Stewart Sharma Harsanyi Immigration Law Firm Blog

A Positive LMIA Does Not Mean a Work Permit Will be Issued

An LMIA does not guarantee that a work permit will be issued to the applicant. The immigration officer still has the discretion to determine whether the applicant can do the job proposed and whether they meet the requirements of the Act and Regulations. It is the responsibility of the applicant to provide a complete and comprehensive application, demonstrating that they meet the NOC requirements and LMIA. The onus is always on the applicant to provide a thorough and relevant application, and there is no entitlement to further opportunities to improve the material. A LMIA Does Not Mean a Work Permit Will be Issued A positive labor market impact assessment, or LMIA, does not mean that an applicant is entitled to a work permit. An immigration officer is still required under the regulations, specifically section 200[3][A] to determine whether the foreign national applicant is able to perform the work sought. If the work permit is rejected, the only option is a judicial review at the federal court and the court will not likely interfere in such a [highly discretionary] bracket determination. Remember, the onus is always on the applicant to put forward a complete application. The applicant has to put his... Read more →

Options for Exploited and/or Abused Temporary Foreign Workers

The author is a 15-year veteran immigration lawyer and has encountered many exploited and abused temporary foreign workers. These workers are often exploited or abused by their own community and face a difficult choice of reporting the abuse or exploitation and risking removal or deportation, or continuing in their untenable situation for the hope of working or staying permanently. The author discusses the options available for these workers, such as a humanitarian and compassionate application, a Temporary Resident Permit, or an open work permit. The author is glad that there are more options for these workers and looks forward to seeing immigration officers implement these protections. In my 15 years practising immigration law, I have encountered many exploited and abused temporary foreign workers (usually low-skill/low-wage). They are often exploited or abused by members of their own community -sometimes even by their own family. This abuse/exploitation takes on many forms. For years, foreign workers were caught in a dilemma. Report the exploitation/abuse and risk removal/deportation from Canada or continue in an untenable situation for hope of working (even at their pitiable wages) or staying permanently. Options for Exploited/Abused Temporary Foreign Workers Some sought relief via a humanitarian and compassionate application (the... Read more →

Consequences on Findings of Misrepresentation for Overseas Spousal Work Permits

Summary: The author is a Canadian immigration lawyer who has dealt with several refusals of work permit applications for spouses seeking to join their partner in Canada. These refusals were made by the same officers at the same office (CHC Delhi) and resulted in findings of misrepresentation, which posed significant obstacles for the intended future application for permanent residence. The author notes that these findings are very serious and can only be reviewed by the federal court, with no de novo appeal to the Immigration Appeal Division. The author argues that the officers made an error in equating Section 4 of the IRPR with Section 40 of the IRPA, and that the officers rely on their own stereotypes about marriages in India and rely on an unrecorded interview to make their decision. The author states that there is a lot of jurisprudence on this issue and that findings of misrepresentation must be supported by compelling evidence and that the legal tests to determine misrepresentation and bona fides are two different things. The author believes that the officers at CHC Delhi are under a misapprehension regarding spousal work permit misrepresentation and wants to raise awareness of this issue at the federal... Read more →

Exploitation, Abuse and False Promises

Summary: The article is about the exploitation of foreign workers by certain consultants and practitioners and the lack of regulation and oversight in the industry. The author has personal experience with this issue and testified before the Parliamentary Standing Committee on Immigration. The author suggests that the government needs to improve regulation and oversight, but bringing consultants under the supervision of lawyers or eliminating the industry altogether may not solve the problem. The real issue is the lack of enforcement by agencies like CBSA, who are not doing enough to bring these scofflaws to justice. "The only thing necessary for the triumph of evil is that good men do nothing." -Edmund Burke A recent Globe and Mail article about the exploitation of foreign workers and the "industry" that has sprung up to take advantage of these vulnerable individuals is not terribly shocking; and, now, after so many years bearing witness to it all, it fills me with weary resignation rather than anger. I discussed some of these transgressions during my testimony before the Parliamentary Standing Committee on Immigration (CIMM) two years ago. Unlike the CBA, I did not argue for the elimination of immigration consultants altogether and restrict the practice... Read more →

The Exploitation of Temporary Foreign Workers -Interview on CBC Edmonton March 8, 2019

Tara McCarthy: A foreign worker from Edmonton is now in hiding. She says the owner of an Edmonton restaurant that sponsored her work visa tried to extort her for sex. If she didn't comply, he threatened to withdraw her immigration application. The woman who can't be named, due to a publication ban, was sponsored under the Alberta immigrant nominee program. Raj Sharma is the managing partner of Stewart Sharma Harsanyi. He specializes in immigration law and joins me now from our Calgary Studio. Good morning. Raj Sharma: Good morning. Tara McCarthy: How common is it that foreign workers get exploited like this? Raj Sharma: Unfortunately, Tara, it happens all too often. And the exploitation and the ill treatment of temporary foreign workers is nothing new. It goes back to the days of coolie labor. It goes back to the days of the Chinese laborers on the Canadian Pacific Railway. Tara McCarthy: Why is it so common? Raj Sharma: It's common because there's various power dynamics, power imbalances at play. It happens because we have individuals that are coming here from third world countries. And there's various sort of actors, bad actors unfortunately. There's recruiters, for example. There's individuals in every... Read more →

A substantial portion of my practice is assisting employers with foreign workers. Generally speaking, unless the foreign worker is a US or Mexican professional (in which case NAFTA may apply), the employer needs to obtain a Labour Market Opinion (LMO) to employ an individual who is not a Canadian citizen or permanent resident. The employer needs to apply for a LMO with Service Canada. The employer needs to show efforts at recruiting Canadian citizens or permanent residents; this is done by way of proof of advertisement. The employer needs to include a copy of an employment contract indicating appropriate wages (Service Canada will not issue a LMO if they feel the employment would result in downward pressure on wages for Canadians). Once the LMO is issued, the foreign national can apply for a work permit. Read more →