An Extremely Complex Immigration Problem - Can Anyone Help?

[Smithsboy]

I sincerely hope that the expertise on this forum can help solve my very complex immigration problem.

I am a British Citizen, Male, 42, and a single father of a 15 year old son. I arrived in Canada at Calgary Airport in February 2012, in possession of a positive LMO for a Live-in Caregiver (NOC 6474). My prospective employer is my older sister, a PR of Canada for 8 years. The responsibility of the role, is to provide care for my 18 year old autistic niece, and secondly, my 12 year old nephew. My sister was abandoned by the children’s father a couple of years ago, and her job requires her to travel across Canada fairly frequently throughout the year. Myself and my family have visited many times over the last couple of years to provide support and assistance.

My career to date has been diverse, with my main area of employment being Health & Safety Management/Inspector/Advisor (NOC 7216), also Manufacturing Management/Supervision, and Caring for my elderly parents and also my niece, at various stages since she was 3 years old.

On arrival at the airport, during an evening in February, we were informed that there was a problem with my medical (which i took in August 2011 in the UK, at the request of Immigration), and i would not be issued with the 2 year work permit. The next hour or so was all a bit of a blur! I am, and always have been, in very good health. Finally, i was issued with a 2 year work permit, due to Immigration not recognising the code used for the rejection of my medical, and being out of office hours, not being able to contact the appropriate department. What i can remember, is that no information was given as to the reason for the initial rejection.

And so my life in this fantastic country started, and i enjoyed my work immensely. My son started High School in Grade 10 in March, and we spent the next couple of months assessing the possibility of applying for Permanent Residence, which we duly did in May.

In June, i received an email from the Centralized Intake Office informing me that my application had been rejected for the following reasons;

1, Although you have indicated that you have Arranged Employment, the occupation listed on the Labour Market Opinion - 6474 does not meet the 0, A or B skill level requirements of Regulation 82(2)a of the Immigration and Refugee Protection Act (IRPA).

2, As well you have indicated work experience in NOC 7216. A maximum of 10,000 complete Federal Skilled Worker applications, without an offer of arranged employment, or a maximum of 500 complete Federal Skilled Worker applications per National Occupation Classification (NOC) code will be considered for processing each year. Your application was received after the maximum of 500 complete Federal Skilled Worker applications per NOC 7216 was reached.

When i checked my work permit, attached to my passport, it does indeed state the occupation as Babysitters, Nannies & Par Help, and not Live-in Caregiver, as per my positive LMO and also my Contract of Employment.

I suddenly feel quite concerned, and more than a little anxiety. As a single father, my obligation to provide stability for my son is under threat. It seems that the work i am currently doing in Canada will not be considered Arranged Employment for a future FSW application, and neither will it be considered Skilled Work Experience, if i want to apply under the Canadian Experience Class.

I would be forever grateful if any forum members could answer the following questions;

1, Can Canada Immigration withhold details of my failed medical, without informing me at any time?

2, When my 2 year work permit is about to expire, and my application for a further work permit is considered (My sister has assured me that she will require me for at least the next 4 years), will this mystery code for the failed medical rejection come back to haunt me...will i require a further medical?

3, My son will be in his final year of High School, and preparing to graduate when the initial 2 year period is up (Feb 2014). Is there a possibility that Immigration could order our removal from the country, if all applications/extensions have failed?

4, Without an offer of Arranged Employment for a FSW application (if indeed my current position does not qualify), i am dangerously close to failing to reach the required 67 points. It’s all depending on whether my 2 years College/University experience will be treat as such, due to large parts being home learning. The qualifications gained were Certificate in Management (ILM/NEBSM) and the NEBOSH General Certificate (Health & Safety). What are my realistic chances of obtaining PR status?

5, My son will be 18 in August 2014. If i have not secured PR status by this time, does he have to apply himself, and what chance has he got?

6, Will the work i am currently undertaking be considered as experience for a Live-in Caregiver position (rather than my sister simply applying to extend the LMO)?

7, Do i have any other options?

Many thanks for your time.

Regards,

Dave.

 

[computergeek]

The first thing you should do is obtain a copy of your medical results. These are always available to you under the "Access to Information and Privacy Act". See http://www.cic.gc.ca/english/department/atip/requests-personal.asp for information on how to request copies of those files. Because you are in Canada, there is no fee for submitting such a request.

Presumably, the time for you to challenge CIC's decision has now passed. That is unfortunate because it sounds to me like you could argue against their decision. The key seems to be the job duties described in the HRSDC listing for this NOC (http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/QuickSearch.aspx?val65=6474). While it does include "babysitters" it also includes "live-in caregiver" with different job requirements.

Thus, key in an application would be to ensure that your job duties correspond with those of the live-in caregiver/nanny class and not the "baby sitter" class. From your description of what you do, it certainly sounds like much more than the "baby sitter". However, you should also request your computer notes from Sydney because that will tell you why they rejected your application - that's the same privacy act request I mentioned earlier.

If the rejection was because the description of what you do was not consistent with the higher skill level classification (Nanny). There are some key differentiating factors, including:

Nannies care for children in the employer's residence and provide for their health and physical and social development. Parent's helpers assist parents with child-care and household duties. Nannies and parent's helpers are employed by private households, where they may also reside.

This sounds much more like what you described - and note that babysitters do not reside with the family. It may also help if you had applicable education, training in addition to your experience in providing such services in the past.

I take it that you did not apply in the live-in caregiver class, because such applications are processed through Vegreville according to http://www.cic.gc.ca/english/information/applications/live-in.asp and it does not sound like you yet qualify for an application in that class. Still, it is something to keep in mind for the future.

Something else to consider: you may be able to find employment in your other field of expertise. Alberta in particular has a shortage of specific skills and in that case you will find employers more than willing to obtain an LMO, in which case you would have employment in your field that would also allow you to apply in the FSW category.

Now to try and answer your questions:

1, Can Canada Immigration withhold details of my failed medical, without informing me at any time?

No. You must request it, but they cannot generally withhold it from you (there are some instance in which they can, but they don't seem to apply here.)

2, When my 2 year work permit is about to expire, and my application for a further work permit is considered (My sister has assured me that she will require me for at least the next 4 years), will this mystery code for the failed medical rejection come back to haunt me...will i require a further medical?

By the time you get there, let's hope you have found out the issue and resolved it. However, it is a good bet that it might be an issue when it comes time for renewal.

3, My son will be in his final year of High School, and preparing to graduate when the initial 2 year period is up (Feb 2014). Is there a possibility that Immigration could order our removal from the country, if all applications/extensions have failed?

Based upon what you have described, there is no realistic chance you are going to receive a removal order, certainly not in the timeframes you are discussing here. The most you would get is a departure order and that is rather unusual. If you ignore a departure order for more than 30 days without complying, it converts into a deportation order. A removal order is a step beyond a deportation order and usually involved criminal activity of some sort.

In addition, your son would likely also qualify for a student visa on his own, particularly given the circumstances (family in country, etc.)

4, Without an offer of Arranged Employment for a FSW application (if indeed my current position does not qualify), i am dangerously close to failing to reach the required 67 points. It's all depending on whether my 2 years College/University experience will be treat as such, due to large parts being home learning. The qualifications gained were Certificate in Management (ILM/NEBSM) and the NEBOSH General Certificate (Health & Safety). What are my realistic chances of obtaining PR status?

Have you considered working on your French skills? There are five additional points there, as well (unless you were already counting on those). Again, you may wish to consider working towards qualification of the live-in caregiver class.

5, My son will be 18 in August 2014. If i have not secured PR status by this time, does he have to apply himself, and what chance has he got?

To be honest, he's probably better off simply applying for student status in such an instance, in which case he can stay and attend University in Canada. After completing a 2 year or longer degree program he would qualify for a 3 year open work permit, and after the requisite period of time, he would qualify to apply on his own.

If you apply prior to his 22nd birthday, you could also include him with your application.

6, Will the work i am currently undertaking be considered as experience for a Live-in Caregiver position (rather than my sister simply applying to extend the LMO)?

It certainly would seem so based upon my reading of the program and your description of your job duties, but the only way to ultimately determine if this is the case is to apply and see what CIC decides.

7, Do i have any other options?

I suppose you could always fall in love with a Canadian.

You likely would benefit from finding and working with an experienced Canadian Immigration attorney, someone familiar with live-in caregiver cases in particular (most likely won't.) Indeed, there are fairly recent legal decisions affecting medical issues and live-in caregiver class, whichis yet another reason to find an attorney familiar with such cases.

Good luck!

 

[Smithsboy]

Many thanks for the time taken to answer my many questions, i am tremendously grateful.

Thank you again.

Regards,

David

 

[job_seeker]

In effect you came in under the Temporary Foreign Worker Program and as such won't be eligible to apply for PR after your 2 years works as caregiver to your niece and nephew. To remedy this, wait out the one year (so you have the necessary one year experience as a nanny to your sibling's kids) then apply again under the live in caregiver program supplying the necessary documents (need new LMO from your sister, proof of your one year experience with your sister as your employer, attach copy of your WP (babysitter, nanny, au pair)). You would also have to attach medicals from a DMP. Application should be sent outside Canada, the US being the closest (I think WPs are processed either in NYC or LA consulates). You can apply for the PR after finishing the two years required work as live in caregiver. You can include your son even if he's over 22. Check the condition on the CIC website for dependent children 22 and over.

I sincerely hope that the expertise on this forum can help solve my very complex immigration problem.

I am a British Citizen, Male, 42, and a single father of a 15 year old son. I arrived in Canada at Calgary Airport in February 2012, in possession of a positive LMO for a Live-in Caregiver (NOC 6474). My prospective employer is my older sister, a PR of Canada for 8 years. The responsibility of the role, is to provide care for my 18 year old autistic niece, and secondly, my 12 year old nephew. My sister was abandoned by the children's father a couple of years ago, and her job requires her to travel across Canada fairly frequently throughout the year. Myself and my family have visited many times over the last couple of years to provide support and assistance.

My career to date has been diverse, with my main area of employment being Health & Safety Management/Inspector/Advisor (NOC 7216), also Manufacturing Management/Supervision, and Caring for my elderly parents and also my niece, at various stages since she was 3 years old.

On arrival at the airport, during an evening in February, we were informed that there was a problem with my medical (which i took in August 2011 in the UK, at the request of Immigration), and i would not be issued with the 2 year work permit. The next hour or so was all a bit of a blur! I am, and always have been, in very good health. Finally, i was issued with a 2 year work permit, due to Immigration not recognising the code used for the rejection of my medical, and being out of office hours, not being able to contact the appropriate department. What i can remember, is that no information was given as to the reason for the initial rejection.

And so my life in this fantastic country started, and i enjoyed my work immensely. My son started High School in Grade 10 in March, and we spent the next couple of months assessing the possibility of applying for Permanent Residence, which we duly did in May.

In June, i received an email from the Centralized Intake Office informing me that my application had been rejected for the following reasons;

1, Although you have indicated that you have Arranged Employment, the occupation listed on the Labour Market Opinion - 6474 does not meet the 0, A or B skill level requirements of Regulation 82(2)a of the Immigration and Refugee Protection Act (IRPA).

2, As well you have indicated work experience in NOC 7216. A maximum of 10,000 complete Federal Skilled Worker applications, without an offer of arranged employment, or a maximum of 500 complete Federal Skilled Worker applications per National Occupation Classification (NOC) code will be considered for processing each year. Your application was received after the maximum of 500 complete Federal Skilled Worker applications per NOC 7216 was reached.

When i checked my work permit, attached to my passport, it does indeed state the occupation as Babysitters, Nannies & Par Help, and not Live-in Caregiver, as per my positive LMO and also my Contract of Employment.

I suddenly feel quite concerned, and more than a little anxiety. As a single father, my obligation to provide stability for my son is under threat. It seems that the work i am currently doing in Canada will not be considered Arranged Employment for a future FSW application, and neither will it be considered Skilled Work Experience, if i want to apply under the Canadian Experience Class.

I would be forever grateful if any forum members could answer the following questions;

1, Can Canada Immigration withhold details of my failed medical, without informing me at any time?

2, When my 2 year work permit is about to expire, and my application for a further work permit is considered (My sister has assured me that she will require me for at least the next 4 years), will this mystery code for the failed medical rejection come back to haunt me...will i require a further medical?

3, My son will be in his final year of High School, and preparing to graduate when the initial 2 year period is up (Feb 2014). Is there a possibility that Immigration could order our removal from the country, if all applications/extensions have failed?

4, Without an offer of Arranged Employment for a FSW application (if indeed my current position does not qualify), i am dangerously close to failing to reach the required 67 points. It's all depending on whether my 2 years College/University experience will be treat as such, due to large parts being home learning. The qualifications gained were Certificate in Management (ILM/NEBSM) and the NEBOSH General Certificate (Health & Safety). What are my realistic chances of obtaining PR status?

5, My son will be 18 in August 2014. If i have not secured PR status by this time, does he have to apply himself, and what chance has he got?

6, Will the work i am currently undertaking be considered as experience for a Live-in Caregiver position (rather than my sister simply applying to extend the LMO)?

7, Do i have any other options?

Many thanks for your time.

Regards,

Dave.

 

[Leon]

As a live-in caregiver, you have the right to apply for PR after 2 years of full time work. 4-5 months before your work permit expires, your sister should apply for a new LMO and you should apply to extend your work permit. After you have reached your two years, you can apply for PR for yourself and your son. You can apply for an open work permit for yourself at the same time. This permit would allow you to work for any employer at any job, for example if you would like to have another part time job or something like that.

It does not matter if your son turns 18 as the application is being processed because the cut-off age for dependent child for immigration is 22 or even higher if he is a full time student, apart from that his age is locked in on the day the application is received. He just can't get married or enter into a common-law relationship until he gets his PR because that is the only thing that would exclude him from being a dependent child.

Once he completes high school, he would need a study permit if he wants to go to college or university in Canada. It is possible for a person who is doing skilled work to get open work permits for their children in some provinces but as a live-in caregiver, you are not performing skilled work so if your son wanted to work, he would have to qualify for his own LMO and work permit.

The processing time for live-in caregivers to get PR is currently 32 months, see http://www.cic.gc.ca/english/information/times/perm-ec.asp so if it stays that way and you apply for PR in February 2014, you can expect to get it in October 2016.

 

[job_seeker]

The OP did not come in under the LCP. His job title is "Babysitters, Nannies and Par Help". Either the officer who processed his WP at the POE erred or he didn't qualify because of lack of experience or educ qualification.

As a live-in caregiver, you have the right to apply for PR after 2 years of full time work. 4-5 months before your work permit expires, your sister should apply for a new LMO and you should apply to extend your work permit. After you have reached your two years, you can apply for PR for yourself and your son. You can apply for an open work permit for yourself at the same time. This permit would allow you to work for any employer at any job, for example if you would like to have another part time job or something like that.

It does not matter if your son turns 18 as the application is being processed because the cut-off age for dependent child for immigration is 22 or even higher if he is a full time student, apart from that his age is locked in on the day the application is received. He just can't get married or enter into a common-law relationship until he gets his PR because that is the only thing that would exclude him from being a dependent child.

Once he completes high school, he would need a study permit if he wants to go to college or university in Canada. It is possible for a person who is doing skilled work to get open work permits for their children in some provinces but as a live-in caregiver, you are not performing skilled work so if your son wanted to work, he would have to qualify for his own LMO and work permit.

The processing time for live-in caregivers to get PR is currently 32 months, see http://www.cic.gc.ca/english/information/times/perm-ec.asp so if it stays that way and you apply for PR in February 2014, you can expect to get it in October 2016.

 

[Leon]

The OP did not come in under the LCP. His job title is "Babysitters, Nannies and Par Help". Either the officer who processed his WP at the POE erred or he didn't qualify because of lack of experience or educ qualification.

Oh, I missed that part. I would think it was an error because he did get the LMO for the job. In his position, I would send in a change of status form to ask that his work permit be changed from babysitter to LCP so that he can start counting his hours. Worst they will do is say no.

 

[wsongco]

or he continue to work for a minimum one year as a nanny then apply for new lmo as live in caregiver and send the new application outside canada. Once granted visa he has to flagpole to get new wp and start counting 24 months to qualify for the programs. Its a long shot but your getting a PR.

 

[Leon]

I would still advise trying for a change of status maintaining that a mistake has been made on his work permit. If they say no because he lacks experience, he waits until he has worked for a year and then applies again.