Archives for June 2000

Q. The application of myself and my family has been processed, and we are awaiting landing documents. Once approved, can our nanny accompany us to Canada?

Answer: Provisions exist by which you may request inclusion as a “de facto family member.” In our experience, however, applications for such inclusion are often not accepted, and may delay your own application.

A program does exist which allows for the sponsorship of live-in-care-givers by Canadians. The candidate is expected to be resident in the household of the Canadian employer. The candidates would otherwise need to provide

(a) evidence of the equivalent of a Canadian secondary school education;
(b) proof of six moths training in the field OR 12 months prior related experience;
(c) proof of sufficient English or French language abilities;
(d) a valid and subsisting passport;
(e) and a police certificate.

If these needs are met, the application must first be processed through a local Human Resources Development Canada (HRDC) office, where the validity of the offer is verified, and the impact on the local job market assessed. The employer would also be required to obtain a Revenue Canada Taxation number. The Canadian employer may be required to provide evidence that a search for a Canadian candidate had been held, and had failed.

The stages of the application process are, therefore, as follows:

1. Documentation of a search for a Canadian candidate locally by the prospective employer;
2. Application for validation through HRDC;
3. If approved, application for employment authorization under the Live-in-Caregiver program;
4. After two years, application for permanent residence from within Canada for the employee, if he/she so wishes.

Q. I am a citizen of India and recently I settled in Canada as a Permanent Resident. I have a good full time job in Software with a Canadian Company. I need to go to USA for four days to attend a conference. The question is, do I need to obtain any kind of VISA to enter USA?

Answer: Citizens of a commonwealth country (I.e., India) with PR status in Canada are not required to obtain a passport visa to appear at the US port of entry. At the port of entry, an immigration official will determine your eligibility to enter the USA, and the duration of your allowed stay.

When you appear at the port of entry, you should be in possession of documentation regarding the conference, your ties to Canada, and a return ticket, if possible.

Additional information on this topic may be found at the following URL:

http://canadavisa.com/documents/visitor.html

[Comment: Exemption from the requirement to obtain a passport visa does not mean automatic admissibility to the USA. As is the case with any applicant for temporary admission, with or without a visa, an immigration official at the port of entry to the USA is subject to determine admissibility and the duration of such.

Permanent Residents of Canada who are not citizens of a Commonwealth country, and who are not otherwise exempt from obtaining a passport visa, should arrange a visitor visa in advance of appearing at the US port of entry.]

An increase in part-time employment offset a decrease in full-time, leaving employment unchanged in April. The unemployment rate remained at 6.8% for the fifth consecutive month.

Part-time employment increased by an estimated 34,000 in April, while full-time declined by 29,000. However, since April 1999, full-time employment has risen by 3.1% (+364,000), a much stronger gain than the 1.9% (+50,000) for part-time employment.

Total hours worked edged down 0.4% in April. However, hours worked are up 2.9% since April 1999, reflecting robust gains in the number of full-time jobs over this period.

For more information, please visit: (Statistics Canada)

Applicants who apply for a Canadian Immigrant (Permanent Resident) Visa under the “Skilled Worker/Professional” category are assessed according to a “points” system. Under current Federal Selection Criteria, applicants are awarded “units of assessment” for a number of objective factors, such as age, education, occupational background and language ability.

In addition, applicants may be awarded up to a maximum of 10 units of assessment under the somewhat discretionary “Personal Suitability” factor. An assessment as to “Personal Suitability” is supposed to reflect the applicant’s likelihood to successfully settle in Canada. Among other things, Visa Officers are supposed to assess – in as objective a manner as possible – an applicant’s adaptability, motivation, initiative and resourcefulness.

In a previous issue of this Newsletter, we commented on recent jurisprudence emanating from the Federal Court of Appeal on this subject. At that time, we suggested that the Court was demonstrating an increasing frustration with Visa Officers who award few “points” under Personal Suitability as a means of rejecting applicants who otherwise have objectively strong cases but, for some discretionary reason, are not deemed worthy of success by the particular Visa Officer.

Several recent decisions rendered by the Federal Court of Appeal on Personal Suitability are worth discussing in order to further explore this controversial area of law.

In Yan Luo v. Canada (Minister of Citizenship & Immigration), the applicant was a mere one or two units short of qualifying for an Immigrant Visa. In awarding the applicant relatively few units for Personal Suitability, the Visa Officer took into account the fact that the applicant had never been to Canada. The applicant appealed this decision.

In ruling in favour of the applicant, the Federal Court of Appeal made two interesting findings. Firstly, the Visa Officer should not have faulted the applicant for never having visited Canada. Although knowledge of Canada IS a factor to be considered when assessing Personal Suitability, the Judge held that a previous visit to Canada was not determinative of successful establishment in Canada.

Having concluded that one of the Visa Officer’s main concerns was in fact not relevant, the Judge held that this mistake was all the more exacerbated by the fact that the applicant only needed one or two units to qualify.

However, in Khodabaksh Mehrabani v. Canada (Minister of Citizenship & Immigration), an applicant had been awarded 69 units — one unit short of the 70 units required to qualify. The Visa Officer had awarded the applicant only 5 (out of a possible 10) units for Personal Suitability.

The applicant appealed the decision to the Federal Court of Appeal, which proceeded to reject the applicant’s appeal. Essentially, the Judge held that the Visa Officer was in the best position to assess the applicant’s Personal Suitability. Having determined that the Visa Officer had evaluated all reasonably relevant factors (such as the applicant’s motivation and initiative), the Judge concluded that it was not appropriate for him to substitute his own opinion for that of the Visa Officer. Contrary to Luo, the Court was not concerned with the fact that the applicant was only one unit short of qualifying.

Finally, in Ramzan Panjwani Ali v. Canada (Minister of Citizenship & Immigration), the applicant had been assessed as an “accountant.” The National Occupational Classification – the guideline which Visa Officers use to assess the qualifications of applicants – stipulates that accountants must become accredited in Canada in order to practice their professions. The Visa Officer refused the applicant on the grounds (among other things) that the applicant had made no effort to learn about how to become accredited as an accountant in Canada. The applicant appealed this decision.

Once again, the Federal Court of Appeal ruled against the applicant. The Court agreed that to be assessed as an accountant the applicant should have at least enquired as to Canadian certification requirements. Moreover, the Judge concluded that “it was clear that his failure to take any steps to fulfill the requirements for the practice of his profession in Canada had an important impact on” the Visa Officer’s view of his Personal Suitability.

Prospective Skilled Worker/Professional applicants would be well-served to take notice of the significant implications of the above decisions. If nothing else, these cases demonstrate that when it comes to determining Personal Suitability, it is difficult to establish any hard and fast rules. Rather, every case must be assessed on its own particular merits.

In a recent edition of this Newsletter, we commented on the term “usually required” and its controversial application by Visa Officers.

As we discussed earlier, applicants who apply for a Canadian Immigrant Visa under the “Skilled Worker” category are assessed under a “points” system. Under current Federal Selection Criteria, applicants are awarded “units of assessment” for a number of objective factors, such as age, education, occupational background and language ability. In addition, applicants must satisfy the employment requirements associated with their intended occupation in Canada, as set forth in the National Occupation Classification (NOC). The NOC will stipulate, for example, whether a particular occupation requires the applicant to have completed a certain level of education at a university or post-secondary level.

It is then up to Visa Officers to determine, on a case by case basis, whether a given Skilled Worker applicant satisfies all of the NOC requirements applicable to his or her intended job occupation. Thus, even though an applicant may have good English or French language skills, a high level of education, and several years of work experience, if the particular NOC requirements are not met, the applicant will most likely be unsuccessful.

In many cases, the NOC’s wording leaves room for interpretation with respect to the exact educational and work experience requirements associated with many job occupations. One of the most controversial phrases employed by the NOC is that of “usually required.” For example, it is relatively common for the NOC to provide that a certain type of university degree is “usually required” for qualification under a particular occupation. Given the importance of satisfying the NOC requirements, it is not surprising that a Visa Officer’s interpretation of “usually required” can be the deciding factor in determining whether a Skilled Worker’s application will be accepted or rejected.

Of late, many Skilled Worker applicants have found that wherever the NOC stipulates that a particular degree is “usually required,” Visa Officers have interpreted this to mean “always required.” In some cases, applicants have been rejected for the sole reason of not having the degree that was “usually required.”

A client of ours was recently refused at the “paper screening” (preliminary) stage for just this reason. Our client had requested that he be assessed in the occupation of Computer Systems Analyst. In his refusal letter, the Visa Officer wrote that to qualify as a Computer Systems Analyst, a bachelor’s degree in computer science, mathematics, business administration or commerce, or a college diploma in computer science is required. Our client, however, only had a bachelor’s degree in Engineering.

We appealed this decision, arguing that the NOC does NOT state that a bachelor’s degree in computer science, mathematics, business administration or commerce, or a college diploma in computer science “is required.” Rather, the NOC states that one of these degrees is “usually required.” Furthermore, we argued that our client’s detailed CV, reference letters and university transcripts indicated significant studies and employment experience in the areas of computer systems analysis, computer programming/applications, electronics applications, mathematics, and business-related applications.

We stressed that this supporting documentation provided ample preliminary evidence as to our client’s qualifications as a Computer Systems Analyst and, more particularly, as to the nature of his education, training and experience “in its entirety.” At the very least, we submitted that our client should be granted the opportunity to demonstrate his qualifications as a Computer Systems Analyst at a selection interview.

Prior to the case being heard at the Federal Court of Appeal, the Crown agreed to rescind the Visa Officer’s refusal letter and re-open our client’s case. Our client will now have the opportunity to present his case at a selection interview.

It appears that in the future, Visa Officers may in fact be more liberal in their interpretation of the term “usually required.” The Department of Citizenship and Immigration has recently released a draft Operations Memorandum (OM) on this very subject. Citing the recent trend in caselaw at the Federal Court of Appeal, the draft OM instructs Visa Officers to apply the term “usually required” in accordance with the following principles:

§ The term “usually required” does NOT mean “always required.” Rather, it simply means “usually required.”
§ When assessing the qualifications of an applicant who does NOT have the educational background that is “usually required,” Visa Officers should examine the application IN ITS ENTIRETY to determine whether there are “persuasive reason[s] for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the ‘usual’ educational qualifications are not present.” In other words, the applicant’s education, training and work experience must be examined in its entirety.

While this draft OM has not yet been implemented, it is a sign that applications similar to that of our client will no longer be rejected at the preliminary “paper screening” stage. Hopefully, applicants whose qualifications do not meet the literal requirements of the law will henceforth have the right to demonstrate that they will still be able to hold employment in Canada in their intended occupations.

In order to halt the long-term effects of Quebec’s declining birth rate, Immigration Minister Robert Perreault announced that the province wants to increase the number of immigrants who arrive in Quebec each year by 40 per cent between now and 2003. In addition to favour the number of new arrivals to 45,00 from 30,000 annually, this measure aims to target French-speaking immigrants, and to make it more easier for foreign professionals to obtain accreditation in Quebec.
Furthermore, three scenarios, as part of a discussion document on Quebec’s triennial immigration strategy, call for the number of immigrants to jump b 10 to 65 per cent a year between 2000 and 2003, an average increase of 40-per-cent. Although these last targets were made public, the policy still has to be debated in public hearings, and the provincial government must adopt it by November 1.
The provincial government also plans to abolish a list of ineligible professions, enabling professionals from all fields – except doctors – to seek accreditation in Quebec professional associations while they are applying for citizenship. Consequently, their qualifications will we examined, and they will be informed of all necessary equivalency courses or training they need to practice their profession as quickly as possible.
Currently, the list of disqualified professions includes, among others, nurses, architects, lawyers, acupuncturists, engineers, veterinarians, teachers and scientific technicians.
In light of the above measures, one of Minister’s Perreault first priorities is to attract more French-speaking immigrants. He also considers opening an immigration office in North Africa to attract primarily Algerians and Moroccans who wish to emigrate to North America.

Targeting North Africa, Mexico
Immigration Minister Robert Perreault feels that Quebec has to concentrate concentrates its efforts in North Africa, Mexico, Vienna and Eastern Europe where a lot of people speak French as their second or third language and/or learn French in school. This measure aims to increase the number of new arrivals in Quebec and favour their integration in the Quebec’s society more quickly.In fact, under a 30-year-old agreement with the Federal government, Quebec is entitled to choose about half the number of new arrivals each year, with the federal immigration authorities selecting the rest. Ottawa has jurisdiction over family reunifications and refugees who are fleeing political oppression, war or famine, while Quebec selects immigrants under programs designed to attract students, businesspeople and skilled labour.In doing so, Quebec would like ideally to increase the number of immigrants it admits annually from 19,700 in 2000 to 30,700 in 2003.