Law Times

Law TiMes • March 9, 2009 FOCUS New rules mean finding other options for those frozen out BY GLENN KAUTH Law Times R ecent changes to Can- ada's immigration rules are taxing lawyers' cre- ativity as they look for other op- tions for applicants frozen out by the new system. "It's a recession in our depart- ment. As a lawyer, you have to know the law in depth and you really have to be familiar with other programs," says Veronica Zanfir, a senior associate with the Bomza Law Group in Toronto. "We're turning away so many people," she adds. "It's affecting my billables." In November, the federal gov- ernment implemented its sweep- ing overhaul of the immigration system that added new require- ments for people wanting to be- come permanent residents. Among the biggest changes were the new ministerial guide- lines that established 38 occu- pations prospective immigrants must have at least one year of work experience in as well as scoring a minimum of 67 under the points system. As a result, many applicants who previously qualified to immigrate based on their education, skill set, and ability to speak one of Canada's official languages are finding themselves ineligible. The new rules essentially took what is called a human- capital approach to immigration focused on skills and replaces it with one based on demands for specific jobs in the labour mar- ket. For Karen Kwan Anderson, an associate with Pace Law in Toronto, the changes should make it easier for newcomers to find a suitable job. "You hear about people who are underem- ployed in their field when they come to Canada," she says. "We need people who can contribute to this economy [and] maybe get this economy going again." For Zanfir, while the new rules present a challenge, they nevertheless are an opportunity for enterprising lawyers who can find solutions for clients who don't work in one of the 38 occupations. "The lawyers who know [the system] are go- ing to stand out. The lawyers who don't know are going to be weeded out," she says, not- ing that whereas in the past the overwhelming majority of pro- spective clients who contacted her firm qualified to immigrate, now only 30 per cent do. Among the alternatives is the new Canadian experience class, which allows international graduates of Canadian post- secondary schools with one year of work experience in their field to become permanent residents. A similar option exists for tem- porary foreign workers with at least two years of experience here. Those applicants don't have to fit within the 38 occu- pations, and so far the process- ing times for prospective immi- grants in that category have been "phenomenal," Zanfir notes. Kwan Anderson, in fact, has seen applicants get approval much faster than she's seen be- fore. "We just had one done under the Canadian experience class. It took four months. It's great when you have education, experience, and the English." In one case, a doctor working here temporarily as a resident at a hospital was able to immi- grate without having to leave the country to apply. If he had to go back home to apply under an- other category, the process could have taken years, she notes. Besides the Canadian ex- perience class, the ministerial instructions are still an option for people who don't fit into the for refugee status can't count that time in order to immigrate under the Canadian experience class as well. "It's kind of unfair that they spend all of that time in Canada, but it doesn't count towards status or the Canadian experience class." At the same time, she won- ders whether the list of 38 oc- cupations in demand might be too narrow. "The negative side may be that you're closing the door on a lot of potential immi- grants who could contribute to the economy," she says. Zanfir, too, points out that many of the jobs identified by the ministerial instructions reflect neglect other provinces' needs. "Not all of the occupations reso- nate with what the market needs right now," she says. "What about Ontario? Don't we need HVAC (heating, ventilation, and air- conditioning) engineers? What about civil engineers? We're still building bridges." Zanfir adds that the list of 38 can sometimes be overly strict. The ministerial instructions don't identify warehouse managers as eligible, for example, but they do include construction managers. As a result, warehouse manag- ers can't immigrate even though their skills are highly transferable You hear about people who are underemployed in their field when they come to Canada. . . . We need people who can contribute to this economy [and] maybe get this economy going again. 38 occupations. International students and temporary for- eign workers who have been in Canada legally for just one year and who score 67 points are also eligible, according to the guide- lines. As well, those who meet the minimum points can also immigrate if they have a job of- fer from a Canadian employer under what's called arranged employment. "That's your ticket in," says immigration lawyer Shoshana Green, a partner at Green and Spiegel Barristers and Solicitors, who expects arranged employment to play a major role in immigrant recruitment. There are other difficulties with the new system, however. For one, Kwan Anderson is con- cerned about the fact that people who work here while they apply occupations identified as urgently in demand by the Alberta gov- ernment. In fact, 14 of the 38 eligible positions also appear on the occupations under pressure list under the Alberta Immigrant Nominee Program. Those jobs include everything from petro- leum engineers to geologists, geo- chemists, and geophysicists, oc- cupations for which Alberta has experienced significant shortages of workers. The federal list also includes several jobs not identi- fied on the Alberta one, such as steamfitters, welders, and elec- tricians, which nonetheless have been high in demand in that province's oil sands sector. Alberta, of course, has experi- enced Canada's most severe labour shortages, but Zanfir still won- ders whether the 38 occupations to those required of a manager in construction, she says. For prospective newcomers, then, the new system means they, too, have to be more aware of what they need to do to qualify for immigration. Under the Canadian experience class, applicants had to have gotten their two years of work experi- ence within three years of apply- ing, said Warren Creates, head of the immigration law group at Ottawa's Perley- Robertson Hill & McDougall LLP, dur- ing a session on immigration law at the Ontario Bar Asso- ciation Institute in February. He noted as well that applications under that program must also include a police certificate. For lawyers, a big part of their job will involve checking that clients meet those application re- quirements. With applicants who qualify under the 38 occupations, for example, counsel can play a role in verifying that the reference letters they send in from their em- ployers to back up their experience reflect the language in Canada's National Occupation Classifica- tion, Creates told the session. Overall, Creates said the new changes have largely been posi- tive. "The government should be rolling out the red carpet and making it easy for people to stay here," he said, noting the difficul- ties temporary foreign workers used to face with requirements that they apply for permanent resident from outside the country. "Finally, I think the government has done some really creative stuff to do that kind of thing." Zanfir, too, says that the re- vamped system should in some cases make Canada's immigration rules more competitive with places such as Australia, where applicants to come here have in many cases emigrated to that country instead due to its faster processing times. In the meantime, for people who don't qualify under the new rules, she's been advising them not to give up. One option, of course, is to try to get work ex- perience in one of the 38 occu- pations, but as Zanfir points out, the downside is that the list of preferred jobs can change. In the end, though, the new focus on specific occupations leaves them with few options other than to get experience in Canada or a job offer here. "We tell clients to go back, try to meet the require- ments, and we'll see you in one or two years," Zanfir says. LT PAGE 13 Canada's Immigration and Citizenship Bulletin James Egan This timely publication deals with aspects of both immigration and citizenship law and policy. It provides insight into issues such as sponsorship, refugee status, residency applications, inadmissibility, work permits, foreign adoptions and much more. Highlighting critical and emerging issues, it gives an in-depth review and assessment of the issues in a concise and easily readable manner. Subscription with binder • 10 issues/yr • $227 • P/C 0430120999 • ISSN 0843-7564 caseAlert – Immigration Law An easy to use electronic service that keeps you up-to-date with the latest decisions in immigration law. Each week subscribers receive an e-mail bulletin summarizing recent court decisions in the immigration law area. These summaries are arranged in various sub-topics to provide a quick overview of what's happening in the courts today, and are linked to the case digest and the full text decision in pdf format. 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