The Future of Canadian Immigration
With borders being forced to close, the COVID-19 pandemic has seen countries that thrive off immigration devising plans on how they will recover in the next few years.
Being a popular destination for business people across the globe, and known as a country that opens its arms out for refugees, Canada announced plans late last year that will hopefully see an increase in immigration levels over the next few years. Is now a good time to consider moving? What are the blips you may face along the way? We speak to Lev Abramovich and Ksenia Tchern of Abramovich & Tchern PC (atimmigrationlaw.com), two Toronto based, immigration lawyers whose work extends further than helping you fill in an application, on the changes we can expect and what to look out for.
- During the last quarter of 2020, the Canadian Minister of Immigration announced plans to significantly increase immigration levels in 2021-2023 to help the Canadian economy recover from the COVID-19 pandemic. What are the plans that are on the horizon and do you expect them to have a positive impact?
The impact of the COVID-19 pandemic on global migration patterns, generally, and on Canadian immigration laws specifically, can’t be overstated. Canada is a country whose population growth is dependent on immigration, and the plans announced in October 2020 by Canadian Minister of Immigration Marco Mendicino underscored the Liberal government’s commitment to immigration.
Mendicino announced that Canada aims to bring in more than 400,000 new permanent residents each year over 2021-2023: 401,000 in 2021; 411,000 in 2022; and, 421,000 in 2023. Most of these immigrants will be in the economic class. For 2021, the breakdown is as follows:
- 232,000 immigrants in the economic class
- 103,500 in the family class
- 59,500 refugees and protected persons
- 5,500 on humanitarian and compassionate grounds.
Since then, additional initiatives have been announced and we have seen a massive Express Entry draw allowing immigrants with a significantly lower CRS score to apply for permanent residence.
Is this good news for people looking to immigrate to Canada? The answer, as is so often the case with immigration law, is… it depends.
The pandemic provided immense challenges for immigration policies and processes, and Immigration, Refugees & Citizenship Canada (IRCC) could have handled many of these challenges better. It took too long for the government to adjust to the new reality and to address the post-graduate work permit situation or to resume the processing of certain applications. IRCC’s decision to return as many spousal sponsorship applications as possible based on minute issues (and sometimes no issues at all) was also unfortunate.
We hope that in addition that the Liberal government’s commitment to high immigration numbers will be supported by new well thought-out programs as well as a general willingness to look at and reassess those parts of the Canadian immigration system that are archaic and serve neither Canada nor potential new Canadians.
We also hope to see COVID-19-specific immigration programs that will allow those who are already in Canada to transition to permanent residency based on employment as well as humanitarian-driven criteria.
We’d also like to see structural changes in the long-term, such as the creation of further centralized processing centres, the abandonment of the inland/outland distinction for certain classes of applications, as well as the requirement for paper-based spousal sponsorships and temporary residence permit applications which can lead to backlogs.
And if we’re talking really big picture, we’d love to see immigration programs that look forward to Canada’s future needs, bringing in innovation and—as immigration law is about people—innovators.
More needs to be done to attract entrepreneurs and investors. We have some tools in that regard through the Start-Up Visa program at the federal level and some provincial nomination programs, but as a firm that works closely with business people, we think more could be done in this area.
In addition, while the pandemic has accelerated the Refugee Protection Division’s modernization, further resources are required to ensure that those seeking protection can have their claims heard in a balanced manner and within a reasonable time frame.
Overall, Canada’s immigration system is balanced and reasonably robust, and the future appears to be quite bright, but as proud Canadians, we believe that more can be done to ensure that Canada is attracting the best and the brightest, while at the same time maintaining our commitment to human rights.
- It is expected that 60% of all new permanent residents will come through economic streams. What is the business visa application for immigrants like – i.e., is it often a smooth process? What issues can be presented along the way?
Because immigration is such a critical part of Canada’s population and economic growth, Canada has been favouring economic stream immigration pathways for some time now.
We have many economic immigration programs based on the applicant’s past or current employment. These include the Federal Skilled Worker, the Canadian Experience Class, and the Federal Skilled Trades Worker Class, which all fall within the scope of the Express Entry system, as well as work permit applications under Temporary Foreign Worker and International Mobility programs which could be utilized as pathways towards permanent residence. In addition, we have numerous provincial nominee streams that are driven by economic considerations.
In short, there are many potential entryways to Canada via economic streams.
Canada’s business immigration streams are a subset of this large economic class and include the Start-Up Visa program, which is designed to drive innovation by linking entrepreneurs with venture capital funds, and the Self-Employed category, which allows self-employed individuals with cultural, athletic, or farming experience to apply for permanent residence.
Until 2014, there were two additional federal business programs, the Investor and Entrepreneur streams, but these were shut down and never replaced. Subsequently, immigration lawyers started using the Owner/Operator LMIA stream as well as other work permit categories to design Express Entry based pathways towards permanent residence for entrepreneurs.
Unfortunately, Employment and Social Development Canada has recently announced changes to the Owner/Operator LMIA stream which fundamentally changes the nature of this program and reduces its usefulness. Fortunately, there are robust alternatives to this program, but we do want to see additional programs introduced on the Federal level.
In short, there are many potential entryways to Canada via economic streams. We see our role in the business immigration process very much as that of guides and scouts. We know what is at stake for our clients, so it’s our job to stay on top of all the moving parts, anticipate as best as we can what could change or be challenged, and align our clients’ immigration needs with their business plans.
- In addition to the commitment to increase the numbers of new immigrants, IRCC is currently undergoing a large automation process; can you share more about this and what impact you expect it to have on clients?
We are half-excited and half-terrified about this process, to be honest. The backlogs created during COVID-19 in the spousal sponsorship, work permit, and temporary resident permit applications illustrated that IRCC had to up its infrastructure and technology game. So any initiatives that lead to faster processing times are great news.
But, speed is not everything, and not every immigration application is simple enough that an AI algorithm can evaluate it accurately. Some of IRCC’s current letters and checklists already appear devoid of humanity and frustrate our clients. Can a machine determine whether someone has a sincere interest in immigrating to Canada as a business person or whether a marriage is genuine?
There will be some bumps along the way as IRCC goes through its automation process. Clients with straight-forward applications will probably benefit from the automation. Those with more complex cases will require the support of immigration lawyers.
We firmly believe immigration law is about people. If the automation processes serve the people and make the immigration process smoother and faster for applicants, we will be their most ardent advocates. But it will take a while to get there. In the near-term, we expect it to lead to rejections that will require human-facilitated, old school appeals and advocacy.
Fortunately, that’s something immigration lawyers excel at.
- Canada continues to position itself as a top destination for global talent; do you think its immigration system is a result of this?
We have a good immigration system, but we can do better.
The Express Entry program has been an overall success, but we need to do more to attract entrepreneurs and business immigrants. We need to launch new business programs that are committed, long-term, to building innovation via immigration. The Start-Up Visa program is a great idea that needs better implementation—specifically, shorter processing times. Time is money to entrepreneurs, and government agencies need to make more of an effort to understand the realities of business.
That’s also true for the LMIA process which is filed with red-tape and bureaucracy. For example, we have yet to meet an LMIA client whose independent and good-faith recruitment effort met ESDC’s requirements, because they operate in the realm of bureaucratic procedures, not business reality. In addition, certain LMIA categories absolutely need recruitment exemptions (which used to exist).
We also need to do more to attract tech talent that is tired of the US H1B process. We should relax the pathways to permanent residency for international students. And we should continue the expansion of Provincial Nominee Programs giving provinces higher quotas and greater power over their immigration needs.
Canada is a great country with a balanced immigration system but as the government increases our immigration targets, we must make additional invests in programs, infrastructure—and people power.
Time will also tell whether the effects of the pandemic on immigration patterns will just be a one-year dip.
- The first seven months of 2020 saw nine out of 10 Canadian provinces record a drop in immigration above 40 per cent. How will this continue to have an impact in months to come?
The 2020 immigration numbers reflect the reality of the pandemic. Borders were closed. Immigration dropped. No further analysis necessary. What is important here is the response of the Canadian government—first, announcements of overall increased targets, and second, actions such as its 13 February 2021 Express Entry draw, the largest one ever. This is usually a highly competitive process that targets skilled workers who achieve a certain score. Pre-COVID, the cut-off point for qualified entrants was around 465 points. During 2020, it went as low as 431. To qualify for the 13 February 2021 draw, applicants had to meet a score of 75. Some 27,332 applicants were invited under this scheme (the typical draw invited around 3,000-5,000 people).
This certainly is one way of addressing falling immigration numbers. As long-time immigration practitioners committed to serving both the best interests of our clients and of Canada, we are very concerned about this approach. It turns what used to be a well-structured, comparatively fair system into a politics-driven lottery ticket that does not serve skilled immigrants—or Canada’s economic recovery. The fact that IRCC did not provide notice about this radically revised approach, left many applicants, who could have received invitations to apply, on the sidelines.
Time will tell whether this was a somewhat clumsy temporary measure or an ongoing pathway the IRCC has chosen to address the COVID-19 caused immigration shortfall of 2020. We hope it is the former.
Time will also tell whether the effects of the pandemic on immigration patterns will just be a one-year dip. We believe that even if global vaccination programs continue at their planned pace, 2021 will continue to see processing challenges and Canada may not meet all of its immigration targets.
For 2021 immigrants, entering the country under whatever stream, it will be more critical than ever to go through the process with a skilled immigration advocate.
- How has the practice of immigration law been affected by COVID-19?
The impact of COVID-19 on the practice of immigration law cannot be overstated. While we’ve experienced a lot of frustrations about some of IRCC’s responses to the pandemic, we’ve been impressed by how the Canadian immigration bar has repositioned. Good immigration lawyers know what is at stake—people’s lives—and we adapted at the speed of reality. We’ve always prided ourselves at being more than just lawyers to our clients: we’re trusted advisers, we’re part of the team that makes their dreams come true. That is a responsibility we take very seriously. So we stayed on top of updates, provided strategic guidance to clients, and, for some clients, we saw opportunities in the middle of the pandemic-caused crisis. We had one complex file in particular that had been in litigation for two years—more than four years in processing—and as COVID-19 threatened to grind its process to a halt, we got a mandamus application to get the IRCC moving, with the application being approved (subject to normal admissibility checks) a few days ago.
We also found an uptick in Humanitarian and Compassionate as well as Temporary Resident Permit applications, and a general rise in urgent matters—companies and individuals who thought they were doing a run of the mill immigration application suddenly found themselves facing unprecedented circumstances. And, of course, we found ourselves advising on remote work arrangements, and how they impacted employees’ residency status given the “borders-closed, everyone’s working from home” reality of the pandemic.
- What do you foresee the next few months being like for your clients?
In a word: challenging. We foresee advising clients on COVID-19 testing and the evolving quarantine procedures, as well as possibly the implementation of vaccination passports. We will continue to deal with issues related to employer compliance, work location and remote work, and we expect that we will continue to need to get employment counsel involved. We also expect to see more family reunification files as Canadians living abroad seek to return home. On the business immigration front, we expect to do a lot of back and forth between our clients and IRCC and ESDC as they implement their new programs to ensure that our clients’ needs don’t fall between the cracks of our system’s rather complex and occasionally inflexible bureaucracy.
ABOUT LEV & KSENIA/PERSONAL Q&A
Why did you pick immigration law?
KSENIA: I started my legal career in the area of personal injury/tort law, but it just wasn’t clicking for me. When I took an immigration law seminar during my Master of Laws program, it was like a lightbulb went off in my head. This was it—this was the thing I was supposed to do. I get to work with people from the globe, who come from various cultural backgrounds and speak different languages, and that’s exciting. Helping them navigate the complexities of immigration law and policy so that they can achieve their personal and professional goals in a new land—there’s nothing more rewarding.
LEV: I’m an immigrant myself so I was interested in immigration law even before I went to law school. Seeing how the immigration experience changed my family’s life for the better—I wanted to help others achieve the same. After law school, I articled at a multi-practice law firm where I was exposed to a few areas of law before deciding to focus solely on what drives me, immigration and refugee law. I enjoy working with people, and I enjoy challenging unfair decisions. I get excited about protecting the integrity of the system and seeing my clients succeed in Canada.
What inspires you on a daily basis?
KSENIA: Calling clients and telling them that their application has been approved is the best feeling ever. I live for those moments.
LEV: Being able to effect positive change. Seeing families reunited. Refugees granted protection. Companies getting the workers they need to grow or maintain their operations.
What made you decide to open your own law firm?
KSENIA: Immigration law is about people, and in large firms, that focus can be lost. I wanted to be in control of how I provide my services to clients. I wanted the freedom a boutique practice would give to really do my best for my clients.
LEV: Immigration law requires a specialized focus. I think we best serve clients in a dedicated, boutique-style environment, in which immigration is all that we do, and in which we’re small enough to be nimble, responsive and provide personalized service to clients. I’m also an entrepreneur at heart—that’s why I love the business stream immigration part of our practice—and the idea of building my own firm appealed to me.
What challenges did you face opening your firm, and how did you overcome them?
LEV & KSENIA: We decided to open our law firm despite the pandemic. Working with continuously changing policy and directives as a result of the COVID-19 pandemic has been a challenge for sure. However, daily reviews and connections with our wonderful body of Canadian immigration lawyers kept us on top of the situation and allowed us to advise clients effectively during this unprecedented time.
And yet, much as it has been challenging, it also meant we hit the ground running with no pre-conceptions to get rid of. We started off prepared for remote work and uncertainty. We knew our clients were facing the exact same challenges, and that made us work all the harder for them.
What motto do you live by?
LEV: We both believe immigration law is about people, and that stems from a core value we both share—we put people first. That’s why we decided to team up as Abramovich & Tchern. People first. Get that right, and everything else will follow.
KSENIA: Practice what you preach. And we always preach that listening, engaging, and showing people empathy is the root of our practice.
If you had the power to change one thing about your work/immigration law, what would you pick and why?
KSENIA: I’d want to see self-employment work in Canada to be counted towards work CEC experience when applying for permanent residency under the Express Entry stream. It baffles that self-employed individuals, who contribute to the economy by creating jobs and paying taxes, cannot claim that as work experience.
LEV: I’d abandon the cap on the parents and grandparent’s sponsorship program. Families need to be together. Let’s help them do that.
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Abramovich & Tchern PC is a Canadian immigration law firm based in downtown Toronto that provides a full range of corporate and individual immigration services, from routine application processing to high-stakes immigration litigation. The firm works with international and Canadian businesses on strategy and compliances issues related to foreign workers and employee immigration. Its clients include businesses, employers, and individuals from the US, Latin America, India, the former Soviet republics, and around the world. It also provides United States immigration solutions.
Advocacy and client-focused, the firm’s founders believe a lawyer is first and foremost a client’s advocate. Its lawyers advocate for their clients at all levels of their immigration process. They use their litigators’ lens to structure application packages that tell a persuasive story and convince decision-makers. And, if things go wrong and their clients need to challenge a visa rejection or appeal an immigration decision, Abramovich & Tchern lawyers have the skills and experience to represent their clients before all relevant Canadian courts and tribunals.
Founding partners Lev Abramovich and Ksenia Tchern founded the boutique because they believe immigration law is about people—their lives, their dreams, and their future. Their immigration law firm allows them to deliver people-focused immigration solutions in the ever-changing Canadian and US immigration law landscape.