Tuesday, August 14, 2007

A DAY IN MR. X’S LIFE - Part I - By Rezaur Rahman (Barrister & Solicitor)

It was a busy Monday morning and I was about to leave my office to go to the Federal Court when the phone rang. I had already instructed my secretary not to pass on the phone to me but to take a message from the caller. However when the phone kept on ringing I knew that there was something unusual. The Secretary told me that one Mr. X needed my help because he was told he would be deported from Canada to Bangladesh. He wanted to speak to me. I took his call. It seemed to me that he was at the verge of a nervous breakdown. When I asked “What can I do for you….?” he started crying.

I listened to his problem briefly, noted down his phone number and told him not to worry. He kept on telling me ”Please do something, please otherwise I will have to kill myself, If I am sent back to Bangladesh I will not be able to endure the shame.” Though I did not meet him, I could feel that he was feeling the intense pang of betrayal and the fear of imminent disgrace and reversal of fortune.

I promised to look after his problem as soon as I came back from the Federal Court and I gave him some instructions to follow.

What happened to him also happened to a few others and not all of them were as lucky as him to eventually obtain the permission to stay in Canada. What happened to him ? …well he came to Canada as a Skilled Worker . Just a few days before his departure from Bangladesh, he got married to comply with his parents’ wish. His Immigration Consultant in Bangladesh did not know that Mr. X had a legal duty to inform the Canadian Immigration about the change in his marital status. When Mr. X came to Canada he was warmly welcomed by the Canadian Immigration. Being overjoyed Mr. X declared that his wife will soon come to Canada. The Immigration Officer asked him when did he get married and why did he enter Canada as a single person ? Mr. X told the Officer that he did not know that he had to declare that prior to his landing. The Officer seized his passport and Immigrant visa and told him that he would not be issued a Permanent Resident Card because he breached the Canadian Immigration law by misrepresenting material fact.

They also told him that it is a requirement that a spouse or a child who is a dependant of the principal applicant be examined medically prior to the landing of the principal applicant; otherwise that dependant will be barred permanently from immigrating to Canada. So his wife would never be able to come to Canada because she did not fulfill the requirement

Mr. X became totally perplexed and frightened. It was his worst nightmare. The Immigration Officer told him that soon he would have to leave Canada. Mr. X pleaded to the Immigration Officer that he did not know the law and his Immigration Consultant never informed him about that. The Immigration Officer simply reminded him that ignorance of the law was not a valid defense.

Mr. X is now a Permanent Resident of Canada and he was allowed to sponsor his wife. I am not going to write in details how we won the case but let me tell you one interesting point that we found in his case. We argued that Mr. X was required to inform the Citizenship and Immigration Canada about his marriage prior to his landing in Canada. In the context of Canadian Immigration law landing does not mean disembarkation from the aircraft but to obtain a document at the Port of Entry (airport, seaport, land border) to confirm the Permanent Resident status in Canada. The Officer who interviewed Mr. X seized his passport and the Immigrant visa (visa to come to Canada but that does not confirm the immigrant status) when Mr. X disclosed his marital status. It means Mr. X actually informed the Citizenship and Immigration Canada prior to obtaining his landing or Permanent Resident Status. If the Immigration Officer had granted him the Permanent Resident status prior to the disclosure of Mr. X’s marital status, the case would have been more difficult.

Nobody wants to face the challenge that Mr. X faced, so it would be better if you remember the following points while applying for immigrating to Canada:

One: If you prepare your application form without the help of an authorized and experienced professional be careful to read all the instructions and the fine prints.

Two: If you want to rely on any professional, chose the authorized, experienced and knowledgeable one who is a person of integrity.

Three: Always inform your visa office if any change occurs in your personal situation that might affect your eligibility, for example getting married or becoming a parent or convicted of any crime.


SO YOU WANT TO COME TO CANADA!

No, I cannot blame you. Canada is a land of opportunity where one with proper skills and determination may reach his destination in life. Anyone who visits this wonderful country immediately feels at peace. As if it is a land for which you have been waiting for long time. It does not mean that you don’t love your motherland. You do, but there is no conflict if you become a citizen of another great country like Canada.

“IMMIGRANTS HAVE ALWAYS HELPED TO MAKE CANADA’S ECONOMY STRONG AND PROSPEROUS. TO CONTINUE THIS TRADITION, CANADA ENCOURAGES SKILLED WORKER APPLICATIONS FOR POERMANET RESIDENCE FROM PEOPLE WITH SKILLS, EDUCATION AND WORK EXPERIENECE THAT WILL CONTRIBUTE TO THE CANADIAN ECONOMY”

Canada is a democratic and highly developed country, which provides finest education, health care and security for its citizens and permanent residents. Peace and stability are the hallmarks of this great nation. Everybody is treated equally irrespective of their socio-cultural, ethnic or religious background. The Canadians are respected all over the world for their contributions in the humanitarian and peace keeping endeavors.

If you want to be a part of a great but humble, rich but frugal and powerful but somber nation, Canada should be your choice. Canada is a popular destination for many foreign nationals.

YOU CAN BECOME A CANADIAN TOO:

Yes, you may become a permanent resident of Canada and eventually become a citizen of this wonderful country.

Four types of people may immigrate to Canada:

1. Federal Skilled Worker Class.
2. Provincial Nominee Class.
3. Business class
4. Family Class.

You can apply for permanent resident of Canada under three categories:

1. Skilled worker: You have to obtain minimum 67 points on the basis of the level of your education, work experience, age and proficiency in either English or French language or both. There are other factors which will help you to obtain more points.

2. Business immigration:

(a) Investor: Needs business experience and must possess a minimum net worth of legally obtained CDN $ 800,000 and make an investment of CDN $ 400,000. Must earn 35 points on the basis of different factors. More….

(b) Entrepreneur: Needs business experience and must possess minimum net worth of CDN $ 300,000. Must own and actively manage a business in Canada that will create jobs and will contribute to the economy. Must earn 35 points on the basis of different factors.

(c) Self-employed: Must have the relevant experience and also the ability and intention to create own employment in Canada. This applicants are mostly cultural performers or athletes of world standard. One can also qualify by purchasing and managing a farm in Canada. Must earn 35 points on the basis of different factors.


THE FEDERAL SKILLED WORKER CLASS:

There are minimum requirements to qualify under the Federal Skilled Worker Class. The first requirement is at least one-year work experience and the second requirement is the ability to support yourself and your dependents once you immigrate to Canada. The second requirement is assessed on the basis of your fund.

Before you apply under the Federal Skilled Worker Class please check if you have at least one year of full-time or full-time equivalent work experience. This must be a paid work and not a voluntary one. Your work must have taken place in the past 10 years and not before that. Your work experience must be in the category of O,A or B skill level (Click here to check the list of approved occupations) of the National Occupation Classification (NOC).

Once your work experience meets the requirement to apply as a skilled worker, you will have to prove that you have the financial capacity to support yourself and your dependents who will be immigrating to Canada.

“The government of Canada provides no financial support to new skilled worker immigrants. You must prove that you have enough money unencumbered by debts of obligations to support yourself and your family members after you arrive in Canada.”


EDUCATION:

Points are awarded on the basis of the educational credentials that you have earned and the time you spent in full-time or full-time equivalent study.

Example: If you have a Master’s degree your total years of full-time or full-time equivalent study must be 17 years. When the two criteria are fulfilled you will get 25 points. If you have 16 years of study you will get only 22 points.


The following chart will help you to understand how the points are awarded for education credentials and full-time or full-time equivalent study,

Education level - Years of education - Points

Master’s or PhD - 17 years - 25

Two or more university degrees at Bachelor level - 15 years - 22

A three-year diploma, trade certificate or apprenticeship - 15 years - 22

A university degree of two years or more at the Bachelor’s level - 14 years - 20

A two year diploma ,trade certificate or apprenticeship - 14 years - 20

A one year university degree at the Bachelor’s level or a one-year diploma, trade certificate or apprenticeship - 13 years - 15

A one-year diploma, trade certificate or apprenticeship - 12 years - 12

Secondary school o/ High school - 5



LANGUAGE ABILITY

You must be proficient at least in one of the official languages of Canada, English or French. If you are proficient in both the languages, you will get more points. If you have some abilities in both the languages then you should decide which one you are more comfortable using. The language you comprehend , read and speak best should be selected as your First official language and the other one should be selected as second official language.

There is a difference in marking for these two sets of languages.

Definition of proficiency level:

High: Your proficiency level indicates that you can communicate effectively in most social and work situations.

Moderate: Your proficiency level indicates that you can communicate comfortably in familiar social and work situations.

Basic: Your proficiency level indicates you can communicate in predictable context and on familiar topics.

No: You do not have basic proficiency.

Points are awarded on the basis of proven ability in reading, writing, listening to and speaking English and/ or French.


IMPORTANT: The Citizenship and Immigration Canada wants conclusive proof of your language ability. There are two ways to prove it. One is by taking a language proficiency test administered by an approved organization. Another one, by submitting supporting documentation. It is HIGHLY RECOMMENDED that you take the General Training Option of the International English Language Testing System (IELTS) test for English test or the Test d’ Evaluation de Fran├žois (TEF) for French language test to prove your proficiency in that language. You can also take the Canadian International Language Proficiency Index Program (CELPIP) test. These tests are conclusive.

However if you believe that no such test is necessary because the medium of instruction of your education was either English or French or both and you have sufficient documentation to prove that you may submit those proofs along with a written explanation as alternative to IELTS score.

Remember, when an applicant submits the score of a language test to the CIC, the Immigration Officer who is assessing your application has no choice but to accept that score as a final point for your ability in that particular language. On the contrary, when you submit documentation and an explanation about your proficiency, it is up to the Immigration Officer to determine the appropriate point.


Point to remember: Under the simplified process you don’t have to submit the IELTS or CLPP score or any other documents at the time of filing the application. The CIC will ask you to submit those when your file will be ready. So don’t take any language test unless you are instructed by the CIC to submit prove. You will get time to submit proof. Don’t be panicked.

More information on language ability, visit:
http://www.cic.gc.ca/english/immigrate/skilled/factor-language.asp

WORK EXPERIENCE:

You get maximum 21 points for your work experience. Not all experience is counted. You must have gained your experience in an occupation which is listed in Skill Type O or Skill Type A or B of the National Occupational Classification.

You must have gained your experience through a full time and paid work in the last 10 years prior to submitting your application to CIC.

Your occupation must not have listed in the restricted occupation list. The CIC has the right to declare a certain occupation as restricted. That means experience gained in that occupation will not be accepted for assessing points. You can check the updated information at the http://www.cic.gc.ca/ under the banner “Will You Qualify”

The point for work experience is assessed in the following manner:

Years of experience & points:

1 = 15, 2 = 17, 3 = 19, 4+ = 21


AGE:

You get point for you age at the time of submitting your application. Don’t be worried in thinking that you will lose points if its takes CIC longer in deciding your application.

Age & Points:

16 or under = 0
17 = 2
18 = 4
19 = 6
20 = 8
21-49 = 10
50 = 8
51 = 6
52 = 4
53 = 2
54+ = 0

ARRANGED EMPLOYMENT:

When you are applying from abroad and points:

1. A prospective Canadian employer offers you a full time job, approved by the HRSDC - 10 and you meet all required Canadian licensing or regulatory standards relating to that job


When you are applying being in Canada and Points:

1. You are working on a temporary work permit which will remain valid
at least for12 months and your employer has offered to give you a permanent job if your application for permanent residence is accepted. 10

2. You are working in a job that does not need HRSDC confirmation and your work permit will remain valid for at least 12 months and your employer has offered to give you a permanent job if your application for permanent residence is accepted. 10


ADAPTABILITY:

Points for adaptability are awarded for certain experiences that might have been gained by you and /or your spouse or common-law-partner.


ADAPTABILITY FACTORS & POINTS:

A. Your spouse or common-law partner has a level of education of:

Secondary school (high school) diploma or less - 0
A one-year diploma, trade certificate, apprenticeship, or university degree and at least 12 years of full-time or full-time equivalent studies - 3
A diploma, trade certificate, apprenticeship. Or university degree of two years or more and at least 14 years of full-time equivalent studies - 4
A Master’s or PhD and at least 17 years of full-time or full-time equivalent studies - 5

B. You or your spouse or common-law partner studied in Canada,
at a post-secondary institution for at least two years on a full-time basis after the age of 17 and with a valid study permit - 5

C. You or your spouse or common-law partner worked in Canada that was - 5
- full-time.
- for at least one year.
- on the basis of a valid work permit


D. You have earned points under arranged employment - 5

E. You or your spouse or common-law partner has any of the following relatives who is a Canadian citizen or permanent resident and lives in Canada - 5

Parent
Grandparent
Child
Grandchild
Child of a parent
Sibling
Child of grandparent
Aunt
Uncle
Grandchild of a parent
Niece
Nephew

Remember: For same experience, only one of you can get points. For example if both of you have studied at a post-secondary institution in Canada for at least two years as full-time students and with a valid study permit only one of you will get 5 points for that. If both of you have relatives in Canada the applicant will get maximum 5 points.


Investor (more information):

You and your immediate family (spouse, children) can immigrate to Canada under this class if you fulfill the requirements. The Federal Investor program deals with all the provinces in Canada except the province of Quebec. The Quebec Investor program deals exclusively with those applicants who want to settle in the province of Quebec.

Requirements (for all provinces of Canada except Quebec):

Requirements & Explanation:

Ownership of a business (Not mandatory) - If you own a business it must be a qualifying business and you must have managed that.

Business experience (minimum two years) - Experience of managing a qualifying business

Managing 5 full-time employee - If you don’t have a business and have no experience in managing a business but if you have the experience of managing 5 full-time employees of a business for at least two years , you will qualify.

Minimum net worth of CAD$ 800,000.00 - Net worth means the value of your assets. It includes your property, stock, bond, share, and money in the bank. You must have obtained these assets legally which means you must be able to show by verifiable evidence (tax return, bank transaction records) that you have accumulated wealth by following lawful method.

Investment of CAD$ 400,000.00 - You deposit this amount to a Canadian financial institution approved and guaranteed by the Canadian government. The principal amount will be returned to you after five years without any interest.

Miscellaneous - Must be cleared by medical and security screening. Must not be inadmissible to Canada on any other ground as stated in the law.


Requirements for the province of Quebec:


Requirements & Explanation:

Ownership of a business (Not mandatory) - If you own a business it must be a qualifying business (details below) and you must have managed that.

Business experience (minimum two years) - Experience of managing a qualifying business. Management experience (planning, supervision and control of human, physical and financial resources) acquired in a lawful and profitable, commercial, industrial or agricultural business, OR Management experience in a governmental or international organization

Managing 5 full-time employee - If you don’t have a business and have no experience in managing a business but if you have the experience of managing 5 full-time employees of a business for at least two years , you will qualify.

Minimum net worth of CAD$ 800,000.00 - Net worth means the value of your assets. It includes your property, stock , bond , share, money in the bank . You must have obtained these assets legally which means you must be able to show by verifiable evidence (tax return, bank transaction records) that you have accumulated wealth by following lawful method.

Investment of CAD$ 400,000.00 - You deposit this amount to a Canadian financial institution approved and guaranteed by the Canadian government. The principal amount will be returned to you after five years without any interest.

Miscellaneous - Must be cleared by medical and security screening. Must not be inadmissible to Canada on any other ground as stated in the law.


Entrepreneur (More information):


You and your immediate family (spouse, children) can immigrate to Canada under this class if you fulfill the requirements. The Federal Entrepreneur program deals with all the provinces in Canada except the province of Quebec. The Quebec Entrepreneur program deals exclusively with those applicants who want to settle in the province of Quebec.



Requirements (for all provinces of Canada except Quebec):

Requirements & Explanation:

Ownership of a qualifying business - You must own a business the primary purpose of which is other than earning any investment income . (Interest, dividends or capital gain). The business must also fulfill other requirements of the Act. more

Business experience (minimum two years) - Experience of managing a qualifying business Management experience (planning, supervision and control of human, physical and financial resources) acquired in a lawful and profitable, commercial, industrial or agricultural business


Minimum net worth of CAD$ 300,000.00 - Net worth means the value of your assets. It includes your property, stock , bond , share, money in the bank . You must have obtained these assets legally which means you must be able to show by verifiable evidence (tax return, bank transaction records) that you have accumulated wealth by following lawful method.

Investment of CAD$ 400,000.00 - You deposit this amount to a Canadian financial institution approved and guaranteed by the Canadian government. The principal amount will be returned to you after five years without any interest.

Miscellaneous - Must be cleared by medical and security screening. Must not be inadmissible to Canada on any other ground as stated in the law.


Self employed (More information)

Not every occupation is acceptable under the self employed category. You must have the experience of self employment as a farmer, artisan or athlete and cultural performer. If you were not self employed but you had participated in world class level athletics or cultural activities your experience will be recognized. There is no such exemption regarding farm management experience. You must have minimum two years of experience in managing a farm.

You need two years of experience to qualify. You can combine your one year experience of self employment in the designated occupation and one year experience of participation in world class level cultural, athletic or farm management activities. Your must have gained two years experience within the five year period. See definition .

Apart from your ability and intention to be self employed in Canada you must have the ability and intention to make a significant contribution in economic activities involving your field of self employment.

You need total 35 points to qualify under self employed category.

DEFINITIONS:

Want to know more precisely ? Well the following definitions are mentioned in section 88 of the Immigration and Refugee Protections Regulations (IRPAR)

Business experience : “ in respect of (a) an investor, other than an investor selected by a province, means a minimum of two years of experience consisting of:

(i) two one-year periods of experience in the management of a qualifying business and the control of a percentage of equity of the qualifying business during the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application,

(ii) two one-year periods of experience in the management of at least five full-time job equivalents per year in a business during the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application, or

(iii) a combination of a one-year period of experience described in subparagraph (i) and a one-year period of experience described in subparagraph (ii);


Qualifying business: "qualifying business" means a business — other than a business operated primarily for the purpose of deriving investment income such as interest, dividends or capital gains — for which, during the year under consideration, there is documentary evidence of any two of the following:

(a) the percentage of equity multiplied by the number of full time job equivalents is equal to or greater than two full-time job equivalents per year;

(b) the percentage of equity multiplied by the total annual sales is equal to or greater than $500,000;

(c) the percentage of equity multiplied by the net income in the year is equal to or greater than $50,000; and

(d) the percentage of equity multiplied by the net assets at the end of the year is equal to or greater than $125,000.)


Qualifying Canadian Business:
"qualifying Canadian business" means a business operated in Canada by an entrepreneur — other than a business operated primarily for the purpose of deriving investment income, such as interest, dividends or capital gains — for which there is in any year within the period of three years after the day the entrepreneur becomes a permanent resident documentary evidence of any two of the following:

(a) the percentage of equity multiplied by the number of full-time job equivalents is equal to or greater than two full-time job equivalents per year;

(b) the percentage of equity multiplied by the total annual sales is equal to or greater than $250,000;

(c) the percentage of equity multiplied by the net income in the year is equal to or greater than $25,000; and

(d) the percentage of equity multiplied by the net assets at the end of the year is equal to or greater than $125,000.

Relevent experienece:
"relevant experience" , in respect of
(a) a self-employed person, other than a self-employed person selected by a province, means a minimum of two years of experience, during the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application, consisting of

(i) in respect of cultural activities,
(A) two one-year periods of experience in self-employment in cultural activities,
(B) two one-year periods of experience in participation at a world class level in cultural activities, or
(C) a combination of a one-year period of experience described in clause (A) and a one-year period of experience described in clause (B),

(ii) in respect of athletics,
(A) two one-year periods of experience in self-employment in athletics,
(B) two one-year periods of experience in participation at a world class level in athletics, or
(C) a combination of a one-year period of experience described in clause (A) and a one-year period of experience described in clause (B), and

(iii) in respect of the purchase and management of a farm, two one-year periods of experience in the management of a farm; and
(b) a self-employed person selected by a province, has the meaning provided by the laws of the province.


"self-employed person"
"self-employed person" means a foreign national who has relevant experience and has the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada.
"self-employed person selected by a province"
"self-employed person selected by a province" means a self-employed person
(a) who intends to reside in a province the government of which has, under subsection 8(1) of the Act, entered into an agreement referred to in subsection 9(1) of the Act with the Minister whereby the province has sole responsibility for the selection of self-employed persons; and
(b) is named in a selection certificate issued to them by that province.


"specified economic activities"
"specified economic activities" , in respect of
(a) a self-employed person, other than a self-employed person selected by a province, means cultural activities, athletics or the purchase and management of a farm; and
(b) a self-employed person selected by a province, has the meaning provided by the laws of the province.)


POINTS :

Pass mark for all three business classes is divided according to following factors.


FACTORS & MAXIMUM POINTS

BUSINESS EXPERIENCE - 35

AGE - 10

EDUCATION - 25

LANGUAGE ABILITY - 24

ADAPTABILITY - 6

TOTAL = 100

You need only 35 points to qualify in any of the three categories of business class.

Copyright © 2007 Rezaur Rahman (Barrister & Solicitor). All Rights Reserved.