Archives for May 1999

Q. I will be attending my interview in early May, I am worrying about my employer’s reference letter. The Company won’t write me letter “TO WHOM IT MAY CONCERN”, the Company has a policy that every letter must state recipient’s address and the purpose clearly, I don’t want the Company know I am applying Canadian P.R., so I ask them to write me this kind of reference letter, the recipient’s name is not the Immigration Department, and purpose is something like “Application for Title of XXX”. Could anyone tell me whether this letter is OK or not for my interview, will the immigration will ask me regarding the letter? I also have some letters from the Company which can prove that I have been with the Company, and all the pay slips from my current employer.

Answer: The title to which the letter is addressed is not an issue. In many cases, it is preferable for an applicant’s current employer to remain unaware of the individual’s immigration plans. In such a case, substitute documentation may be used. In this case, you can ask that the letter be addressed as indicated. as long as the content is otherwise as required, the title should not be an issue.

Q. If an individual applies for immigration through a quicker visa office (i.e., Buffalo) and requests an interview waiver, what if visa waiver is not granted; can he move his interview to a local visa office in that situation because he may not get US visa to come and take the interview in Buffalo.

Answer: Visa offices grant interview waivers on the basis of their own discretion, and not requests for such. In this case, a selection
interview is virtually guaranteed. If he could not attend the interview in the USA, the application would have to be transferred to a location at which he could attend.

[Comment: Current policy worldwide makes the likelihood of interview waivers for offshore applications very low, with the exception of only very few candidates. An offshore application is any case which does not fall within the jurisdiction of the visa office to which the application is submitted.]

The Quebec Government recently announced that the number of Quebec Investor applications submitted since the fall of 1998 has increased dramatically, particularly from Asian applicants.

The volume of applications reached an all-time high in the month of March 1999, when over 2,000 Investor files were submitted – the vast majority of them from Asia. On April 1, 1999, the minimum investment amount and net worth requirement under the Quebec Program were increased from $350,000 to $400,000 and from $500,000 to $800,000, respectively. Most observers cite these changes in the Quebec Program as the main explanation for the spectacularly high volume of Investor files submitted in the period leading up to April 1, 1999.

The Quebec Government is currently looking into setting up appropriate procedures to effectively deal with this tremendous influx of new files within a reasonable time frame. The new procedures will be aimed at the Quebec immigration office located in Hong Kong, given the overwhelming proportion of Asia applicants.

The Minister has confirmed that Acknowledgments of Receipts will be sent out to all applicants or their representatives shortly. To the extent that any Acknowledgements of Receipt have already been issued indicating an estimated time frame during which the particular file is likely to be processed, the Government wishes all affected applicants to be aware that such estimates are just that, and that the actual time frames during which recently-submitted Investor files will be processed will only become apparent once the final decisions regarding the aforementioned processing procedures are put into place. These decisions should be made soon.

The Quebec Government is aware that many of the Investor files submitted towards the end of March 1999 were, to varying extents, incomplete. It is up to the applicants and their representatives to ensure that any missing documents are submitted. However, applicants and their representatives are advised not to submit any outstanding documentation until an Acknowledgment of Receipt has been issued, as the Acknowledgment of Receipt indicates each applicant’s particular file number. All correspondence with the Quebec authorities must refer to this file number.

Visa officer must advise of specific concerns: In the recent case of Hussain v. Canada (Minister of Citizenship & Immigration), the applicant, a citizen of India, had applied for a Canadian permanent resident visa under the Skilled Worker category.

The applicant’s intended occupation in Canada was that of “Executive Secretary” and at his selection interview, the visa officer questioned the applicant as to his employment duties in order to determine whether they constituted the experience necessary to qualify as an “Executive Secretary” pursuant to the immigration regulations in force at the time of the application.

The visa officer refused the application on the grounds that the applicant did not have the experience required to qualify as an “Executive Secretary,” but rather only as a “Secretary.” The effect of this determination was that the applicant received a lesser number of “points” as a “Secretary,” thereby not attaining the minimum “points” required to succeed in his application.

The applicant appealed the decision of the visa officer and, at the trial, one obviously important issue was the difference between the occupations of “Executive Secretary” and “Secretary,” and under which occupation the previous employment experience of the applicant fell. Closely related to this issue was the question as to whether the visa officer had provided the applicant with a “fair” opportunity to convince the visa officer that his work experience did, in fact, qualify him as an “Executive Secretary.”

In ruling in favour of the applicant, the judge held that the visa officer had misapplied the work experience criteria required to qualify as an “Executive Secretary.” More significantly, however, the judge also ruled that the visa officer did not communicate to the applicant her concerns that the applicant’s experience would only qualify him as a “Secretary”, as opposed to an “Executive Secretary.” The judge held that by not affording the applicant a reasonable opportunity to clarify and expand on the nature of his duties, the visa officer had failed to satisfy the duty of procedural fairness owed to the applicant.

Furthermore, the judge ruled that the visa officer could not claim to have satisfied this duty of fairness by simply asking the applicant, at the end of the interview, whether the applicant had “anything else to add.” The applicant must be advised of the specific concerns of the visa officer, otherwise the applicant will not have a reasonable opportunity to disabuse the visa officer of these concerns.

Given that the determination as to whether the applicant qualified as a “Secretary” or “Executive Secretary” was very fact-specific, the visa officer clearly owed the applicant a reasonable opportunity to present a factual account of the applicant’s experience. Had the visa officer expressed her specific concerns, the applicant could have at least had a reasonable opportunity to convince the visa officer otherwise.

Determining Residence for Citizenship Purposes: In the recent case of Ni Chih Wei v. Canada (Minister of Citizenship & Immigration), the appellant and his family landed in Quebec in August 1993, where the family has been living ever since. The appellant’s wife and children subsequently became Canadian citizens, but because of the appellant’s overseas business obligations, Canadian citizenship was denied him.

The appellant appealed this denial, arguing that his import-export business required him to travel abroad – mainly to Taiwan. Although the appellant was required to spend the majority of his time outside of Canada, the court nonetheless held that he should be granted Canadian citizenship.

In coming to its decision, the Court reaffirmed the well-established principle that residency in Canada for the purposes of citizenship does not imply full-time physical presence. Furthermore, the place of residence is not where a person works but rather where he or she returns to after work. In this case, the appellant had clearly and definitively established a home in Canada, constantly returning there after his trips abroad, with the transparent intention of maintaining permanent roots in Canada.

The Court held that the most eloquent of the indicia of residency is the permanent establishment of a person and his family in Canada. Such a person should not be deprived of citizenship merely because he is obliged to earn his livelihood and that of his family by doing business overseas.

A recently released Federal Report sought to determine some of the telling factors that correspond with the economic success of immigrants.

Basing itself on income tax returns submitted by immigrants landed between 1980 and 1995 and over the age of 18, the report indicated that individuals who spoke both official languages at landing reported significantly higher earnings on average than most other immigrants. Furthermore, those who had been in Canada for seven years or more tend to report higher employment earnings, and lower incidences of welfare and Unemployment Insurance benefits.

Similar findings were reported for immigrants who spoke only English (and not French) at landing.

Nationally, individuals who spoke only French (and not English) at landing tended to be less successful economically. However, the difference between French and English speaking immigrants is most likely distorted due to the fact that most French-speaking immigrants settle in Quebec, while most English-speaking immigrants settle outside of Quebec. For example, the difference in earnings between French and English speaking immigrants within the province of Quebec is not as great as the difference among these two groups on a national basis. In addition, within the province of Quebec itself, French-speaking immigrants are more successful than those who speak neither official language.

The Government promises to undertake additional studies to better understand the role that language plays in predicting immigrant economic success.