Residency Obligations for Permanent Residents

Next month I will be speaking at the Canadian Bar Association’s National Immigration Law Section Annual Conference. Being asked to speak is an honour, however it comes with the requirement to submit a paper.  Finding time to research and write was an issue – much of the paper was written between basketball games in the hallway of a high school in Markham, Ontario, where my son was playing in a weekend tournament.

The topic, however, is one that I often get inquiries about. All sorts of things happen in life, and permanent residents who thought they were settling in Canada permanently sometimes find that they have not met the required residency obligation, due to travel or relocation outside of the country.  Where there are sufficient humanitarian and compassionate reasons for their absences, the breach of the residency obligation may be overcome.  However, for those who have simply chosen to take up more lucrative employment opportunities outside of Canada, loss of permanent residency is the likely outcome.  

There are exceptions to the physical presence obligation. For example, those residing outside of Canada with a Canadian spouse, and those working for certain Canadian businesses may maintain their permanent resident statuses. 

It is important to note that re-entering Canada without a valid permanent residence card can be very problematic, especially now that most visa-exempt nationals must have electronic travel authorizations (“eTA’s”) in advance.  Since permanent residents cannot apply for an eTA, without a valid permanent resident card, they will find themselves unable to board a plane flying to Canada.  Note US citizens do not need an eTA to fly to Canada. 

You can read my conference paper here.

 

Never a Dull Moment

April 2017

 

The joy of practicing immigration law is that there is always something new. A few things to let you know about this month:

 

Express Entry draw with lowest score to date – The score in todays’ draw was 423, lower than the draw on April 5th, which at 431 was at that point was the lowest ever. 

 

New Express Entry Points – as of June 6th, Express Entry applicants with siblings in Canada will get 15 additional points.  New language ability points will also be given where individuals have taken both an English and French language test:

  • 15 additional points for French test results of Canadian Language Benchmark 7 or higher, with English levels of CLB 4 or lower

  • 30 additional points for CLB 7 or higher in French, along with CLB 5 or higher in English

As of June 6th, applicants will also no longer be required to register with the Job Bank. 

 

Data released about the composition of the Express Entry pool – as of April 7, 2017, this is the distribution of applicants in the pool:

Comprehensive Ranking System                     Number of Candidates

Score Range   

601-1200                                                         49

451-600                                                           212

401-450                                                           9,878

441-450           52

431-440           86

421-430           2,973

411-420           3,157

401-410           3,610

351-400                                                           21,118

391-400           3,292

381-390           4,020

371-380           4,380

361-370           4,603

351-360           4,823

301-350           15,608

0-300                                                               2,789

Total                                                                                        49,654

 

Changes to the Citizenship Act – many of my clients are eagerly awaiting changes to the Citizenship Act, which will allows for a shorter residency period before being eligible to apply for citizenship.  Passage of the changes was slowed when the Senate proposed amendments to the Act that allow for hearing before an individual is stripped of citizenship.  These changes were passed on April 4th.  You can read the amendments here.  This article will help you determine if you will meet the residency requirements under the new changes.

 

Parent/Grandparent Lottery – we are still waiting for the government to make its sections from those who registered to be randomly selected for the opportunity to make an application. 

 

Ontario Immigration Nomination Program a bit of a mess - On February 21, Ontario reopened the Express Entry Human Capital Priorities Stream, the International Masters Graduate Stream, and the International PhD Graduate Stream.  At the same time, the province also launched an online application system for these streams.  Chaos ensued.  There was unprecedented application volume demand, crashing the website and causing error messages, and the 7 day deadline had to be extended to 14 days.  The Master’s and PhD streams reached their intake limits within three days. 

The Human Capital Priorities Stream has once again reopened, and Notifications of Interest are being sent out between April 10th and 14th.  Two clients at our office received Notifications of Interest this week.  However, one had sufficient points and received an Invitation to Apply today.  She will not need the provincial nomination.  With Express Entry draws in the 420’s, less applicants with scores in the 400’s will need this program. 

For this round of NOIs, the program targeted candidates in high-demand skilled trades in the construction sector, including carpenters, electricians and tile setters.  However, I’m not sure how many individuals from those occupations would actually qualify for the Human Capital Priorities Class, since one of the requirements is having a university degree.  Most people don’t go to university to become tile setters.

 

Trump, the Safe Third Party Agreement, and Canada’s role in the world refugee crisis – In the media, what we’re hearing about is Trump, the Safe Third Party Agreement, and what Canada’s role should be in the refugee crisis the world finds itself in.  These are the two best media posts we’ve read this month:

 

The Ungrateful Refugee: ‘We Have No Debt to Repay’ https://www.theguardian.com/world/2017/apr/04/dina-nayeri-ungrateful-refugee

The author of the above article reminds us that refugees are much more then just the single identity the media and society seems to assign to them. Instead, they are people with their own dreams, and their successes should not be overshadowed by this one aspect of their lives. By simplifying their experiences, we allow stereotypes to exist.

My associate recently attended a legal clinic held by the Refugee Sponsorship Support Program. She was running late and took an Uber, and to her delight, her driver was a recently arrived Syrian gentleman. He told her about the English classes he took every day, and how his teacher was happy with his improvement since he’d been practising with his customers. This gentleman was an already active member of Canadian society, and clearly hoped to be independent as soon as possible.

Once she got to the clinic, my associate met even more incredible refugees from Syria. While talking to the daughter of the family, Meriam (picture below), my associate couldn’t help but be amazed. Meriam was telling her about how she already had 6 job interviews at Bayshore Shopping Centre. She said she is going to work 2 jobs until she can get back to school. She’s also already applied to continue her studies at to a number of universities. Her long-term dream is to get a great education, and when the civil war is over, use her knowledge to help rebuild her home country. She also eagerly asked my associate whether she knew of any organizations she could volunteer with to assist newly resettled refugees.

Meriam Tayar, a former resident of Aleppo now living in Canada


My associate was speechless. This young lady only arrived this past October and she sounded like she’s lived here her whole life!

Sharing these stories are important, because they’re proof that refugees are so much more then the impersonal descriptions we see of them in the news. Whether they are just learning English, or they are jumping right back into their university studies, we have to remember that they are unique individuals whose goals are similar to ours. In fact, their goals are often even more impressive, because they’ve gone through a great deal hardship just to get to where many of us “regular” Canadians start out from. 
 
“After the Crossing: Refugees in Canada” – The Fifth Estate http://www.cbc.ca/fifth/episodes/2016-2017/after-the-crossing-refugees-in-canada


This broadcast tells the story of what happens to asylum seekers once they get to Canada. These are different cases then resettled refugees such as Meriam, because they still need to go through the refugee determination process after they arrive. They need prove that they were forced to leave their home country due to persecution based on race, religion, nationality, membership of a particular social group or political opinion. They also need to prove that their home countries would not be able to protect them. Until they are able to do this, they are considered asylum seekers and do not have the benefit of knowing what their futures will hold.

One part of the above broadcast tells the story of a Turkish man caught in backlog, who has waited almost 5 years without a hearing. In our office, we have two ‘legacy’ refugee claimants waiting for hearings before the Refugee Board.  One fled his country when his daughter was only a toddler, and unfortunately, he would be a stranger to her now. 

It is admirable that Canada has created the opportunity to sponsor refugees for resettlement. It is important to remember, however, that Canada must be must also deal with the cases of people who have been in limbo for half a decade. They have hopes and dreams too, and they cannot get started on them until they know they will be able to stay. 

Misconceptions about Express Entry

March 2017

I do a lot of consultation appointments with individuals who want to know if they are eligible to immigrate to Canada through Express Entry.

The next question I’m always asked is ‘how long will it take until I get my permanent residency?’

My answer to the question of their eligibility is often, ‘yes, but maybe no’. As to the question about how long it will take, I answer ‘somewhere between a year and never’.

Here are the explanations I give:

Question 1 - In order to apply to immigrate to Canada under Express Entry, you must first be eligible under one of Canada’s immigration programs, such as the Canadian Experience Class or the Federal Skilled Worker Program.  Once you are found to have met the minimum eligibility criteria for one of these programs, you will be placed in a pool of applicants and given a ranking based on your personal characteristics. This includes your age, language ability, education and work experience.  The government of Canada will select the highest-ranked applicants from the pool.

So, while you may be eligible for an immigration program, if your ranking isn’t high enough, you may never be selected. (‘Yes, but maybe no’)

Question 2 – Draws from the Express Entry pool of applicants occur about every two weeks.  If you are highly ranked, you can expect to get invited to apply for permanent residence in the first draw after you submit your profile.  Once invited to apply, you have 90 days to complete the electronic application for permanent residence.  Once it is submitted, the government will likely process your application within 5-6 months, and you will then have some time to settle your affairs and arrive in Canada.  Highly ranked applicants can arrive in Canada about a year after they apply.  Other individuals may be in the pool for several months before getting an invitation to apply.  Those who are not highly ranked may never be invited to apply. (‘Somewhere between a year and never’)

If this wasn’t hard enough to explain, I also have to correct misconceptions. Individuals have often been given information that is outdated or incorrect by well-meaning, but uninformed friends and family members.  Here is some misinformation I have heard in consultation appointments:

If two people are in the pool of applicants and have the same score, the government will select the person who has been in the pool longer – This is incorrect.  If two people have the same score, the government will select both of them.  This is why the number of applicants selected at each draw seems so random.  Let’s say the government wants to invite 2,000 individuals during a draw.  If the top 2,000 individuals in the pool have a score of 500, then 500 will be the minimum score for that draw.  However, it is unlikely that only one person in the pool has a score of 500.  If 163 people have a score of 500, then 2,163 people will be invited to apply for permanent residence.

American citizens get preferential treatment – Ah, no.  The fact that we share a border does not give you any additional Express Entry points.  Also, education completed in the US does not award ‘extra’ points.  This is a point about which I recently informed readers of the Boston Globe.

I don’t need an English language test because I’m English – You Brits may have invented the language, but even those from England need an IELTS result to apply for Express Entry.  All applicants need a language test (IELTS, CELPIP, or for French, TEF), regardless of whether their first language is English or their post-secondary education was in English.

I can’t apply until I have sufficient bank funds – If you qualify for the Canadian Experience Class, you don’t need to have any money in the bank, even though the electronic application for permanent residence isn’t yet smart enough to leave out the upload link asking for your bank statements.

If I have experience in a certain occupation, I can (or cannot) apply – There is no longer a list of ‘occupations in demand’ under the Federal Skilled Worker Program. There also isn’t a list of excluded occupations under the Canadian Experience Class.

If I’m a tradesperson, I must apply through the Federal Skilled Trades Program – If you have NOC Level B experience (which many tradespeople do), your application can be assessed under the Federal Skilled Worker Program.  If this is the case, you do not need a LMIA or a certificate of qualification from a Canadian province or territory to apply.

I can get a ‘regular’ educational credential assessment if I’m a doctor or pharmacist – If your work experience is in NOC 3111 ‘specialist physician’ or NOC 3112 ‘general practitioner/family physician’, then your educational credential assessment must come from the Medical Council of Canada. If your work experience is as a NOC 3131 ‘pharmacist’, then your educational credential assessment must come from the Pharmacy Examining Board of Canada. If you have a medical or pharmacy degree but your work experience is not in NOC 3111, 3112 or 3131 (for example, if you are a professor of medicine or a research scientist in the medical or pharmaceutical fields), then you can get a ‘regular’ educational credential assessment.

Self-employment doesn’t ‘count’ as work experience – This is true for the Canadian Experience Class and for Canadian experience points.  However, self-employed work is eligible for the Federal Skilled Worker program, and, if done outside of Canada, for foreign work experience points.  In a gaping hole in the Ministerial Instructions that I’m hoping the government will address, self-employed work in Canada is not eligible for any points at all – not as in-Canada experience, nor as foreign work experience. 

When comes to Express Entry, the devil is in the detail. 

Refugee Lives and Political Whim: On Trump, Trudeau, and the refugees they seek to shut out

February 2017

Incredulously, I watched a video of a crowd of hundreds of protesters chanting, ‘Let them see their lawyers NOW!’ The video was taken at a US airport over this past weekend.  Photographs taken in that same airport showed lawyers sitting in groups on the floor, hunched over their computers. They were drafting emergency court petitions in support of the individuals who were detained when their flights arrived – people who had been mid-air when Donald Trump’s Executive Order banned the entry into the US of individuals from seven predominately Muslim populated countries.  I have never been as proud of my fellow immigration lawyers and human rights activists as I was this past weekend.  And I have never felt more grateful for the rule of law, when those court petitions were successful.

Express Entry Missing out on Selecting Skilled Tradespersons

January 2017

My daughter just finished her first semester at the University of Ottawa. As a first year business student, she had no elective courses.  Her best mark after her first semester?  Philosophy.  Her worst?  Economics.  It seems to me that it should be the other way around.  But the problem is that although she’d probably do better in a social sciences or humanities program, she wants a job when she graduates.  So she has chosen a program of study that she feels will lead to job opportunities. 

Faster processing times, simpler application forms for spousal sponsorships: A welcome announcement today for Canadians wishing to bring their spouses to Canada

December 2016

An early Christmas present arrived today from Immigration Canada.

In a major policy announcement, the government streamlined the methods by which it processes spousal sponsorship applications. Highlights of today’s announcements include:

  • Processing times for the majority of applications will be 12 months. This will apply to future applications, and also those already submitted.
  • New forms will be available as of December 15th. The same forms will be used for both inside and outside-Canada applicants. Only one questionnaire/sponsorship evaluation form will be needed. Old forms will be accepted until the end of January.
  • The Instruction Guide will be simplified, and shortened, to make it easier to read.
  • The Background/Declaration form (Schedule A) will not be required until requested.
  • Medical examinations and police certificates will not be provided up front, but later when requested.
  • The temporary policy allowing inland spousal applicants to receive an open work permit has been extended for another year.