Business and Social (By Keith Hernandez)

1. The right connections

Employment (By Daniel A. Lublin)

1. Workplace Absenteeism

2. Career and Job Fair – Do’s and Don’ts (By Randall S Hansen)

Immigration (By Guidy Mamann)

1. Some good news for moms this Mother's Day

2. Plenty of potential pitfalls for sponsoring foreign fiancees

3. Be wary of allowing your status to expire

4. How will the recent downturn affect immigration levels

5. Primary applicant's death does not mean survivors must start again

6. What's needed to claim points for a blood relative

7. Clarification on implied status not so clear

8. Changes to skilled worker program even worse than originally feared

9. The Conservatives' new priority makes Canadian immigration less fair

10. Expired visa means another three-year wait

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1. Workplace Absenteeism

Ignorance may be real. But sometimes it leads to a paid vacation. Fraught with personal problems, when busy season at work hit, equipment operator Brad Smith had little tolerance left. Despite supportive co-workers and comfortable patterns, a last-minute request to work overtime pushed Smith over the workplace ledge. Deciding that he needed time off work, Smith spoke to his supervisor, seeking assurance that he could leave. The response was swift: Smith was told to do “what you gotta do.” Believing this statement meant that he could simply pack up and leave, Smith left work – without indicating when he would return. Without knowing where Smith was, and having failed in its various attempts to contact him, Smith’s employer, the City of Ramara, considered Smith’s absence to be misconduct and fired him. Smith responded by suing for wrongful dismissal. At trial, Ramara argued that it had taken appropriate steps to reach Smith and that it didn’t have a duty to chase down an absent employee. But an Ontario court recently disagreed. Although Smith’s hasty departure was irresponsible, Ramara had did not have a written policy on vacation scheduling and its efforts to communicate with Smith while he was away were deemed haphazard by the judge. Ramara could have found Smith had it made the appropriate inquires, ruled the court. Most importantly, the law of dismissal requires a consideration of context. Smith’s actions, however foolish, were judged against his unblemished employment history and the personal problems he faced at the time. Had he been a short-term employee, with a history of absenteeism or misconduct, the result in this case might very well have been different. The lessons for both employers and employees are clear: - Workplace absenteeism should be judged against whether there is a history of similar problems,    whether warnings were given and whether a policy specifically defines what the employee ought to    have done. - If a workplace policy exists, follow it with conviction. Flexibility in how a policy is interpreted may    limit its enforcement value.

- Always consider any mitigating factors in determining whether, or what type of, discipline should be   imposed. Don’t learn of them, for the first time, after an employee has been fired.

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2. Career and Job Fair – Do’s and Don’ts (By Randall S Hansen)

Here are the keys to successfully navigating a career or job fair. Follow these simple rules and you should achieve success in this important strategic tool of job-hunting.

• Do have a specific strategy for maximizing your time at the event. And don’t bother spending time with recruiters from companies that do not interest you.
• Do pre-register for the event, and do attempt to get the list of attending companies before the career fair.
• Don't eliminate companies because they are recruiting for positions outside your field; take the time to network with the recruiter and get the name of a hiring manager for your particular career field.
• Do attempt to research basic information about each company you hope to interview with at the job fair. A common career fair question from recruiters is, “Why do you want to work for our company?”
• Don't just drop your resume on the recruiter’s table and walk off.
• Do prepare a one-minute “commercial” that focuses on the unique benefits you can offer the employer - your unique selling proposition.
• Do be prepared to talk about your work experiences, skills, and abilities.
• Don't be afraid or intimidated by the recruiter; he or she is there to do a job -- to meet and screen potential candidates.
• Do have a few questions prepared for each recruiter, but don’t ask questions that any good job-seeker should already know, such as “What does your company do?”
• Do say the recruiter’s name several times during your conversation, even if you have to keep glancing at the recruiter’s nametag. And do get a business card (or at least contact information) from each recruiter.
• Don't forget to eliminate such bad habits as playing with your hair, chewing gum, fidgeting, rocking from side-to-side, acting distracted, rubbing your nose, etc.
• Do remember all the keys to successful interviewing, including a firm handshake, a warm smile, eye contact, and a strong voice.
• Don’t use filler words such as "um", "like", "you know."
• Do bring enough copies of your resume to the career fair. And do bring different versions of your resume if you are searching for different types of jobs.
• Do take advantage of the time you have to build rapport with each recruiter, but don’t monopolize their time.
• Don’t ever just walk up to a booth and interrupt a current conversation; wait your turn and be polite
• Do dress professionally -- conservative is always the safe choice and do wear comfortable shoes.
• Don’t waste the opportunity to network, not only with the recruiters, but with fellow job-seekers and other professionals in attendance at the career fair.
• Don’t ever say anything negative to the recruiter about your college or previous jobs, companies, or supervisors.
• Do be sure to ask about the hiring process of each company, but don’t ask too many questions about salaries, vacation time, and other benefits.
• Do take the initiative and ask about the next step in the process. And do be prepared to follow-up all job leads.
• Do be sure to follow-up with each recruiter. Some experts say to call and leave a message on their voicemail right after the job fair, but at a minimum you should send each recruiter a thank you letter.

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1.Some good news for moms this Mother's Day

The process of sponsoring a mom to Canada has become a whole lot faster than it was on last Mother's Day. While still quite slow, statistics show an impressive increase in the overall speed of this process.

At this time last year, CPC Mississauga was taking 23 months to approve a sponsor and to transmit the approval to the Canadian visa post that will be handling the parent's application. CPC is now taking 29 months to do the same thing.

However, our visa posts overseas have more than made up for this slowdown. Last year, Buffalo processed 80 per cent of its cases in 36 months. This year, it is doing so in just 14 months, bringing the total processing time to 43 months. Total processing times for applications processed at CPC and then through Beijing dropped from 5.4 to 4.2 years. In New Delhi it went from 6.6 to 3.8 years, and in Damascus from 6.6 years to 3.9. Remember, 20 per cent of these cases take even longer to process.

While the improvement is impressive, it is still taking far too long for Canadians to be reunited with their parents. Canadians wishing to sponsor their moms to Canada will have to wait four years on average, or until Mother's Day 2013, to give them a hug on Canadian soil.

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2. Plenty of potential pitfalls for sponsoring foreign fiancees

Q: I am engaged to a woman in Vietnam. I've been doing some research online and understand that Canada no longer has a fiancée class. Should I have my fiancée come here as a visitor and have her apply for permanent residence from within Canada? Or should I go to Vietnam to get married and then sponsor her? Which option is better?

A: Your question is more complicated than you think, and for reasons you may not have considered.
Of course, you are right about the fiancée class. It was killed off in June, 2002. Since then, couples can no longer process their immigration applications at the same time that they are making their wedding preparations. Now they must wait until they are actually married before filing an application. This has unnecessarily forced a lengthy separation on many couples at precisely the time when they should be building a new life together. The reasons for this change have never been adequately explained by CIC, and this development persists as one of the most regressive amendments to the 2002 overhaul of our immigration laws. In contrast, the Americans, who also tightened up their immigration laws after 9-11, did not drop their fiancee class.

Obviously, it is almost always more desirable for people in your situation to bring their fiancée here to get married and start the process from within Canada. But many make a terrible mistake when they do so. The word that people hear on the street is that when you apply for a visitor's visa at a Canadian visa post oversees, you shouldn't tell them that you are engaged since this will almost certainly lead to the refusal of the application. Applicants who follow this advice often conjure up unrelated or false reasons for coming to Canada. If successful, however, a marriage ceremony is usually held here soon after the fiancée arrives and is then quickly followed by an inland spousal sponsorship.

Now the couple faces a serious dilemma.

The application forms ask for details about the evolution of the relationship. How you met, where you met, and when you met. If you tell the truth, this will inevitably lead to a question from CIC:

"Why didn't your fiancee mention your relationship when she applied for a visitor's visa?"

The withholding of this information will likely be used by CIC to substantiate a finding that you and your fiancée lack credibility. CIC may reason that if you were prepared to lie to them once for immigration related reasons, you may be lying to them now in connection with the application for permanent residence. This could easily lead to a refusal of the application for permanent residence. If you lie and say you met here, you will have to abandon real evidence about your relationship in favour of weaker, fabricated evidence.

Since this would be an inland sponsorship, as opposed to an overseas sponsorship, you will have no right to appeal to the IRB. Instead, your only recourse will be to the Federal Court where your chances of success are likely to be a fraction of what they would have been at the IRB.

By all means try bringing your fiancée here as a visitor. Make sure that she discloses that she is engaged to you. In my view, her visitor's visa application will be a bit of long shot since the Canadian High Commission in Singapore will be more inclined to refuse it than to accept it.

However, at least she won't mess up her chances of living permanently with you in Canada.

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3. Be wary of allowing your status to expire

Q: Can you tell me what happens if you leave the country after your status expires? Are there any penalties? Will there be any issues going through the U.S.?

A: When you arrive in Canada , the officer at the port-of-entry determines how long you will be allowed to stay in the country - usually a period of six months.

In the normal case, no one from the Canadian government will scrutinize this date to see if you leave on time. Essentially, you are admitted on the honour system: we trust that you will leave when you are supposed to. If border officials wish to exercise some control over you, they will issue a visitor's record that be will stapled in your passport, and you will be asked to verify your departure upon leaving Canada. If you don't, they will come looking for you.

Unlike some countries, Canada has no exit controls. That means when you leave Canada you will not be inspected by immigration officials who might discover that you have overstayed.

However, should you come back to Canada, this may be discovered since border officials are able to discover your previous overstay by simply counting the days between your last admission to Canada and the next date in which you entered another country - evidence shown as a port stamp in your passport. This could easily complicate your re-entry because the officer might conclude you are not likely to comply with any time limits that may be imposed on your stay.

As for penalties, if you are caught overstaying while in Canada you can expect to be arrested, detained, and issued a removal order. If this is only discovered upon your attempt to re-enter Canada, chances are you will be denied entry and sent home.

As for going through the U.S., don't even think about it.

If you are without status in Canada, whether you have a visa to the U.S. or are exempt from having one, the first thing American border officials do when you are inspected is figure out what status you have in Canada. If you don't have any, not only will you be denied entry to the U.S., your U.S. visa will likely be cancelled and you will be turned over to Canadian border officials who will then be aware that you were staying in Canada illegally. You will likely be detained by immigration officials and then given the boot.

If you find yourself here without status, its best to find a direct flight back home in order to avoid difficulties in any countries through which you might otherwise have to transit through.

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4. How will the recent downturn affect immigration levels?

I was asked recently how the current economic downturn might affect Canada’s annual immigration levels.Immigration laws require our immigration minister to table a report with Parliament no later than 30 days after Nov. 1 of each year setting out how many newcomers Canada took in during the previous year and how many it plans to take on in the coming year. Accordingly, in late November 2008, newly-appointed immigration minister Jason Kenney announced that in 2009 between 240,000-265,000 new permanent residents will be accepted in Canada. This exact target was used three years in a row and hasn’t really deviated too much from the annual targets set over the previous decade or two. In setting this target, Kenney maintained that this number is necessary to respond to the diverse skill requirements “of an expanding and dynamic economy.”In his report the minister also hailed the accomplishment of his government when it passed Bill C-50, which presumably gave the immigration minister “more flexibility in processing and managing applications.”Logic dictates that the minister might now wish to avail himself of his newly acquired powers and adjust his immigration plan, given that the plan was premised upon “an expanding and dynamic economy” when, in fact, we are confronted by a shrinking and underperforming one.
The truth is that, in terms of immigrants coming here permanently, it is unlikely that the actual number that will be admitted in 2009 will be far different from the one forecasted. Even if it were, it would likely have little impact on the Canadian workforce.The reason is that as a percentage of our population, 240,000-265,000 newcomers represent less than one per cent of our national population. This number is even less significant when we factor in people who will be leaving Canada permanently during the same period.Furthermore, the minister doesn’t really have that much wiggle room. Up to 71,000 of these future immigrants will be coming to Canada under the family class as sponsored spouses, partners, parents, children, and grandparents. It would be unwise for the minister to tell Canadians that their close family members will not be coming to Canada this year due to a deterioration in our economic conditions. Another 27,200 permanent visas are reserved for protected persons who we are, more-or-less, bound to offer refuge or protection here. Then there is another 10,000 immigrants who we will be accepting for a wide range of humanitarian considerations. That will leave about 156,600 in the “economic class” of which a growing percentage is selected by the provinces and territories. Kenny is certainly not likely to take them on either.There is no doubt that the economic downturn will be more severe in countries whose economies are not as diverse and mature as ours, thereby making Canada relatively more appealing. However, that will only increase the number of applications we are likely to receive, but not the number of permanent residents that we will accept.As for those who will want to come to Canada on temporary work permits, it is likely that it will be more difficult for them to get a favourable labour market opinion from HRSDC whose job it is to make sure that Canadian workers are not overlooked when our jobs are offered to foreigners.Canadian businesses are able and willing to change direction quickly when market conditions dictate. Although the legal mechanisms exist in our immigration program to effect changes, for practical and political reasons it is not an easy option to exercise.

5. Primary applicant's death does not mean survivors must start again?

Many parents of Canadian citizens and permanent residents die while waiting for our immigration department to finalize the processing of their sponsored applications for permanent residence.In such a situation, what happens to the application of the surviving parent and their dependents?This issue arose recently in connection with the client of Max Berger, a Toronto immigration lawyer, who is a good friend and colleague of mine.His Canadian client was waiting for his parents’ sponsorship to be finalized when his father suddenly died abroad. The sponsor’s father was listed as the principal applicant. His mom was listed as his dependent.When Max informed the Canadian embassy in Cairo that the main applicant was deceased, the officer in charge of the case advised him, in writing, that the department’s stated policy was that “when the principal applicant is deceased, the spouse cannot replace him” and that “a new sponsorship will therefore be required.”Obviously, this would be quite upsetting to any sponsor since the two-step sponsorship process takes so long. First, the Canadian sponsor’s eligibility must be assessed by the Central Processing Centre in Mississauga. That takes 27 months. Then the applicant’s application for permanent residence can take another 21 months or more to be processed at a Canadian visa post abroad.Accordingly, it could take another four years or so for the sponsor to go through the whole process all over again before he can be reunited with his widowed mother in Canada.This is not the first time I have heard a visa post take this position, so I brought this to the attention of the office of the minister of immigration for comment.Surprisingly, Karen Shadd, spokesperson for Citizenship and Immigration Canada, told me that this was not, in fact, the policy of the department. She said that the surviving spouse does not have to start all over again.Although this is not mentioned anywhere in the immigration department’s policy manual, she advised that all that is required of the surviving spouse is to execute a one-page sponsorship agreement (Form 1344b) and file it with CPC Mississauga. The applicant will maintain her deceased husband’s position in line.

When I stressed to her that I have seen this seemingly erroneous position taken before, she agreed that some clarification to the field might be in order. Upon consultation with her higher-ups, she was able to confirm that the policy manual -- which she pointed out is always being updated and revised -- will soon be amended to clarify this point so that Canadian citizens and permanent residents are not mistakenly sent to the back of the line when their parent, who is named as the principal applicant, dies.

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6. What's needed to claim points for a blood relative?

Q: My uncle is living in Canada. I want to claim five points for having a blood relative living there. Please let me know what documents I would need to prove that he's my uncle. He has lots of documents to prove that he's permanently living in Canada and will provide me those, but I don't know what documents they will ask me to provide to prove that he's my uncle. A: Amongst the many requirements that applicants must meet to be approved under our Federal Skilled Worker category, they must also score at least 67 points. Points are awarded for a number of things such as education, age, abilities in English or French, work experience, etc. If you can prove that you have a qualifying relative living in Canada who is a Canadian citizen or permanent resident then you will be awarded five points for “adaptability,” since it is assumed that your relative will help you to adapt to your new life in Canada.It is important to note that your uncle cannot “sponsor” you and, in fact, does not assume any responsibility for you in any way. He does not need to “consent” to your immigration as it is his status and residency in Canada that gives you points, not his willingness to support you. Interestingly enough, there is no legal requirement that he even know of your immigration plans although it is likely that he will since you will likely need his help in gathering certain documents.What you must do is prove three things. First, you must prove his status in Canada through a Canadian birth certificate, passport, citizenship certificate, or a record of landing or permanent resident card.You must also show that he is living here. This is usually accomplished through a provincial driver’s license, a Canadian employment letter, a deed to property here, utility bills etc.As for proving his relationship, there is no method stated in our immigration laws for doing so. Normally, you will be asked to provide the birth certificate of your parent who is your uncle's sibling. You will also need your uncle’s birth certificate. Both certificates should show the same parents. This proves that your uncle is the sibling of one of your parents.When one or both of these birth certificates is not available, you will need to get creative. You should always start by producing affidavits from one or more reliable sources attesting to the qualifying relationship and the source of that knowledge. You should also have a sworn statement explaining the absence of these certificates. Officers know that in many parts of the world births are not always recorded. If your uncle immigrated to Canada, he may have disclosed the existence of your parent when he completed his forms. That might help to buttress your case. If he didn’t…look out!Remember, you bear the burden of proving your case. If you need these points to reach 67, the officer will look at your evidence much more closely because it is determinative of your application and you are relying on less than ideal proof.

I am confident that you will be fine and that you will be joining your uncle here sometime soon.

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7. Clarification on "implied status' not so clear?

Sometimes I feel like our immigration department makes things complicated just to baffle the public and keep immigration lawyers employed.A case in point.When a foreigner in Canada is about to run out of status they must submit an application to the Case Processing Centre in Vegreville, Alberta to extend their stay if they are to remain here legally.Vegreville is currently taking 74 days to issue a study permit, 97 days to extend the status of a visitor, and 73 days to extend a work permit.The frequent question that arises is: What happens if your work permit expires before you receive an extension? Can you still work in the meantime?The answer to this is pretty simple. You may still do so under the terms of the expired work permit until a decision is communicated to you. This is so because you are granted “implied status” from the time you applied until the time that a decision is communicated to you.However, what happens if the worker leaves the country briefly while awaiting a decision on an extension? When he returns to Canada, can he return to work while he continues to wait for the extension application to be processed?The relevant section of the Immigration and Refugee Protection Act (IRPA) states that “if a temporary resident has applied for an extension…the period is extended…until a decision is made.” This seems to apply to temporary workers since they are classified as “temporary residents.” It contains no limitations for brief departures.However, in an unrelated part of IRPA, i.e. the part which deals with those foreigners who are allowed to work in Canada without a work permit, the Act includes a provision which clouds the issue. It says that a person can work in Canada without a permit if they made a timely application for an extension and “if they have remained in Canada after the expiry of their work permit.”Needless to say these two provisions suggest different answers and have caused quite a bit of confusion. The first provision suggests that the worker who briefly departs Canada continues to have implied status while the second suggests that they can’t return to work in Canada after a brief absence while awaiting processing. As a result, port-of-entry officers have been dealing with this scenario inconsistently.On January 15th, the immigration department issued a bulletin ostensibly clarifying this situation. Indeed, a foreign worker who leaves Canada in these circumstances can re-enter Canada as a temporary resident but only if they are from a visitor visa exempt country or if they have a multiple entry visa. However, they will lose their right to work here “until their application for renewal has been granted.”This result makes little sense from a public policy point of view. Wasn’t the whole point of “implied status” to avoid disrupting Canadian employers and their businesses while their lawful foreign workers wait for Vegreville to process an extension request?

The answer to our question is now “clear.” However, the rationale for allowing the re-entry of a worker who left Canada with “implied status” but denying him the right to return to work while his work permit is being renewed is far from it.

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8. Changes to skilled worker program even worse than originally feared

Last week I wrote about the inherent unfairness in our immigration minister’s plan to restructure our Federal Skilled Worker program.Unfortunately, there’s more.

I explained that those who applied after Feb. 28, 2008 would be given priority in terms of processing over those who filed before that date. Strange perhaps, but true.In order to qualify for this preferential treatment, applicants would have to have arranged employment confirmed by HRSDC, one year of lawful residence in Canada as a foreign student or worker, or at least one year of experience in one of 38 designated occupations.An obvious question arises: What happens to a person who meets all of these qualifications but who applied before Feb. 28, perhaps years before?Logic suggests that his application would be processed ahead of those who applied later with the same qualifications. However, as remarkable as it may seem, the word from some of my colleagues is that this may not be the case at all. It seems that a strict reading of the minister’s instructions of Nov. 28 excludes these cases for the sole reason that they were received prior to Feb. 28. It may be too early to tell if CIC will actually interpret the instructions in this manner. However, if it does, we will have a system that treats people who applied first in an inferior way to those with the same qualities who applied later. That would mean that those who have been waiting for years, but who incidentally have the very qualities we are now seeking, will have to submit a second application just so that it post-dates Feb. 28. Of course, a second processing fee will be expected. We have come to expect a certain amount of inefficiency and unfairness in our immigration system. However, now we may need to learn to deal with sheer wackiness.On another note, the minister has now, for the first time ever, placed the Federal Skilled Worker program beyond the reach of the humanitarian and compassionate provisions of Canada’s immigration legislation. These provisions have long applied to all categories of immigration to this country. If a person wished to live here permanently but could not, for whatever reason, comply with one of our many requirements, he/she could ask the minister for an exemption from that provision provided that sufficient humanitarian and compassionates grounds exist. The skilled worker category is now the first immigration category, and possibly not the last, that will have no such flexibility whatsoever regardless of how compelling the humanitarian considerations may be.Not such a great start for our new immigration minister, Jason Kenney.