Mccuaig Desrochers

On June 18, 2019, Immigration, Refugees and Citizenship Canada (IRCC) launched two new five-year pilot programs for eligible caregivers. The new programs are intended to make it easier for caregivers to change employers, bring their immediate families to Canada, and apply for permanent residence after obtaining two years of qualifying work experience in Canada.

The previous programs, Caring for Children and Caring for People with High Medical Needs, ended on June 18, 2019. If you have already applied under one of these programs before that date, your application will continue to be processed. If you did not apply under these programs before June 18, 2019, you may be eligible to apply under the new programs.

The new pilot programs are Home Child Care Provider and Home Support Worker. The Home Child Care Provider program is directed at applicants with qualifying work experience under NOC 4411 – home child care provider (experience as a foster parent is excluded). The Home Support Worker program is directed at applicants with qualifying work experience under NOC 4412 – home support worker (experience as a housekeeper is excluded).

These programs offer a pathway to permanent residence for eligible caregivers. Applicant caregivers must have two years of full-time qualifying work experience in Canada and meet other eligibility requirements, such as language level (a minimum CLB 5 in English or NLCL 5 in French in all four language skills), education (equivalent of a completed Canadian post-secondary credential of at least one year), and admissibility requirements related to security, criminality, and medical reasons.

Caregivers who do not yet have two years of work experience may also apply if they have a valid and genuine job offer for one of the eligible occupations. Successful applicants will be issued occupation-restricted work permits. This is a change from the previous programs, which provided employer-specific work permits. The new occupation-specific work permits will allow applicants to work for any employer, so long as the work falls into the listed occupation. This means that it will be easier for applicants to change employers, and employers will not have to apply for Labour Market Impact Assessments (LMIA). Observers have noted that this change will hopefully offer caregivers greater protection from abusive workplaces by allowing them to obtain new employment without waiting for the LMIA process. For some families that rely on caregiving support, however, this change may also make it more challenging to retain caregivers. 

Caregivers who have been issued work permits under one of these new programs can continue to work toward obtaining two years of full-time qualifying work experience. Once this work experience has been completed, applicants can submit proof of this to IRCC to have their permanent residence applications decided.

These programs are open to caregiver applicants who live inside and outside of Canada. If a caregiver has qualifying work experience in Canada under a different immigration program, they are still eligible to apply to these new programs for permanent residence.

Another welcome change under these new programs is the opportunity for caregivers’ families to accompany them to Canada. Caregivers are now able to apply for open work permits for their spouses or common-law partners and study permits for their dependent children.

The new programs each have an annual quota of 2,750 applicants, for a total of 5,500 applicants each year. Immediate family members are not included in these quotas. As the programs may fill up quickly, it will be especially important for caregivers currently working in Canada who need to extend their working status or who are currently eligible for permanent residence to apply as soon as possible.

In addition to these new pilot programs, the Interim Pathway for Caregivers program is also accepting applications from qualifying caregivers from July 8, 2019 to October 8, 2019. To qualify to apply for permanent residence under the Interim Pathway program, an applicant must have valid qualifying status in Canada, at least one year of full-time qualifying work experience in Canada as a home child care provider or home support worker, meet the required language skill levels, and have a Canadian high school diploma or a non-Canada educational credential that is equivalent to a Canadian high school diploma.

The Home Child Care Provider and Home Support Worker programs are positive steps toward recognizing the invaluable contribution caregivers make to our communities and the importance of keeping caregivers’ families together. However, it remains to be seen whether these new programs will provide caregivers with a more efficient and safer pathway to permanent residence.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the January 2021 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

On October 17, 2018, recreational use of cannabis (marijuana) became legal in Canada. The Cannabis Act came into force then, and now governs usage, cultivation, possession and trafficking in cannabis.

It is very important to understand that only cannabis purchased or cultivated legally per the rules and restrictions found in the Act is considered legal. Any cannabis purchased outside of a properly regulated store (or online store), or grown at home without following the proper restrictions, is still considered “illicit” cannabis which is illegal. Having too much legal cannabis or growing too much cannabis is also an offence. Possessing this cannabis can cause serious problems for one’s immigration status if someone is not a citizen of Canada, especially for a worker, student or visitor. Edible cannabis products are still not legal in Canada right now and would be considered “illicit”.

Before legalization, simple possession of small amounts of cannabis was dealt with as a summary offence only under the Controlled Drugs and Substances Act. If a foreign national (worker, student or visitor) was charged with possession of a small amount of cannabis, they would generally not be considered “inadmissible” to Canada for “criminality” and they would not be subject to removal proceedings for this offence (unless there were two convictions not arising out of the same incident). This is because prior to legalization the offence was designated as a summary offence only (this does not apply to larger amounts over 30g). Since legalization, personal possession of cannabis (possession of legal cannabis over the limit or ilicit cannabis) is now classified as a hybrid offence, which puts foreign nationals at serious risk, as under immigration legislation, a hybrid offence is considered an “indictable” offence such that it can attract immigration consequences. Foreign nationals (workers, students or visitors) would likely be subject to removal from Canada for a conviction for possession under the Cannabis Act, and they would not have a right to appeal that removal. It is important to remember this legislation is not retroactive, meaning if someone was convicted before legalization, the previous legislation would apply to them.

In the United States, at the federal level all possession of cannabis is still considered “illicit”. This means that if a Canada Border Services Agency (“CBSA”) officer asks a person trying to enter Canada from the U.S.A. whether they possessed cannabis or purchased cannabis before, and the person answers “yes”, they could be considered to have “committed an offence outside of Canada that is an offence where it was committed and that, if committed in Canada, would constitute an indictable offence (possession of illicit cannabis)” (section 36(2)(c) of the Immigration and Refugee Protection Act). This applies even if someone has tried cannabis in a state where it was legalized (confusing, I know). This provision can also apply to similar admissions for things done in other countries. It is very important to never lie or mislead the government when these questions are asked, as CBSA has wide powers to search your belongings or electronic devices, or investigate further.

When it comes to the unauthorized distribution or sale of cannabis (less than 3kg), under the Cannabis Act, permanent residents (as well as foreign nationals) can now be found inadmissible and subject to removal from Canada, regardless of the actual sentence received. Prior to legalization, unauthorized distribution and unauthorized sale of cannabis (under 3 kg) would only have a maximum sentence of 5 years less a day, which would not make a permanent resident inadmissible unless they actually received more than 6 months in prison as a sentence. Now, the maximum sentence is 14 years and so permanent residents of Canada are at much higher risk (if an offence has a maximum sentence of 10 years or more, permanent residents can be subject to removal from Canada). Importing and exporting cannabis is also not permitted under the Cannabis Act and could result in removal for a foreign national or permanent resident.

Another aspect of the new Cannabis Act to understand are “ticketable offences”; offences that a police officer or peace officer could provide you a violation ticket for, similar to a driving offence. Under the Cannabis Act, officers are provided the discretion to write a ticket for many offences (rather than arresting and charging someone at the police station). Section 52 of the Cannabis Act says that the payment of a ticket is the same as a guilty plea to an offence, but a person would receive an “absolute discharge”, meaning for immigration purposes this would not be considered a conviction. However, if a person contests the ticket and loses, or fails to pay the ticket, then a conviction is entered against them. This conviction could then possibly lead to the process where CBSA finds a person to be inadmissible to Canada, and removal proceedings may begin. As this legislation is so new, we do not yet know exactly how these will be dealt with by immigration authorities, but it is something to be aware of and seek legal advice right away if you are ever given a ticket, before the deadline for payment.

A conviction resulting from failing to pay a ticket, or unsuccessfully contesting a ticket also means that on any future immigration-related applications to travel to Canada or other countries, or applications for an eTA (electronic travel authorization), a person must admit that they have a conviction for an offence on their record, otherwise they could be considered to have misrepresented to the government. A finding of misrepresentation can lead to removal from Canada, and a 5-year bar from the country.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the April 2019 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

The Federal Government has announced plans to start collecting exit information for almost all individuals who travel out of Canada. 

It may come as a surprise to many that Canada does not currently know when most people leave the country.  While we collect information on individuals who legally enter Canada, we generally don’t track when people depart.  Our only form of exit tracking was implemented in 2013 when Canada began receiving entry records from American authorities for foreign nationals and permanent residents (but not Canadian citizens) who crossed the land border into the United States such that the entry into the United States could serve as confirmation that the individual had departed Canada.

Under the new plan, travelers will not have to take any additional steps when leaving the country as exit information will be gathered from the United States (in the event of a departure through the land border) or from air carriers.

The implementation of the improved exit system will occur in two phases, one to cover land travel and the other to cover individuals who depart Canada by air. 

First, the monitoring of individuals leaving Canada by land will be augmented by increasing the current exchange of information with the United States to include Canadian citizens who cross the Canada-USA land border.  This is expected to be implemented by the summer. 

Twelve months later, air carriers will be required to provide the government with electronic passenger manifest information prior to the departure of all outbound international flights. 

Once both of these additional pieces of exit data collection are implemented, Canada will be gathering information on the departure of approximately 97% of all outbound travelers (only missing exit information for the limited number of individuals who depart Canada by rail or via marine modes of transportation).

The effects of this exit data collection will be far reaching.  The government’s ability to access a much more complete set of exit information is intended to improve national security, better monitor compliance of Canada’s immigration laws, and protect the integrity of federally administered social benefit programs.

The government has noted that collecting this exit information for all individuals who leave Canada will reduce national and public safety risks by allowing authorities to identify and respond to the travel of high-risk individuals (e.g. known terrorists, human smugglers, child abductors etc.) and to better detect controlled or prohibited goods departing Canada on board outbound commercial international flights.

The exit information will also be used by both Employment and Social Development Canada and the Canada Revenue Agency.  ESDC will be able to use the exit information to identify people who are outside of Canada and who are no longer eligible to receive benefits under Canada’s Employment Insurance and Old Age Security Programs (an estimated savings of $206.11 million over 10 years).  Similarly, the CRA will be able to use the exit information to ensure compliance with eligibility requirements for family and child tax credits and other benefits (an estimated savings of $151.06 million over 10 years).

Improved integrity of Canada’s immigration and customs systems will be one of the key benefits of improved exit information.  As the government will now have information on who is inside and outside of Canada and how long returning individuals have been outside of the country, it will be able to confirm applicable duties and taxes for returning residents, identify temporary residents who attempt to remain in Canada beyond their authorized stay, focus immigration enforcement investigations on persons still in Canada, determine whether family-class sponsors are residing in Canada, and verify whether permanent residents or applicants for citizenship have met their residency requirements.

Whenever the government proposes to increase the collection of personal information, the impact on privacy is always an important consideration.  The government has committed to conducting ongoing audits and evaluations to ensure that it is accountable for how the personal information is used and have also determined that collected information will be retained for no more than 15 years unless otherwise required by law.

Once fully implemented, the collection of exit data has the potential to significantly improve the ability of Canadian immigration authorities to detect and quickly respond to individuals who stay in Canada beyond the period authorized.  It remains to be seen how exactly the tracking of exit data will affect how immigration authorities operate.  It is clear, however, that it will be as important as ever for individuals to ensure that they remain in careful compliance with the conditions of their stays in Canada. 

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.

UPDATE: Parent/Grandparent interest to sponsor form will be available at noon EST on January 28, 2019.

Immigration, Refugees and Citizenship Canada (IRCC) kept eager applicants guessing until the very last minute, but finally announced on December 31, 2018 that the much anticipated reopening of the 2019 Parent/Grandparent Sponsorship program would not occur right at the dawn of the new year, but would instead be reopening “in late January”.  The announcement, which was done via Twitter also indicated that IRCC would give “advance notice” of the reopening of the program.

For 2019, IRCC will be using a first-come, first-serve basis. Interested applicants would want to complete their Expression of Interest forms as soon as possible once the program does reopen as IRCC will invite individuals to submit their Parent/Grandparent Sponsorship Applications based on the time that they submit that online form. Click here for our previous article on the changes to the intake process for 2019.

We understand there is much excitement about the re-opening of the Parents and Grandparents Program. Please be advised that the program will be opening in late January, not on the 2nd, but rest assured we will give you advance notice before it opens. https://t.co/jQYKUNQgeT

— IRCC (@CitImmCanada) December 31, 2018

In October of 2018, Canada legalized the recreational use of marijuana (cannabis) for adults. The introduction of this legislation arrives with some significant changes to the penalties that may be imposed on those who commit offenses related not only to marijuana but to many driving related offences as well. Taking effect on December 18, 2018, one such change will see an increase in the maximum penalty for driving under the influence, or “DUI”, and it is this change that may catch permanent residents and temporary residents by surprise and potentially impact their immigration status.

As of December 18, 2018, the maximum term of imprisonment for DUI’s will increase from 5 years to 10 years, and as a result will become an offence that is automatically considered “serious criminality” for the purposes of Canadian immigration laws.

The distinction between ordinary criminality and serious criminality is an important one.

Only foreign nationals, such as visitors, foreign workers or students, become inadmissible to Canada for “ordinary” criminality. Our immigration laws define “ordinary” criminality as (a) having been convicted in Canada of an indictable or hybrid offence, or of two strictly summary offences not arising out of a single occurrence; (b) having been convicted outside Canada of an offence or offences that would constitute “ordinary” criminality had it been committed in Canada; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable or hybrid offence.

Inadmissibility for “ordinary” criminality can cause foreign nationals, but not permanent residents, to lose their immigration status in Canada, or can prevent them from entering Canada as temporary residents or from obtaining permanent resident status.

An individual would continue to be inadmissible to Canada for ordinary criminality until they receive a pardon for the offence, or until they are considered rehabilitated.  An individual is eligible to apply for rehabilitation after five years have passed since the completion of their sentence. Individuals who have a single foreign conviction or offence that causes them to be inadmissible for “ordinary” criminality are automatically deemed to have been rehabilitated if ten years have passed since the completion of their sentence.

While “ordinary” criminality only affects foreign nationals, serious criminality causes inadmissibility for Canadian permanent residents and foreign nationals alike.

Canada’s immigration laws define serious criminality as: (a) having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or of an offence for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years.

Individuals who are inadmissible for serious criminality will also continue to be considered inadmissible to Canada until they receive a pardon for the offence, or until they are considered rehabilitated.  Just as with “ordinary” criminality, an individual who is inadmissible for serious criminality can make an application for rehabilitation after five years have passed since the completion of their sentence; an important difference however, is that an individual will never be considered deemed rehabilitated for serious criminality by the mere passage of time.

Raising the maximum penalties for DUI’s from five years to ten years has the potential to significantly affect the Canadian immigration system. For example, prior to the penalty increase, a permanent resident would only face removal proceedings for a single Canadian DUI conviction if they received a sentence of more than six months of imprisonment. With the coming increase in the maximum penalty for DUI’s, a permanent resident could face removal proceedings for a DUI conviction even if they received a sentence that was six months or less – though such individuals would maintain a right to appeal their removal to the Immigration Appeal Division.

Even more serious is the impact of being convicted of a DUI offence outside of Canada, or even just being found to have committed a DUI offence outside of Canada, as a permanent resident could potentially lose their PR status and face removal and, in these two circumstances, would lose their right to appeal to the Immigration Appeal Division.

Furthermore, foreign nationals seeking to enter Canada previously did not have to worry if they had a single foreign DUI conviction that was more than ten years old as they were deemed rehabilitated and therefore not inadmissible to Canada.  With the increased penalties for DUI’s, those types of individuals will no longer be deemed rehabilitated by the passage of time, and instead will have to actively make rehabilitation applications or will have to apply for special permits to be able to enter Canada.

Readers may wonder whether a person who has committed an impaired driving offence in the past may be at risk. The Minister of Immigration, Refugees and Citizenship has stated that, following the Supreme Court of Canada’s decision in the case of Tran v Canada (Public Safety and Emergency Preparedness), a past impaired driving offence that was considered as criminality rather than serious criminality will not endanger a person’s PR status. This is because an assessment of serious criminality should involve considering the law that was in place at the time of the offence.

Going forward, temporary and permanent residents should be aware of these offence penalty changes and must remember that a DUI may have severe and permanent repercussions to their Canadian immigration status.  Non-citizens charged with a DUI must make sure that their immigration status is considered during any criminal law proceedings and may want to consult with an immigration lawyer to understand what the potential consequences are and what remedies may be available when it comes to their immigration status.

McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the November 2018 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.