Citing government and law enforcement sources, the Globe and Mail has reported that the Royal Canadian Mounted Police (“RCMP”) is investigating allegations of fraud at dozens of immigration consulting companies across the country. The probes target unlicensed and unscrupulous immigration consultants who trade in helping foreigners establish themselves in Canada.

Registered members of the Canadian Society of Immigration Consultants are authorized to represent clients in Canadian immigration cases (this authorization does not extend to other types of law, including United States immigration matters). Immigration consultants are clearly not lawyers. However, many lay persons, especially those from other countries, are not aware of this distinction.

The Globe and Mail reported in a recent article that more than 300 people who claimed to live at the same address in Mississauga, Ontario, were being investigated by the RCMP in what police suspect may be a massive case of citizenship fraud. The RCMP investigation of this case is just one of many similar investigations currently under way.

Immigration Minister Jason Kenney vowed to crack down on immigration consultants this week. However, New Democratic Party immigration critic Olivia Chow has stated that the minister has been promising reform for more than a year and has yet to deliver.

The Globe and Mail article appears here.

The Globe and Mail reported today that there are more unregistered immigration consultants in Canada than registered members of the Canadian Society of Immigration Consultants (CSIC). According to the article, CSIC investigators have tracked nearly 2,000 “ghost” consultants in Canada who are providing unethical advice and in some cases counseling prospective immigrants to commit fraud for fees that range between $1,200 and $30,000 each. CSIC itself has only 1,655 registered members.

We have previously raised the issue of immigration consultants in our article on choosing a legal representative for a Canadian immigration matter. Unlike in the United States, registered Canadian immigration consultants are deemed not to be engaged in the unauthorized practice of law (UPL) if they represent clients in Canadian immigration matters (practicing U.S. immigration law is still considered UPL). However, CSIC has no authority to enforce ethical rules against unregistered consultants and has been only marginally successful in disciplining its own members.

The Globe and Mail article is available here.

As the 2010 Vancouver Olympics will begin on February 12, 2010, it is important to remind travelers of several important issues that may affect their ability to enter Canada.

Visa Requirements

The first thing that foreign visitor should determine is whether he or she will need to obtain a temporary resident visa. The following individuals do not require a temporary resident visa to enter Canada:

1. A citizen of Andorra, Antigua and Barbuda, Australia, Austria, Bahamas, Barbados, Belgium, Botswana, Brunei Darussalam, Croatia, Cyprus, Denmark, Estonia, Finland, France, Federal Republic of Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Republic of Korea, Latvia, Liechtenstein, Luxembourg, Malta, Monaco, Namibia, Netherlands, New Zealand, Norway, Papua New Guinea, Portugal, St. Kitts and Nevis, St. Lucia, St. Vincent, Samoa, San Marino, Singapore, Slovakia, Slovenia, Solomon Islands, Spain, Swaziland, Sweden or Switzerland (Mexico and the Czech Republic were recently been removed from this list);
2. A British citizen;
3. A British overseas citizen who is re-admissible to the United Kingdom;
4. A citizen of a British dependent territory who derives his or her citizenship through birth, descent, registration or naturalization in one of the British dependent territories of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena or the Turks and Caicos Islands;
5. A person holding a British National (Overseas) Passport issued by the Government of the United Kingdom to persons born, naturalized or registered in Hong Kong;
6. A person holding a valid and subsisting Special Administrative Region passport issued by the Government of the Hong Kong Special Administrative Region of the People’s Republic of China;
7. A person holding a passport or travel document issued by the Holy See;
8. A national of the United States or a person who has been lawfully admitted to the United States for permanent residence;
9. A foreign national holding a national Israeli Passport;
10. A citizen of Lithuania or Poland if they hold a machine readable passport issued by one of these countries, which contains a contactless integrated circuit chip; and
11. A holder of a passport that contains a diplomatic acceptance, a consular acceptance or an official acceptance issued by the Chief of Protocol for the Department of Foreign Affairs and International Trade on behalf of the Government of Canada and are a properly accredited diplomat, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies, or of any international organization of which Canada is a member;

With only limited exceptions, all other foreign travelers must obtain a temporary resident visa from a Canadian consulate prior to seeking admission to Canada.

Identification Documents

Virtually all non-Canadians are required to present a valid passport or equivalent travel document to enter Canada. However, some exceptions to this rule appear in Subsection 52(2) of the Immigration and Refugee Protection Regulations. The two most notable exceptions are United States citizens and lawful permanent residents of the United States.

United States citizens are not required to present a United States Passport to enter Canada. However, they must present proof of their identity and United States citizenship (e.g. photo identification and a United States Birth Certificate, Certificate of U.S. Citizenship, or Certificate of U.S. Naturalization).

Similarly, lawful permanent residents of the United States are not required to present a valid passport to enter Canada from the United States. However, they must present their Form I-551s (green cards) to be admitted to Canada. In addition, Form I-551s are only acceptable when entering from contiguous territory and are not valid for international flights from outside Canada, unless accompanied by a valid passport or travel document.

Notwithstanding the above, as a result of the Western Hemisphere Travel Initiative (“WHTI”), United States citizens are now required to present one of the following documents to United States Customs & Border Protection in order to re-enter the United States:

1. United States Passport;
2. A passport card;
3. A valid trusted traveler program card (FAST, NEXUS, or SENTRI);
4. An enhanced driver’s license;
5. A Military ID with official travel orders; or
6. A U.S. Merchant Mariner Document.

U.S. permanent residents are also required to present valid passports to be readmitted to the United States. Therefore, regardless of Canadian laws, United States citizens and U.S. permanent residents should be in possession of a valid passport or other WHTI-compliant document to ensure their readmission to the United States at the end of their trip.

Children Traveling without both Custodial Parents

In order to discourage international child abduction, parents who share custody of their children (and who are not traveling with the other custodial parent) are required to present:

1. Copies of their legal custody documents; and
2. A letter from the other custodial parent, authorizing them to take the child on a trip to Canada. The other parent’s full name, address and telephone number should be Included in the letter of authorization.

Adults who are not parents or guardians should have written permission from the parents or guardians to supervise the children. The permission letter should include addresses and telephone numbers where the parents or guardians can be reached.

Inadmissibility to Canada

The Immigration and Refugee Protection Act contains several grounds that may render a person inadmissible to Canada. A full discussion of these grounds of inadmissibility appears here but the most frequently encountered grounds involve criminal offenses and medical problems.

An individual who has committed (even if not convicted) or been convicted of a criminal offense should obtain a legal opinion from a qualified Canadian immigration lawyer prior to applying for admission to Canada. Even a single drunk-driving offense is considered a ground of inadmissibility to Canada (a full discussion of drunk-driving convictions and inadmissibility appears here).

An individual may be inadmissible for health grounds if his or her health condition:

1. Is likely to be a danger to public health;
2. Is likely to be a danger to public safety; or
3. Might reasonably be expected to cause excessive demand on health or social services.

As a result, any foreign national who suffers from a serious medical condition should obtain a legal opinion from a qualified Canadian immigration lawyer prior to applying for admission to Canada.

Conclusion

Foreign nationals planning on attending the 2010 Vancouver Winter Olympics should take early action to ensure that their travel plans are not adversely affected by any of the above issues.

On November 10, 2009, Citizenship and Immigration Canada (“CIC”) amended its Foreign Worker Manual (“FWM”) to impose additional restrictions on intracompany transferees (Exemption Code C12) who enter Canada to work for start-up businesses. Under Subsection 205(a) of the Immigration and Refugee Protection Regulations, international companies may temporarily transfer qualified employees from their foreign offices to their Canadian facilities as intracompany transferees. This exemption is considered the Canadian equivalent of the L-1 nonimmigrant classification in the United States.

According to the FWM, where the Canadian employer is a “start-up company,” it will be expected to:

• Secure physical premises to house the Canadian operation;
• Furnish realistic plans to staff the new operation; and
• Have the financial ability to commence business in Canada and compensate employees.

This essentially mirrors the requirements imposed on “new office” L-1 petitions in the United States. Although the phrase “start-up company” has not been defined, these requirements were clearly derived from United States immigration laws; it is therefore helpful to consider the meaning of “new office” within the context of the L-1 category in the United States. Under U.S. law, the phrase “new office” means a business that has been doing business for less than one year.

In addition to the above, the following requirements must also be established:

• Executives/managers: The company must demonstrate that it will be large enough to support the executive or management function.
• Specialized Knowledge: The company must demonstrate that it is expected to be doing business and the work must be guided and directed by management at the Canadian operation.

The requirement that the specialized knowledge worker be guided and directed by management at the Canadian operation appears to be stricter than the L-1B category in the United States, since it is possible to send L-1B workers to a new office in the United States without already having managerial personnel in place. The FWM suggests that a specialized knowledge worker will not be permitted to enter to work for a start-up operation in Canada unless a Canadian manager is already in place or an executive or manager is also transferring to the start-up company.

Work permits granted to intracompany transferees working at start-up operations in Canada are limited to an initial term of one year. The same limitation applies to new office L-1 petitions in the United States.

In order for the foreign national to obtain a renewal of their intracompany transferee work permit after the first year, he or she must provide evidence that:

• The Canadian and foreign companies still have a qualifying relationship;
• The new office has engaged in the continuous provision of goods or services for the past year; and
• The new office has been staffed;

The American Bar Association (ABA) Section of International Law will be holding a Continuing Legal Education teleconference on United States and Canadian immigrant investor options. The title of the teleconference is “Dealing with the Investment Immigration Visa: Navigating the Differences in U.S. and Canadian Laws” and it will take place tomorrow (Wednesday, January 27, 2010) at 1:00pm-2:00pm ET.

Along with other panelists, Mr. Chang will provide an overview the U.S. EB-5 immigrant investor category, the Canadian federal immigrant investor category, the Quebec immigrant investor category, and other investor options available under Provincial Nominee Programs. The EB-5 program will also be compared to its Canadian counterparts.

The teleconference is open to ABA members (at a discounted price) and to the general public (at full price). For additional information, please refer to the following URL: http://www.abanet.org/cle/programs/t10iiv1.html

The special immigration measures recently announced for people in Haiti (including priority processing) only apply to family members, including spouses, common-law and conjugal partners, dependent children (including a child adopted abroad) parents, grandparents and orphaned family members of Canadian citizens, permanent residents and protected persons. The Canadian family member must sponsor the application. Citizenship and Immigration Canada’s current priorities are:

1. Children (adopted or unaccompanied dependents of Canadian citizens or permanent residents)
2. Spouses and dependent children
3. Parents and grandparents
4. Dependents of principal applicants who have applied for permanent residence as protected persons.

The Government of Canada is concerned that some members of the Haitian-Canadian community are being misled into believing that a paid immigration consultant can speed up the arrival of their loved ones from Haiti. No immigration consultant can speed up this process. If an applicant chooses to hire a consultant, their application will not be given special attention or processed faster.

The only representatives who may charge a fee to represent or advise applicants on immigration and refugee matters with the Government of Canada are:

1. Lawyers who are members in good standing of a Canadian provincial or territorial law society;
2. Immigration consultants who are members in good standing of the Canadian Society of Immigration Consultants (CSIC); and
3. Notaries who are members in good standing of the Chambre des notaires du Québec

The Government of Canada will not deal with non-authorized representatives who charge a fee for their service. Additional information on choosing a legal representative may be found here.

Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today that Canada will expedite immigration applications from Haitians with family in the country. Haitians in Canada temporarily will also be allowed to extend their stay.

Effective immediately, priority will be given to new and existing sponsorship applications from Canadian citizens, permanent residents and protected persons who have close family members in Haiti. However, they must identify themselves as being directly and significantly affected by the current situation and notify Citizenship and Immigration Canada (“CIC”). Priority consideration will also be given to pending adoption cases with the visa office in Port-au-Prince.

New sponsorship applications should have “Haiti” prominently written on the mailing envelope. Sponsors and applicants presently in Canada who have applications in process should notify the CIC Call Centre at 1-888-242-2100 (in Canada only, from 7:00am to 7:00pm Eastern Time, Monday through Friday) or by email at question-Haiti@cic.gc.ca to identify their existing applications, if they or the family they have sponsored have been adversely affected.

Also effective immediately, CIC has also put in place special immigration measures for Haitian nationals who are currently in Canada. Temporary residents already in Canada may apply to extend their temporary status according to normal procedures. These applications will be considered on an expedited basis and fees associated with these applications will be waived. Those who are unable to support themselves may also apply for a work permit.

Further, all removals to Haiti have now been temporarily halted. Although normally the Government of Canada does not deport people to Haiti except in limited circumstances, this now applies in all cases.

The Canadian Government says it is looking into a plan to help fast-track immigration from Haiti in the wake of the earthquake that has crippled the Caribbean country. Prime Minister Stephen Harper said on Thursday that he and Immigration Minister Jason Kenney have been discussing ways to ease immigration and refugee rules to allow more Haitians into Canada quickly.

The federal government is looking at ways to make it easier for Haitians to come to Canada as immigrants or refugees, in response to the devastating earthquake in the Caribbean country. Options include waiving fees, speeding up applications for family reunification, and perhaps even relaxing the definition of who can be included in reunification.

The Canadian Government previously enacted temporary measures to speed-up reunification of sponsored immigrants with their families in Canada, after the December 2004 tsunami that killed over 270,000 people in 11 countries in Asia and Africa. The hardest hit countries were Indonesia and Sri Lanka. Citizenship and Immigration Canada waived fees and granted priority processing to affected applicants.

Foreign Affairs Minister Lawrence Cannon said Ottawa is working closely with Quebec’s immigration minister, Yolande James, to make sure both levels of government are on the same page. Quebec is the primary destination for Haitian immigrants in Canada, and Montreal has one of the biggest concentrations of Haitian populations living abroad.

Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today that passengers aboard non-commercial aircraft bringing aid to and evacuating people from Haiti that are making a technical stop or transiting through Canada’s airports temporarily will not require a visa.

Yesterday he also agreed to exempt foreign nationals who are directly responding to, or affected by, the humanitarian situation in Haiti and intend to transit through Canada on a non-commercial aircraft for the sole purpose of refuelling and/or making a technical stop from the requirement to obtain a temporary resident visa. This measure will be in place temporarily.

For some time now, there has been a trend towards treating the practice of corporate immigration law as a commodity rather than a professional service. Faced with shrinking budgets, many HR departments now consider primarily the bottom line when deciding who will act on their behalf in corporate immigration matters.

If one assumes that legal services in the field of corporate immigration law are a homogeneous commodity, with all law firms offering identical services, it is logical to choose the service provider that offers the lowest price. However, in reality, the quality of legal services varies greatly from firm to firm.

At the high end of the range, a lawyer will personally prepare an individual immigration filing and will not delegate a substantial proportion of the work to a paralegal or legal assistant. At the low end of the range, a lawyer will supervise up to 12 paralegals/assistants (who perform virtually all of the work) and will do only a basic review of the filing before signing it.

Knowing that the quality of legal services varies so greatly, why do many HR departments continue to make decisions based primarily on cost? The reason is simple: in corporate immigration matters, the decision maker is separate and distinct from the person receiving the benefit of the lawyer’s services.

HR professionals do not retain corporate immigration lawyers on their own behalf; they retain them on behalf of their employees. While the priority of the individual employee may be to have the best legal representation, the priority of many HR departments is to stay within its budget even if the legal representation received is less than ideal. As long as the employee eventually obtains the immigration benefit sought, it does not matter if he or she encounters problems that could have been avoided with more comprehensive legal representation. Although this trend is likely continue, it should be discouraged.

The practice of law is considered a profession because it requires skill; corporate immigration law is no different. If the market demands that all corporate immigration law firms match the fees of these “visa factories,” they will have no choice but to adopt the same mass production business model and the quality of representation in this field of law will deteriorate.

In addition, immigration is a very important and potentially life-changing process for many employees. An employer who provides inadequate legal representation to its employees (especially where they are not given any choice in the matter) will encounter increased employee dissatisfaction, which will adversely affect employee retention (especially when the employee acquires lawful permanent residence and is no longer bound to the employer).

For the above reasons, HR departments should resist the urge to retain their corporate immigration lawyer primarily based on cost. Where this is not an option, the following alternatives may be considered:

1. Utilizing the services of a second law firm that can act in cases involving high-value employees; or
2. Offering the employee the ability to retain their own lawyer, provided that they are willing to pay the additional cost of such representation.

By providing higher quality representation in important cases or by giving employees the ability to retain a lawyer of their own choosing (at their own cost), HR departments can bolster employee satisfaction without a significant increase in their operating costs.