CILF Newsletter – Early Winter 2018
Today’s topics:
2. New DUI laws in effect December 18, 2018 and the immigration implications
3. Phase Two of Biometrics Rolls Out on December 31, 2018
4. CPTPP in effect December 31, 2018; Transpacific Partnership Immigration Provisions
5. Parent and Grandparent Pool to open January 2018
6. International Experience Category Work Permits – Pool Now Open
7. Travel plans for the holidays? Make sure you are prepared
8. Electronic devices
9. On site or virtual immigration seminars
On December 21, 2018, Corporate Immigration Law Firm – Caruso Guberman Appleby will be packing up and moving! Our new address is 5 Church Street, Toronto, Ontario, M5E 1M2. Our phone numbers, emails and fax will remain the same. We look forward to meeting with you in our new space.
Canada’s Criminal Code is changing on December 18, 2018 with respect to driving under the influence of alcohol/drugs. The maximum sentence for alcohol- and/or drug-impaired driving will increase from 5 years to 10 years of imprisonment. This will cause this offence to be considered “serious criminality” instead of “criminality” under Canada’s immigration law.
It remains unclear what the implications will be for persons convicted of a DUI prior to December 18, 2018.
The National Immigration Law Section of the Canadian Bar Association has asked the Minister of Immigration to consider how the change in maximum sentence will affect foreign nationals and permanent residents in and outside Canada. No changes to immigration policy tempering the impact of the December 18 change have been announced as of yet. Future issues of the Corporate Immigration Law Firm Newsletter will provide up dates as they become available.
Since July 31, 2018, citizens of countries in Europe, the Middle East and Africa have been providing biometrics in order to enter Canada. On December 31, 2018, citizens of countries in Asia, Asia Pacific and the Americas will also be required to provide biometrics in order to enter Canada. The only exception to this is for American citizens. Otherwise, all travellers who are visiting, studying, working or immigrating to Canada will provide fingerprints and a photo. For individuals who are visa-exempt, biometrics will be provided upon arrival at the port of entry in Canada. For those who require visas, biometric collection points are located around the world.
4. Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) in effect December 31, 2018; Trans-Pacific Partnership Immigration Provisions
The CPTPP is a new free trade agreement between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, making it one of the largest free trade agreements in the world. The provisions pertaining to Temporary Entry for Business Persons include categories that cover: Business Visitors, Short Term Business Visitors, Service Sales Persons, Intra-Corporate Transferees, Investors, Independent Executives, and Persons Responsible for Setting up a Commercial Presence, Professionals and Technicians.
Among the noteworthy provisions, is the introduction of an Intra-Corporate Transferee category for management trainees on professional development. In additional, the categories of Professionals and Technicians that qualify vary depending on the country.
The new agreement is of benefit to those seeking temporary entry to Canada from the signatory countries as it opens up other options beyond those currently available.
For the 2019 season, Immigration, Refugees and Citizenship Canada (IRCC) has made changes to the Parents/Grandparents sponsorship selection process. Instead of the ‘lottery’ based system employed in the previous three years, this coming year IRCC will select applicants on a first-come first-served basis. It is expected that on January 2, 2018, IRCC’s dedicated parents/grandparents expression of interest webpage will be live where sponsors can complete an Expression of Interest (EOI) in order to be considered for selection. If sponsors submit more than one EOI, the government will select that the most recent EOI. If selected, sponsors will be invited to submit a complete application. Future issues of the Corporate Immigration Law Firm Newsletter will provide an updates with respect to the number of applications selected.
On December 4, 2018, International Experience Canada (IEC), IRCC’s program allowing foreign youth to come to Canada for the purpose of working and travelling, started accepting applications from applicants from 34 different countries worldwide for the 2019 season. Depending on the applicant’s country of origin the program provides the applicant with up to three different categories to qualify under: Working Holiday, Young Professionals and International Co-op Internship.
The 2019 season provides even more applicants between the ages of 18 and 30 (or 35 depending on the applicant’s country of citizenship) with the opportunity to submit their application.
Other changes include opening the program to citizens of Portugal, increasing the participation age of Australian citizens and clarifying that Danish citizens residing in Greenland or the Faroe Islands continue to be eligible.
Late during the 2018 season IRCC had expanded the program selection available to Austrian citizens to include the Working Holiday category and the frequency of participations for citizens of Chile had been increased to two (2) participations.
Have plans to go away over the holidays or this winter. Always be sure to check your documents (well, in advance of leave for the airport!!). Make sure that passports and/or PR cardsfor everyone that will travel with you are valid. This applies to Nexus, too. For those who are on work permits or visas, ensure those are valid too. If you will be travelling alone with a child, be sure to have travel authorization letters from the other parent or parents of the child.
Exercise caution when taking electronic devices across borders. Canada Border Services Agency (CBSA) officers routinely search the electronic devices of individuals entering Canada, both randomly and in a targeted fashion. The courts have not taken a clear position regarding what border officers can and cannot do when searching or seizing an electronic device. Travellers who have refused to provide their passwords have been threatened with arrest and with hindering or obstructing a CBSA officer.
Here are some best practices to keep in mind. The best safeguard against an electronic search is to not carry the data at all when crossing the border. Consider dedicating a device for travel purposes and do not store any sensitive data on it. Remember that deleted data on an electronic device, while not easily accessible by an officer, can likely be retrieved with the use of recovery software. Keep in mind that data stored in the cloud, once accessed by a device, may be stored on the device and accessible without an internet connection. Separate privileged and confidential documents and label them accordingly, and inform the officer conducting the search that you are in possession of sensitive documents.
Corporate Immigration Law Firm is always available to tailor an immigration seminar that addresses the needs of your company. We are happy to visit you at your premises or present virtually. Please contact us to discuss this opportunity.
US Customs and Border Protection Clarifies Position on Canada’s Legalization of Marijuana and Border Crossing
US Customs and Border Protection (USCBP)’s most recent update on the issue of Canada’s legalization of marijuana and border crossing on October 9, 2019 notes that all usual admissibility laws, rules and regulations will continue to be enforced by their officers. USCBP reminds travellers that US Federal Law governs immigration matters, despite certain state laws that have legalized marijuana. As always, anyone seeking entry to the US who is an addict or who is convicted of, admits having committed or admits committing acts constituting essential elements of violating state, US or foreign laws as it pertains to a controlled substance is inadmissible to the US. The update specifies, “A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.“ With the above in mind, consider the purpose of your trip to the US carefully and consult counsel if necessary. The full text of the update is found in the link below: To discuss this matter further, please contact: Joel S. Guberman* at Guberman@cilf.ca or at 416 304 9551. *Certified Specialist, Citizenship & Immigration Law; Barrister & Solicitor (Ont.); Attorney at Law (Mass.)
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HRTO to Employers: It is illegal to exclude candidates for not being eligible to work in Canada on a permanent basis
Some employers ask candidates during the recruitment process whether they are allowed to work in Canada on a permanent basis, to help them identify if a work permit is required, either now or in the future. But is this legal?
Recently, the Human Rights Tribunal of Ontario (HRTO) pronounced itself on this issue in Haseeb v. Imperial Oil Limited, 2018 HRTO 957. Imperial Oil required applicants to confirm at various stages of the application process, both verbally and in writing, whether they were eligible to work in Canada on a permanent basis.
Haseeb applied for an entry level Project Engineer position at Imperial Oil while still a student at McGill University. He knew he would be eligible for an open Post-Graduation Work Permit valid for up to three years upon graduation. Believing that his candidacy would not considered if he was truthful, he advised Imperial Oil throughout the recruitment process that he met their permanence requirement. Imperial Oil was impressed by Haseeb and made him an offer containing a request to provide proof of citizenship or permanent resident status. When he was unable to do so, Imperial Oil withdrew the offer.
Imperial Oil maintained that it withdrew Haseeb’s offer not because he was unable to meet the permanence requirement, but because he misrepresented himself throughout the application process. Imperial Oil also defended its permanence requirement, explaining that while it waived the requirement in certain circumstances, there was no reason to do so for new graduates because (i) they do not have unique skills, (ii) there were plenty of candidates who met the permanence requirement to choose from, and (iii) it invested heavily in new employees and did not want to risk losing their investment in the event the new employee could no longer legally work in Canada.
The HRTO ruled in Haseeb’s favour. It found that Imperial Oil’s permanence requirement is discrimination based on citizenship, since it marked candidates as eligible or ineligible to progress further in the selection process based on their answer. As a result of the ruling, it is confirmed that it is illegal for an Ontario employer to exclude a candidate on the basis that he/she is not eligible to work in Canada on a permanent basis.
Barbara Jo Caruso addresses CBSA flagpoling project and possible legal challenge in the Law Times
Barbara Jo Caruso recently spoke to Law Times about Canada Border Services Agency’s flagpoling pilot project. Please click the link below for the full article.
Canadian Immigration Update – Parental Sponsorship – First Come, First Served
On August 20, 2018, Immigration, Citizenship and Refugees Canada (“IRCC”) announced that the Government of Canada will accept 20,000 applications to sponsor parents and grandparents – far more than the 5,000 allowed in 2014 when the program reopened. The cap for 2018, which has been met, is 17,000.
Despite increases in the quota, there are still far more interested candidates than there are available spots. Over the last two years, IRCC has employed a lottery system whereby sponsors would be randomly selected to apply after completing an Interest to Sponsor form at the beginning of the calendar year.
Starting in 2019, however, the invitations will be distributed based on the order in which IRCC receives the Interest to Sponsor forms – a first-come, first-served system. Individuals who receive invitations to apply must meet various eligibility requirements, including a minimum necessary income requirement.
It remains to be seen whether the online application system will be able to withstand the overwhelming traffic that is sure to result from candidates attempting to submit an Interest to Sponsor form as quickly as possible. Other government portal rollouts in recent years have been fraught with technical difficulties and periods of downtime. We are concerned that technical issues could undermine the fairness of the invitation process.
We expect further updates from IRCC on this topic in the coming months.
CILF is experienced in dealing with IRCC’s online portals and can help you navigate this critical and time-sensitive application. Contact one of our immigration lawyers today for assistance.
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Canadian Immigration Update – Large Monetary Fine for Donkin Mine
Last week the CBC reported that the employer of personnel at the Donkin Mine in Nova Scotia, Kameron Coal, has been slapped with Service Canada’s largest ever monetary penalties for abusing the foreign worker system. In a slight plot twist, the penalties, which include a fine of $54,000 and a one year ban on accessing the foreign worker program (so cannot bring in foreign workers on work permits), were levied for overpaying workers, rather than underpaying or otherwise mistreating workers. Foreign employees in some cases were being paid 120% of what was advertised in Canada before the Labour Market Impact Assessments were approved and foreign workers were permitted to take the positions. The case highlights the importance of following Labour Market Impact Assessment approvals to the letter.
Before a Labour Market Impact Assessment is sought, an employer must advertise the nature of the position, including all its benefits, to Canadians. If no qualified Canadians are willing to take the job, then an employer can seek foreign workers to fill the role – but only on exactly the same terms as were offered to Canadians in the advertising. The reason for this is that if foreign workers are paid more than was advertised to Canadians – the labour market has not been properly tested. Canadians might have come forward if the higher wage had been advertised. The system protects foreign workers from unscrupulous Canadian employers who try to underpay or otherwise take advantage of them, but it also protects the Canadian labour market and is there to ensure that Canadians are offered positions before temporary foreign workers are brought in to fill roles.
Canadian Immigration Update – Canada’s New Biometrics Program
What is it?
Since 2013, applicants from 29 countries already provide biometrics to Immigration, Refugees and Citizenship Canada (IRCC).
Starting July 31, 2018, the Government of Canada is expanding its biometrics program to applicants from Europe, the Middle East and Africa. When applying for a Canadian temporary resident visa, study or work permit, permanent residence or refugee status, biometrics (fingerprints and photo) must be provided.
Beginning on December 31, 2018, the biometrics program will be rolled out for applicants from Asia, Asia Pacific and the Americas.
Applicants will only be required to provide their biometrics once every 10 years in order to facilitate frequent travel to Canada. There are exemptions for certain groups.
During the initial phase, in-Canada applicants will be exempt from the biometrics requirement due to a lack of facilities within Canada and U.S. nationals will not be required to provide their biometrics when applying for a work or study permit.
Who is exempt?
Exemptions will also be made for following groups of individuals:
- Canadian citizens, citizenship applicants (including passport applicants), or existing permanent residents
- Visa-exempt nationals coming to Canada as tourists who hold a valid Electronic Travel Authorization (eTA)
- Children under the age of 14
- Applicants over the age of 79 (there is no upper age exemption for asylum claimants)
- Heads of state and heads of government
- Cabinet ministers and accredited diplomats of other countries and the United Nations, coming to Canada on official business
- U.S. visa holders transiting through Canada
- Refugee claimants or protected persons who have already provided biometrics and are applying for a study or work permit
- Temporary resident applicants who have already provided biometrics in support of a permanent resident application that is still in progress
Is there a government fee?
The costs for an individual applicant associated with providing his/her biometrics are CAD $85. Families applying together will incur a maximum total fee of CAD $170.
Groups of 3 or more performing artists and their staff who apply for work permits at the same time will be facing a maximum total fee of CAD $255
If you or your employees require more information about how these changes will impact you, please contact a member of the professional team at CILF.
Top Immigration Talent Join Forces
Barbara Jo Caruso and Corporate Immigration Law Firm are pleased to welcome respected immigration lawyers Joel S. Guberman and Lainie M. Appleby to our immigration law practice. With offices in Toronto, Ottawa and an affiliate office in Montreal, Joel and Lainie will complement our current legal team by continuing to provide in-depth, sophisticated and bespoke immigration advice to a broad range of clientele.
Joel and Lainie bring many years of Canadian immigration law experience and expertise in US immigration law to our firm. For more information about them, please see their bios linked below.
Joel can be reached at guberman@cilf.ca or at 416-304-9551.
Lainie can be reached at appleby@cilf.ca or at 416-304-9550.
We look forward to assisting you with Canadian and US immigration matters.