Aman, they just looked so much in love.

Of all the speeches given that night, I remember most that of Alex’s mom. She talked about how she and her husband decided to leave their birthplace, India, to come to Canada, not for their own sake but for that of their children. When I was young, I heard this sentiment from my own parents and more recently from many of my clients over the years.

Alex’s mom recounted that young Alex was embarrassed about her wearing a sari in public when she dropped him off at elementary school. He was afraid that his friends would think that they had just “gotten off the boat.” She said that she was proud that, as an adult, he chose a bride who, although modern, was sufficiently steeped in her own culture to wear a sari for her wedding ceremony.
As an immigration lawyer, I have never viewed my role as a pitchman for Canada. If people choose, on their own, to live here I will simply help them make it happen.
But as I looked at the scene around me I couldn’t help but feel so proud of my adopted country and the peace, joy, harmony, tolerance and prosperity that we have cultivated together in this vast and chilly piece of the planet.
While basking in the warmth of this celebration, I recalled how I spent the weekend before -- lighting candles at a memorial in Mississauga commemorating the victims of the recent terrorist attacks, a world away in Mumbai, which claimed more than 160 innocent lives.
While some of our world leaders wage wars to achieve peace, and while others draft lofty accords in hopes of achieving amity, at a banquet room last week in the lower level of the Wyndham Garden Hotel, there was no such struggle.
Wedding guests of every major faith, colour, and ethnicity gathered effortlessly on a peaceful, wintery Canadian night to celebrate the union of two young people in love.
I have no doubt that such scenes play themselves out every day all over this country. We hardly even take notice.
Yet, this is why this country is so great and why so many people simply want to live here.
May we Canadians enjoy this effortless peace during this holiday season, now and for always, and may we stand as a source of inspiration for our friends around the world who simply want to live in peace.

Happy holidays to all.

burmanone

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To predict the future of Canadian immigration policy, look to the U.S.

Post  burmanone on Tue Mar 10, 2009 12:19 pm

Whenever a new minister of immigration is appointed in Canada, the pundits pull out the tea leaves in search of a glimpse into the future of Canadian immigration policy.

I, on the other hand, don’t really bother much.

The truth is that Canadian immigration ministers rarely exercise any significant personal influence on our immigration policy. They rarely have any immigration experience whatsoever or any publicly known positions on immigration policy prior to assuming responsibility for this portfolio.
Even if they did, they are not free to exercise their own will. They are but one voice in cabinet and take their direction, not from their conscience, but from the prime minister's office. In any event, they are rarely around long enough to actually do anything of substance before the revolving door to CIC’s national headquarters spins around and smacks them on the behind in the opposite direction.
Since February 2006, when Stephen Harper became prime minister of Canada, he has named not one, not two, but three immigration ministers. Monte Solberg lasted 11 months, and Diane Finley lasted 22 months before being replaced on Oct. 30th by Jason Kenney.
Both Solberg and Finley were tightly managed by the PMO and neither articulated anything remotely bold or creative in respect of an immigration program, which just about everybody agrees is sorely in need of major repair.
This past week, Kenney offered no profound insight into where we may be headed. All he said was “I look forward to the privilege of serving as Canada’s Minister of Citizenship, Immigration and Multiculturalism as we continue our commitment to reuniting families, to maintaining our humanitarian obligations to refugees, and to supporting Canada’s economy.”
As Jerry Seinfeld might have said “Yadda, yadda, yadda”.
What exactly does Kenney plan to do, if anything, about a backlog of close to 900,000 applications for permanent residence? What about the 500,000 to 1,000,000 undocumented workers in Canada? What are we going to do with them? What are we going to do about our selection system in the face of a looming worldwide recession? Are we going to continue importing the worlds “best and brightest” so that we can seat them behind the wheel of a downtown Toronto cab?
I doubt we will catch any real insight from Kenney, who will be reading closely from his prime minister’s unpublished script.
As for me, I will be looking south of the border for some glimpse of our immigration future.
Since 9/11, the U.S. administration has expressed little stomach for the adoption of any progressive immigration reforms of any kind notwithstanding many objective reasons to act. The White House needed to be seen as "tough" – and not necessarily “smart” - on immigration. Under these circumstances, Canada would not dare risk being seen as “soft” on immigration.
But now our American friends have elected a bold, creative and smart new leader in Barack Obama.
He has a huge mandate, an unprecedented approval rating for any president-elect, and the “ethnic vote."
With respect to immigration he has articulated three basic principles.
First, he wants to secure the U.S. borders to stem the 500,000 or so new illegal immigrants to his country each year.
Second, he intends to crack down on employers who hire illegals.
Third, he intends to create “a pathway to citizenship” for the approximately 12 million people that are already in the United States. Obama concluded wisely that “the notion that we are going to round up 12 million people is unrealistic”.
In the post-9/11 world, Canada could not even dream of an amnesty program for its own illegals even if it was felt to be in our national interest.
If under Obama’s leadership, the U.S. goes in that direction, it will pave the way for our own government to do the same. Perhaps we will follow up on some other much needed immigration reforms.
In my view, if you want to see where Canada might be headed, follow Obama…not Kenney.

burmanone

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Plenty of questions when sponsoring a common-law partner

Post  burmanone on Tue Mar 10, 2009 12:21 pm

Q. I am a Canadian citizen residing in Toronto and am engaged to a person who doesn't have legal status in Canada. He's never been convicted of a crime and he doesn't have any medical problems. We've been in this relationship for about three years. Now it's been a year that we have shared the same bank account and the same apartment. We intend to get married and start a family together since we love and respect each other.



I read on www.cic.gc.ca that “you can apply as a sponsor if your spouse, common-law or conjugal partner, or accompanying dependent children live with you in Canada, even if they do not have legal status in Canada. However, all the other requirements must be met.”

Can I sponsor him and complete the sponsorship process while he's in Canada without him having to return to his country of origin?

Thanks a lot and God bless.

A. You definitely can sponsor him from within Canada and without him having to leave the country. However, there are a few factors to consider.

Firstly, you can’t sponsor a “fiancée,” but you can sponsor a common law partner with whom you have cohabited in a conjugal relationship for at least one year. (See my most recent column in which I described what you will have to prove to qualify as such.) Since you have lived together in your apartment for one year, you may qualify if you meet all the other conditions.

Secondly, since your fiancée is here illegally, he has shown a strong willingness to stay in Canada since he is willing to break Canadian law in order to remain here. This will definitely be a factor in the mind of the officer who will have to decide whether he is staying in Canada to be with you or whether he is with you so he can stay in Canada.

Thirdly, cases processed in Canada can be quick (i.e. one of our clients who we filed for in April, 2008 is scheduled to be landed next week). However, if CIC decides to interview your fiancée, then it will definitely take longer -- more than a year depending on how busy your local CIC is.

Your fiancé is more likely to be referred to an interview due to his unlawful status here. If an interview is scheduled, your application may take longer inland than it would take overseas, again depending on the processing timeframes of the visa post responsible for your fiancée’s country of nationality.

Finally, there is always a chance, usually small, that your fiancé could be detained by immigration authorities. This is not likely if your fiancé merely overstayed his status here.

However, if he was known to be here by immigration authorities and was asked to leave but didn’t, the chances of arrest are higher. Immigration officials will have to decide if he is a “flight risk” even though he has come forward and identified himself and his whereabouts.

I would recommend that you see an experienced immigration professional for a consultation so that you can determine whether or not you want to go at it on your own or with hired help.

burmanone

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Living together is not enough for “common law” status

Post  burmanone on Tue Mar 10, 2009 12:24 pm

Q: I just heard today, that getting landed immigration status within Canada through marriage is not really necessary anymore. I heard that if the couple just lives together for a year, they would be considered as “common-law” and immigration (officials) would accept this for landed immigrant status. Is this really true?

A: This is true…sort of.

It is true that in June 2002 Canadian citizens and permanent residents were granted the right to sponsor their “common law partners”. It is also true that these cases can now be processed from within Canada.
However, where you might be going wrong is when you say that they “just” have to live together for a year. If this were true that would mean that we can sponsor someone who is nothing more to us than a roommate. This is not so.
In order for two people to be considered common law partners they must be in a “conjugal relationship”. The fact that they are having “conjugal” i.e. sexual relations is also not enough. It doesn’t matter if they are in a same-sex or opposite-sex relationship.
CIC expects to see sufficient proof that they have a mutual commitment to a shared life… i.e. “trying out” a life together is not enough. Each must already be committed to a life together. Accordingly, they can’t be simultaneously committed to someone else. They must be committed to sexual exclusivity. They must be physically, emotionally, financially and socially interdependent on one another. The relationship must be permanent, genuine and continuing. They must present themselves as a couple and be perceived by others as such.
In other words it’s like they’re married…but without a certificate.
You may be surprised to know that people can qualify as common law partners even when they are still married to someone else. However, they must prove that their marriage has broken down and that they have lived separate and apart from their spouse for a sufficient enough time to establish a one-year common-law relationship with their current partner.
In certain circumstances, after the one year period of cohabitation has been established, the partners may live apart for some time without legally breaking their cohabitation. If they are separated due to armed conflict, illness of a family member, or for employment or education-related reasons etc, they can still be viewed as living common law. However, one would expect to see evidence that they remain together through visits, correspondence, and telephone calls.
Finally, it’s possible to be considered “common law” even where the couple has not cohabited. If they are committed to each other as described above but are unable to cohabit due to persecution or any form of penal control, then they will be considered to be “common law partners” nonetheless.
So you see, living together may not be enough to qualify as a common law partner whereas the absence of a shared roof may not disqualify a couple from being viewed as such.
Interesting, huh?
lol!

burmanone

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Fourteen year old sister not “family”

Post  burmanone on Tue Mar 10, 2009 12:26 pm

Q: My question is regarding my 14 year old sister and my ability to sponsor her. I am a Canadian citizen but my sister was born abroad. We do not share the same father. I have been living in Toronto for the past several years and I would like to give her the same opportunity. Am I able to sponsor her if we share different fathers? How do I go about this process?

A: Canadian citizens and permanent residents can sponsor their relatives from abroad if they are included in our definition of the “family class”.

We can sponsor our parents and our grandparents.
We can sponsor our same-sex or opposite-sex spouses, common law partners, and conjugal partners.
We can sponsor our children, as long as they are considered “dependent children” (i.e. under 22, or over 22 if still in school, etc). We can even sponsor a child we intend to adopt.
We cannot, however, sponsor our brothers or sisters unless they are under 18, orphaned, unmarried, and not in a common law relationship.
I assume that one of your sister’s parents is still alive since you didn’t say that she was alone abroad. If she is not orphaned, you cannot sponsor her regardless of whether or not you share the same father.
If you adopt her the application could be refused if the reviewing officer were to conclude that the adoption was primarily intended to get her immigration status here. A humanitarian application is unlikely to be successful unless there is some unique hardship that is being suffered by you or your sister beyond that which everyone else in these circumstances might face.
Nonetheless, there may be two possible ways to become reunited with your sister here.
First, if your mom is not a Canadian citizen or permanent resident, then you can sponsor your mom and she can include your sister as her dependent child. This route will likely take about 33-44 months or more to complete.
Second, if your mom or your sister’s dad is a Canadian citizen or permanent citizen, either of them can sponsor her as a dependent child. This will take about 6-15 months.
I find it interesting that a man or a woman with whom I might be living with in a committed relationship for one year is considered a member of the “family” class even if we do not get married or intend to do so. Whereas, a child who is my natural brother or sister with whom I share the same blood is not considered part of the “family” class regardless of my ability and willingness to support them.
For most people, blood is considered thicker than water. For better or for worse, our immigration laws define our collective Canadian family values differently.

burmanone

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Re: ႈImmigration ဆိုင္ရာမ်ား

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