On October 10 2009, the Canada Gazette (the federal government’s newspaper) published a draft set of regulations pertaining to the temporary foreign workers.  The draft regs are available here:

http://www.gazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html

A significant change to the current law relates to more specific guidelines for a Service Canada officer when assessing the genuineness of a job offer.   The specific criteria for assessing genuineness that would be set out in subsection 200(5) of the proposed amendments as follows:

whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;

whether the offer is consistent with the reasonable employment needs of the employer;
whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

The proposed regulations are generally helpful by being more specific than before.  Currently, Service Canada does not have clear or detailed guidance on the issue of genuineness.  The consequence was that visa officers overseas would conduct their own assessment of whether the job being offered was genuine – with often unfair results.  Unfair results included failing to contact an employer to confirm details about the place of work, or the job to be performed.  It is hoped that visa officers would be satisfied with leaving this task to Service Canada officers who work in Canada, and hence are better placed to assess the genuineness (or ‘bona fides’ in lawyer jargon) of a job offer.

One cause for concern is the issue of the past compliance of an employer with applicable federal or provincial laws.  On the face of it, compliance with the law should be a welcomed and obvious criterion to use when figuring out if a job offer is genuine.  However, employers would consequently have to tread very carefully when seeking out a foreign worker for temporary employment, as some mistakes may ultimately end of as evidence of a lack of past compliance.  This would be a good opportunity to emphasize the usefulness of a representative when considering a foreign worker.

Given that a registry of these non-compliant employers is proposed (on immigration Canada’s website), the entire reputation of a business can be in jeopardy if the work permit application is bungled.  Picture someone googling “ABC company” and finding one hit for said company on immigration Canada’s website showing non compliance with the law.

Employers can also end up on this public blacklist of sorts for providing “significantly different” wages, working conditions or job duties.  I’m not too worried about this provision; given that the Federal Court would be governed by what is ‘reasonable’,  I would interpret the term ‘significantly’ to be one that would shield employers from spurious findings or frivolous accusations.  The downside is that the phrase “significantly different” would likely have to be litigated before some consensus on its meaning is obtained.

It is also logical for the government to impose a four year cap on the availability of these work permits.  Specifically, it is proposed that a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada would be required, with exemptions under certain circumstances.  The exceptions appear to be people whose work permit was issued to on the basis of conferring a ‘significant benefit’ (Regulation 205 (a)), and a permit issued under an international agreements (Reg. 204 a)) and seasonal agricultural workers.  All others, such as low skilled workers and those under LMOs, or other Reg. 205 workers (such as reciprocal employment, or spouses of workers and students) would be subject to this four year cap.  I understand the cap applying to low skilled workers, but can see that spouses of work permit holders and spouses of study permit holders (who obtain a work permit) may get caught under this provision with no corresponding enforcement benefit to Canada such as the protection of foreign workers or maintaining of Canadian wages.

The Canadian immigration department has two sets of notes about persons who interact with said department: the CAIPS and FOSS notes.

The CAIPS (Computer Assisted Immigration Processing System) are the notes taken by Canadian visa offices located outside of Canada.  Canadian immigration offices and Canadian ports of entry keep notes through the FOSS system (Field Operations Support System).  These notes often are a snapshot of an interview conducted by an officer, or a review of an application submitted by a person seeking entry into Canada.  These notes also capture any concerns the immigration department may have such as whether a person may have lied at an interview or at a border crossing, submitted false documents, didn’t seem credible, or has a criminal record or medical condition.

These notes are obviously valuable in the sense of record keeping.  The notes routinely note whether a document or a fax or an email was received from a lawyer on behalf of a client.  For example, I have overturned some refusals after obtaining these notes because said notes have captured a relevant fact that was ignored by the immigration department (for example, the immigration department said my client failed to provide a fax when in fact the notes recorded that the fax was received).

These notes ostensibly provide some accountability on the part of Canada’s immigration department.  However, they are nowhere near a perfect tool in this regard.  For example, a person who is interviewed by an officer will have a file created that discusses the goings on at that interview.  However the notes are not a verbatim transcript, despite the fact that the federal court has discussed the advantages of having something akin to a transcript (e.g. an oral recording of the interview). In the case of Cui v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1750.  the Federal Court stated,

“It certainly would be preferable if these interviews were taped so that there was some objective way to assess contradictory descriptions such as those set out in the respective affidavits in this case.”

Invariably, these notes are at the centre of a court case where I interpret the notes in a favourable light on behalf of my client, and the Department of Justice lawyer portrays the notes to make my client look like a liar.  In the legal setting we do not use the phrase ‘liar’, but rather, a more genteel one: ‘credibility’ (For example, “The record of Mr. Smith’s interview, as reflected in the CAIPS notes revealed a lack of credibility”.

Below is an example where the ‘he said-she said’ allegations of an interview were resolved by the Federal Court (in Oei v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 600) by giving more weight to the officer’s CAIPS notes:

“In my view, the Court should attach greater weight to the visa officer’s testimony about what took place during the interview, for the following reasons. First, it is corroborated by the notes she recopied into the CAIPS system, which make absolutely no mention of problems communicating with the plaintiff, whereas there is nothing to support or confirm the plaintiff’s allegations. Further, the officer’s notes were re-transcribed into the CAIPS the day after the interview with the plaintiff, namely March 21, 2001, when the events were still fresh in her memory, and the plaintiff’s affidavit, on the other hand, dates from August 31, 2001, over five months after the interview. In my opinion the fact that the CAIPS notes, which corroborate the officer’s testimony, were contemporaneous is a sufficient reason to prefer her testimony to that of the plaintiff.”

If your immigration has been handled well, these notes are similar to scoring 120 over 80 on your blood pressure check – just a routine sign of an ordinary case.  If your immigration case has not been handled well (or if you fit a profile that the immigration authorities don’t like), CAIPS notes are like a scar that never heals and will likely remain in your file for the rest of your life and beyond.

On the other hand FOSS notes can be altered in your favour.  People with criminal records are routinely ‘flagged’ by a Port of Entry officer.  The consequence of this flag is that all Canadian Ports of Entry will bar entry to a person who has been found inadmissible to Canada based on said criminal conviction.  What happens to a person who obtains a pardon – is his flag still there?  The FOSS flag will still remain and that person will be questioned at length despite the obtaining of the pardon and will still have some difficulty in entering Canada.  Fortunately, these flags can be removed with the help of a legal professional if the initial source of Immigration Canada’s irritant has been removed.

A discerning reader would probably agree that obtaining CAIPS or FOSS notes is in and of itself, not particularly helpful.  If you have lots of time on your hands, you could eventually learn the meaning of the codes contained in these notes.  However, you would not have the experience that reveals the proper context to interpret them.  Since it’s been said that the best treatment is prevention, it would be a good idea to consult with a legal professional before commencing your immigration case so as not to be scarred by a bad set of CAIPS notes, or inconvenienced by FOSS.  In other words, get counsel for an immigration application because when you bugger it up, the record remains, as do the consequences.