Stewart Sharma Harsanyi Immigration Law Firm Blog

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

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 or her best foot forward with a thorough and comprehensive application. It is the applicant's responsibility to show that he or she meets the employment requirements. The LMIA does not bind the officer-the officer is still required/entitled to conduct an independent assessment to determine whether the applicant has the ability to perform the work or not. The Federal Court has said that, "The mere fact of the positive LMIA [LMO] is not determinative ..." Singh 2015 FC 115. At a minimum, ensure that the application demonstrates the applicant meets the NOC requirements... Read more →

Options for Exploited and/or Abused Temporary Foreign Workers

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 "H&C"). The outcome of course depends on the officer. Some have been sympathetic, others not so much. I sought judicial review on such a refusal. Justice Fothergill's decision will help many others I think: [17] The immigration officer did not dispute that Ms. Kaur had been the victim of fraud, and even praised her willingness to assist in the investigation of her employer. While acknowledging that her employer’s actions had undermined her AINP application, the officer appears to have concluded that the situation was effectively resolved by affording Ms. Kaur an opportunity to seek new employment or obtain a new LMIA. The officer ultimately gave little... Read more →

Consequences on Findings of Misrepresentation for Overseas Spousal Work Permits

I was counsel on several refusals of work permit applications made by a spouse [overseas] seeking to join their husband/wife/partner in Canada [the spouses here were international students]. The refusals were strikingly similar; the decisions were made by the same officers in the same office [CHC Delhi]. Officer "AP" who made the initial decision -that she wasn't satisfied or that there was insufficient evidence provided regarding the bona fides or genuineness of the relationship and then recommending a finding of misrepresentation, which was affirmed by Officer "TS". A finding of misrepresentation on the overseas spouse not only results in the refusal of the work permit application, but it also poses an impediment to the intended and likely future application for permanent residence by the spouse in Canada. A Canadian PR or citizen spouse who seeks to sponsor his or her partner to Canada under the Family Class has (generally) an appeal on the merits, a de novo appeal to the Immigration Appeal Division. There is no such fulsome or substantive review in cases involving a finding of misrepresentation by an overseas spouse on a work permit (or visitor visa). This very serious finding of misrepresentation can only be reviewed by... Read more →

Exploitation, Abuse and False Promises

"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 of immigration services to lawyers alone. My position was, in fact, almost entirely endorsed by Lorne Waldman, the next witness, and perhaps the most respected immigration lawyer these last couple of decades. I suggested that regulation and oversight be improved, with additional training for consultants that sought to appear before the Immigration and Refugee Board. Going back to the the Globe article. It discusses nefarious actors like Kuldeep Bansal -there are many others but he perhaps exemplifies the apex (nadir?) of that sordid industry that preys on the hopes and dreams of migrants and workers.... 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 →