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Immigration Law

Due to the trans-global nature of business today, the mobility of personnel can be critical to a company. At Shibley Righton LLP, we work with our clients in assessing their needs and assisting them in relocating foreign workers, such as senior managers, individuals with specialized skills, and other professionals. We routinely assist employers with Labour Market Opinions and, where plausible, applications exempt from the requirements such as intra-company transferees and other treaty exempt individuals. We further assist the families of foreign workers with spousal work permits, visitor records or study permits. In addition, we also assist individuals who may face impediments to entering or remaining in Canada. We help individuals to both obtain and retain permanent residency whether it be by applying for permanent residence or retaining permanent residence. We offer personalized service, recognizing that the status of individuals and their families is fundamental to their security.

Shibley Righton LLP represents multi-national corporations, private companies and individuals from countries throughout the world. Andrea White handles the specialized needs of our immigration clients.

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Laura Stairs Head Shot

Foreign nationals who “flagpole” to validate their status in Canada may be putting themselves at risk due to a pilot project by the Canada Border Services Agency (CBSA), Windsor immigration lawyer Laura Stairs tells AdvocateDaily.com.

Stairs, an associate with Shibley Righton LLP, explains that flagpoling allows those already in Canada to obtain and validate their immigration status by briefly travelling to the United States and back. While it can take months for the immigration department to process the same application, border officials can do it in about 30 minutes.

“I'm working with someone on a work permit application right now, and online processing takes 84 days,” Stairs says. “You can be sitting there waiting for that long, or you could actually have a decision on the same date that you finish your application. For people who can make it work, going to the border is much more efficient.”

She says the CBSA has limited the practice at some land ports of entry which has been chaotic for temporary residents in Canada, according to reports. Stairs says the change is another reason to consult a lawyer first.

In a pilot project that began in June 2017, CBSA started to limit flagpoling, restricting it to Tuesdays, Wednesdays and Thursdays at the Queenston-Lewiston, Rainbow and Peace bridges in Ontario. Quebec is now also part of the project.

The agency says high volumes and excessive wait times at ports of entry necessitated the change.

Stairs advises people planning to flagpole to be aware of the potential risks.

“The first thing that's important for people to understand is that you are actually crossing the Canadian border, going to the United States and asking the U.S. officer to turn you around,” she says. “We always warn our clients that those officers don't always understand what it is you are doing, and it can actually result in someone receiving a refusal order, which can have implications on future immigration applications to the U.S.”

The pilot project has caused consternation among immigration lawyers because many foreign nationals were left in the dark about the change, Stairs says.

“We have a number of concerns, but one of the main issues we are seeing is that CBSA hasn't publicly advised people of these changes to the periods in which they are able to flagpole,” she says. “What happens is an individual shows up and is told that their application will not be processed if they are outside of those designated times.”

If that happens, Stairs says there are implications for people's health and social insurance cards.

So far, she says there is no indication if the policy will end or be implemented at other border crossings.

“It's been two years, so I don't necessarily expect it will change soon," Stairs says. "However, we see with immigration issues that the policy changes all the time, so I would not be surprised if this project is either expanded to more borders across Canada or eventually cancelled due to the number of complaints that they're receiving from lawyers and people trying to flagpole.”

She advises foreign nationals to educate themselves.

“Understand which border you're working with and the hours they are open,” she says. “That information isn't readily available. Lawyers have access to information through our networks and experience, so I would recommend speaking with a lawyer given the frequent changes.”

Date_Published
2019-03-27
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Laura Stairs Head Shot

Though the federal government has set the stage to accept 350,000 immigrants in a single year, that load might place another strain on the already complicated and taxed system, Windsor immigration lawyer Laura Stairs tells AdvocateDaily.com.

One of the main issues of ramping up so quickly by the year 2021 is the availability of staff to actually manage the growing number of applications, say Stairs, an associate with Shibley Righton LLP who frequently represents clients seeking to live and work in this country.

“The more people they commit to accepting, the longer it's going to take to assist our clients in actually getting into Canada if the resources are not provided to support that growth,” she says.

Global News recently reported that the government is seeking people to fill employment gaps, particularly those who have education, skills and experience working as information systems analysts and consultants, software engineers, computer programmers and interactive media developers, financial auditors and accountants, and administrative assistants.

Immigration, Refugees and Citizenship Canada (IRCC) will continue to process applications for permanent residents, spousal permanent residents, humanitarian and compassionate categories.

“They will also have to increase the number of IRCC staff and resources, or it's going to result in a great deal of frustration for immigrants attempting to come to Canada,” Stairs says.

It can already be a burden on immigration lawyers trying to figure out how to best make each applicant fit into already complex immigration programs, she says, although some may be able to apply through the Express Entry system.

“The Express Entry system was designed to streamline economic immigration in Canada,” Stairs says. “It has very good intentions, and you can see over the years how the program has processed people significantly faster. It’s a step in the right direction, and I think the government is continuing to work on it.”

Stairs points out that within the Express Entry system, there are particular qualifying streams: the Canadian Experience Class, targeted toward people who have studied or worked in Canada before; the Federal Skilled Workers Class, which aims to bring in immigrants to fill jobs that will benefit the Canadian economy; and the Federal Skilled Trades Class, where specific trades seek to bring workers.

Moreover, Stairs explains that individuals are assigned points under Express Entry for categories such as age, if there’s a job offer, experience, education, and language. And there's also a category for provincial nomination as each province has its own programs and systems for qualification.

In terms of the prospect receiving a job offer, they might have to pursue a Labour Market Impact assessment, (LMIA), a complete review of the job offer, to determine whether or not they would benefit the Canadian economy with that role, she says.

“It’s a very complex system that is difficult for individuals to navigate on their own, which is why I have a job. But, it can be very complicated to give advice to people on how they can fit under all of these programs,” says Stairs, who also co-founded the Windsor Refugee Sponsorship Support Program.

The entire system is further knotted in “dealing with visa posts and immigration offices around the world,” where there are “different expectations and standards being applied,” she says.

In addition to more IRCC staff to handle the new load, clearer communication and consistency throughout the program, “would benefit both immigration lawyers and their clients,” Stairs says.

Date_Published
2019-01-04
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Laura Stairs Head Shot

CHARLOTTETOWN — Prince Edward Island is scrapping a controversial business immigration program, which prompted federal investigations alleging hundreds of applicants never settled on the Island.

The provincial government said Wednesday it will no longer accept applications from immigrants looking to set up a business on the Island in the entrepreneur stream of the Provincial Nominee Program.

The immigration program has faced criticism for granting permanent residency status — a coveted step towards full citizenship — before businesses were set up and people actually moved to P.E.I.

Under the program, the applicants provide the Island government with a $200,000 refundable deposit and commit to invest $150,000 and manage a firm.

In an interview with AdvocateDaily.com, Windsor immigration lawyer Laura Stairs says the design of P.E.I.’s program essentially allowed people to buy permanent residence status without following through on the requirements of the program, and that redirecting the focus to a work permit-based program will allow the province to better fulfil its mandate.

“P.E.I. will continue an entrepreneur stream requiring individuals to operate their business in the province for a period of 12-24 months on a work permit prior to receiving the nomination for permanent residence,” says Stairs, an associate with Shibley Righton LLP.

By comparison, she says Ontario and B.C.’s entrepreneur programs require individuals to meet a number of criteria, including starting and actively managing a business on a work permit prior to receiving a nomination by the province.

“These programs also require the individual to have a high net worth, live in the province for at least 75 per cent of the time the individual is on a work permit, make a minimum personal investment in the business and demonstrate job creation,” she says.

Stairs says the hallmark of a well-designed entrepreneur immigration program is supporting the individual through the entire process — from establishing the business through to their nomination for permanent residence.

“It should start with a business plan that demonstrates the individual has done substantial research and is aware of the market in the region in which they intend to establish their company,” she says.

“The province should provide letters of support for a visitor visa so the individual may do an exploratory visit and for a work permit to establish the business, which is the case in BC. Requiring that the individual prove they intend to operate their company and live in the province by obtaining a work permit is also a key element of the entrepreneur programs that more successfully fulfil their mandate.”

Individual provinces design nomination programs to support the type of immigration they need to encourage growth and development, Stairs says.

“Alberta, Saskatchewan and Manitoba, for example, all have farm-investment categories to encourage farming in those provinces,” she says. “There are slight differences in the entrepreneur programs across Canada, but they usually include little things like the amount of investment and net worth required — they generally require the individual to start the business and actively manage it while on a work permit prior to receiving the nomination.”

A spokesman for the Office of Immigration says in 2016-17 more than half of all the 269 applicants who had ``completed their agreements'' forfeited their deposit and never opened a business, raising $18 million for the small province.

In addition, last year The Canadian Press reported on how three international students were asked by owners of businesses created under the program to return a portion of their wages to the business immigrants. In one case, a student said he was fired when he refused, and in two other cases, the students said they agreed to give back a portion of their income in cash.

Progressive Conservative Leader James Aylward said Sept. 12 the program bred public distrust and should have been cancelled years ago.

``It never passed the sniff test,'' he said in an interview.

``Our retention rate was dismal ... The government raked tens of millions of dollars from defaulted deposits.''

The province had said it was conducting a review into the program, shortly after a series of investigations by the Canada Border Services Agency became public.

The Canadian Press also recently reported on a search warrant application by the agency that alleged hundreds of people gained permanent residency in Canada by using local addresses where they didn't live, using the PNP entrepreneur stream.

An investigator alleged 462 applicants to the provincial nominee program used Charlottetown homes belonging to two Chinese immigrants over the past four years as ``addresses of convenience.''

The investigator also said she suspected the immigrants didn't come to the Island and settle, contrary to the requirements of the provincial program.

Those allegations, which have not been proven in court, came two months after two Charlottetown hoteliers were charged with aiding in immigration fraud, with the CBSA alleging 566 immigrants used the addresses of the siblings' hotel and home.

The siblings have pleaded not guilty to immigration fraud charges, and their lawyer, Lee Cohen, has said there will be discussion with prosecutors about the sworn statements provided by the two accused.

Cohen says he's suggested ``the possibility that the statements were not voluntarily given'' in the case.

Chris Palmer, the province's minister of Economic Development, said in an interview that he wasn't forced by the federal government to shut down the program, despite the high-profile investigations.

``The feds didn't intervene and tell us to do this, no,'' he said.

Rather, he said it was due to his department's disappointment with its results in retaining immigrants on the Island.

``We weren't satisfied with it as our rates of retention weren't as high as we wanted them to be,'' he said.

However, Richard Kurland, an immigration lawyer based in Vancouver, said he sees a relationship between Ottawa's probes and the shutdown of the program.

``Trials involving the P.E.I. program start soon, so no surprise to see the P.E.I. government shutting down the program before all is revealed,'' he wrote in an email.

Kurland has long argued the Island's system should mirror British Columbia's program, which approves a business project first, makes the person spend two years on a work permit to ensure business success, and then requires the applicant to live near the business at least nine months a year.

``Only after that is done and the business is successful will the province hand over a 'nomination certificate' that lets the person apply for a permanent resident visa,'' he wrote.

``P.E.I. had it backwards, handing over the 'nomination certificate' first. That's not the way to go and the ... design flaw gave rise to a lot of problems.''

``Keep the candy until the person lives up to their promises.''

The province is noting that the entrepreneur stream is only a small part of the total number of immigrants it nominates.

It will continue to have a program where it nominates immigrants for work permits, where they will only be granted permanent residency if they fulfil their commitments to set up a business.

It will also continue to nominate immigrants who fill the province's labour needs.

The number of nominations accepted under the nominee stream currently totals about 150 people, which is about 15 per cent of the roughly 1,070 provincially sponsored immigrants expected to be nominated this year.

Date_Published
2018-09-14
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Laura Stairs Head Shot

A lawsuit filed by eight Filipino migrant workers against a job recruiter and a farm in Ontario casts light on how easy it is for vulnerable people to be tricked into paying for jobs and denied the protections provided by Canadian law, says Windsor, Ont., corporate and immigration lawyer Laura Stairs.

The Toronto Star reports eight seasonal agricultural workers are suing a Toronto-based company and a farm in East Gwillimbury, Ont., alleging they were charged thousands of dollars in fees for legal advice and Labour Market Impact Assessments (LMIA), which are prerequisites for obtaining most work permits, before being sent to work at the farm. In small claims court, the workers — who say they never received the work permits and admit they worked illegally on visitor visas — are seeking to have the money they paid refunded.

Stairs, an associate with Shibley Righton LLP, says it is important for all foreign workers to know that it is employers’ responsibility to conduct and pay for LMIA applications. These documents are required by the Canadian government to prove there is a need to bring in a foreign worker because there is no Canadian to do the job and employers are not permitted to pass these costs on to workers, she says.

However, many migrant workers who come seasonally to work in agriculture do not speak English, and have difficulty understanding what the rules are, Stairs says. They may also be so desperate for work that they are willing to pay, she tells AdvocateDaily.com.

Her advice to anyone working in Canada under either a temporary work permit or the Seasonal Agricultural Worker Program:

“No matter what your employer tells you, you have to have a work permit. It should be in your hands. And employers are not allowed to take away your work permit or your passport. Those are your documents, and you are responsible for them,” Stairs says.

Recruiters and employers are not legally allowed to charge the worker for the LMIA, she adds.

“The LMIA application is a $1,000 fee per worker that the employer must pay. They cannot recoup those costs from the employee,” Stairs says.

But often, she says employers will use recruiters that charge workers fees to match them with job opportunities, and this gives employers the opportunity to indirectly pass on the cost of LMIA applications.

The LMIA sets out what employers are looking for and the labour shortage they are seeing, Stairs explains.

“So if we look at farm work specifically, the LMIA would set out that the employer needs someone to do a specific job," she says. "It requires the employer to undertake a process of recruitment — they have to try to recruit Canadian citizens and permanent residents to do the job, and advertising for the position has to last at least three months,.”

Once they’ve identified there are no Canadian citizens or permanent residents available or willing to take the job, employers are allowed to submit the LMIA application. It must include information such as the number of employees at the company, the enterprise’s general revenue, and evidence the pay and benefits being offered to foreign workers are no less than the prevailing compensation for Canadians and permanent residents working in that region at that job, Stairs says.

The county around Windsor employs thousands of migrant workers each year to plant, care for and harvest vegetables and fruit. Canada-wide, the number of migrant farmworkers is more than 50,000 a year, double the number in 2000, according to a Toronto Star report last year.

Stairs says she has seen many cases similar to the one involving the recruiter and the farm, and doubts that publicity will have much impact.

“The struggle we have is that most of the employees or potential employees often don’t speak English, so they’re not going to read the articles before they come to Canada, or hand over thousands of dollars in order to come here,” she says. “It’s only afterwards that they get linked up with community organizations, with other employees in the company they’re working for, that they start to see what they are entitled to and that they are being wronged by their employer.”

It would be of more benefit for employers “to be actually held accountable,” she says.

There are organizations advocating for the rights of vulnerable farm workers, including Justicia for Migrant Workers (J4MW) in Toronto, which sends volunteers to the Windsor area and elsewhere to meet with workers and give them information about their rights, she says.

Date_Published
2018-06-20
Description

Laura Stairs Head Shot

Community has always been important to Windsor corporate and immigration lawyer Laura Stairs.

An associate with Shibley Righton LLP, Stairs studied global development at Queen’s University and worked for the the Kingston Roundtable on Poverty Reduction while she lived in the city.

“I was very interested in local issues and community activism, and this was a great way to get involved and make a difference,” Stairs tells AdvocateDaily.com.

It was during that time that she first seriously considered the possibility of a legal career after working closely with a lawyer on the board of the roundtable

“I found the skills she had were particularly helpful in the work we were doing, which got me thinking that law was something I could do to have a positive impact on the community,” Stairs says.

During a decorated spell at the University of Windsor’s law school, she received the Transnational Law and Justice Network Fellowship, allowing her to complete an extensive research project for Amnesty International focused on international criminal law, and was also awarded the Stitt Feld Handy Social Justice Fellowship, which resulted in a 10-week internship at the Legal Resources Centre in Johannesburg, South Africa.

“South Africa is an interesting place to study law because they have a very comprehensive constitution which grants many more rights than others around the world,” Stairs explains. “The right to housing is explicitly granted and so much of my work related to constitutional cases that challenged the government to put that right into practice.”

Following her graduation in 2016, she stayed in Windsor, where local companies are now benefiting from her work.

“Windsor has a great variety of cool young businesses and I feel like the entrepreneurial scene is really thriving,” Stairs says. “It’s exciting to support that kind of work and to be able to see the impact it’s having boosting growth in our community.”

She also developed an interest in immigration law while at school, picking up the Student’s Law Society Access to Justice Award for co-founding the Windsor Refugee Sponsorship Support Program to assist new arrivals as they adapt to their unfamiliar surroundings in Canada. At Shibley Righton, she’s added another dimension to her work in the area, acting mainly for businesses bringing in skilled foreign workers to meet labour demands.

“I do a great deal of work permits and also some family reunification and visitor visas,” Stairs adds.

She says her varied experience informs her current practice, which includes some wills and estates and real estate law, in addition to her corporate and business immigration work.

“The work I was doing before required some appreciation of the social context of the law, which is important to remember no matter what type of law you are doing,” Stairs says. “It has helped me to look at the big picture, and always be mindful of the people who are involved in what I'm doing,” Stairs says.

 

Date_Published
2018-06-04

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