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< Back to current issue of Immigration Daily

The Canadian Option
by Cyrus D. Mehta

Experienced immigration counsel routinely considers all reasonable strategies to accomplish their client's goals of obtaining an immigrant visa.

Often clients are not so much interested in immigrating to a particular country be it Canada or the United States as they are intent on emigrating to any country which can offer them a more promising future than they anticipate at home.

For a myriad of historical and political reasons, Canadian and American immigration policies are different. One consequence of these differences is that while American eligibility criteria is becoming more restrictive, Canadian eligibility requirements remain comparatively permissive and liberal.

Passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 severely restricts many options, and immigration to Canada may now be the only option available to many clients.

The Canadian system is a merit-based system built around an "occupational demand" model. As a result, it is often possible for individuals to self-petition without employer or family sponsorship. In other words, no job offer is needed.

There are three main Canadian immigrant categories; the skilled worker category, the business category and the family class category.

Skilled workers are selected on criteria which recognize labor market skills such as education and occupational experience.

Admission standards are based on the principle that immigrants possess personal characteristics such as motivation and adaptability as well as occupational skills and the academic knowledge necessary to contribute quickly to Canada's social and economic prosperity. Therefore, it is assumed that immigrants who are well educated and have experience in occupations in demand in Canada will find employment. Holders of H-1B, J-1, L-1 and O-1 visas are often eligible in this category.

Skilled workers are evaluated on a point system, which is deceptive in its apparent simplicity. For example, in order to fully understand current selection factors such as the Education and Training Factor (ETF), applicants would first require access to a four-volume manual called the National Occupation Classification System (NOC). The NOC contains thousands of pages which have to be systematically researched.

There are currently three-business immigration sub-categories open to investors, entrepreneurs and self-employed persons.

Investors must have a personal net worth of at least $800,000 CDN (approximately $500,000 USD) earned through the applicant's own endeavors, must have successfully operated, controlled or directed a business or critical departments in a business and must invest a minimum of $400,000 CDN (approximately $250,000 USD) in an approved investment which investment is irrevocable for a period of five years. Seventy five percent of this investment may be financed.

There is no stated minimum investment for entrepreneurs or self-employed applicants who need only demonstrate the ability to operate a business and sufficient capital to establish their chosen business. Entrepreneurs must also manage the business on a day-to-day basis and hire at least one Canadian worker.

Neither family sponsorship nor a job offer from a Canadian employer is a condition precedent for eligibility in any of the above categories and sub-categories.

Family class applicants sponsored by an eligible relative are admitted on the basis of relationship and are processed on a priority basis.

Medical and criminal admissibility criteria applicable to all classes of immigrants are similar in both the U.S. and Canada.

While Canadian immigration establishes target figures in each category, there are no numerical caps or limitations in effect at this time.

Due to the statutory bar provisions triggered by even short periods of unlawful status in the U.S., time is of the essence. Some applications for permanent residence status in Canada may be successfully processed in under twelve months, some cannot.


About The Author

Cyrus Mehta, a graduate of Cambrdige University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities, and may be contacted at 212-686-1581 or info@cyrusmehta.com. His website is www.cyrumsmehta.com

 



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