T4 and T4As for CEC foreign worker application

[justtheme]

Hi,

I have 2 years of full time work experience with the same company. I first started with a temporary contract (which generated a T4A) and after approx 5 months i have an indefinite contract (T4As at the end of each year). Will everything count for my Canadian Experience Class application?

Thanks!

[jes_ON]

T4As usually indicate that you have self-employed status, which is specifically excluded from CEC qualifying employment.

If you meant to say that you will get T4s (not T4As) at the end of each year, then your work experience would count except for the first 5 months - so you will have to work until you complete 2 full years as an employee of the company.

[justtheme]

The conditions of my work were not the ones of a self employed person. I worked full time, 40 hours per week, at the same location, I was subordinated to the owner, I didn't profit, I received a monthly salary... My employer set all those terms as part of my temporary contract at that time and probably misclassified me.

[jes_ON]

The conditions of my work were not the ones of a self employed person. I worked full time, 40 hours per week, at the same location, I was subordinated to the owner, I didn't profit, I received a monthly salary... My employer set all those terms as part of my temporary contract at that time and probably misclassified me.

Did your employer make all the statutory deductions (taxes etc.) for the work identified on the T4A?  Are the tax deductions shown on the T4A, the same as on the T4? 

[justtheme]

Did your employer make all the statutory deductions (taxes etc.) for the work identified on the T4A?  Are the tax deductions shown on the T4A, the same as on the T4? 

Some people say I was self-employed but almost none of my work conditions show that (See: http://www.cra-arc.gc.ca/E/pub/tg/rc4110/rc4110-e.html). My employment agreement doesn't even state that I was self-employed.

Here are all of the characteristics of an employee that apply to me:

- I was subordinated. My company directly scrutinized and controlled how and when the work was performed. In fact, they stated the number of weekly hours, daily schedule and work address in the agreement.
- I worked at the company's head quarters and used only their tools and equipment to complete the tasks
- I was not responsible for any operating expenses
- My relationship with the company was continuous, they even stated a probationary period (3 months)
- I was not financially liable if I did not fulfill the obligations of the contract.
- I don't have a GST nor any business presence.
- I didn't profit and I don't own any portions of the company
- My company controlled with respect to both the results of the work and the method used to do the work.
- My company controlled the method and amount of pay.
- My company determined what jobs I would do.
- I received training from my company


My occupation even had the same NOC code that the one I used later.

The only issue seems to be that I had to file my own taxes, pay for my pension plan and other deductions. But the whole definition and characteristics of the job were the ones that employees use.

Can I apply under CEC?

[justtheme]

Btw, my NOC code is 5124: Communications Specialist. I need to use those 4 months of employment and I truly think that the conditions were there

[justtheme]

Btw, my NOC code is 5124: Communications Specialist. I need to use those 4 months of employment and I truly think that the conditions were there

So I emailed Buffalo giving them details about my situation and below is their reply. Not sure what it means but looks like my situation is a gray area for them:

Thank you for your enquiry.
 
We regret that we are unable to provide individual counselling nor can we provide assistance in completing your application form.
 
You should follow the instructions in the application kit. If you are unable to supply any of the documents or information requested, please enclose a detailed letter of explanation when you submit your application.

[jes_ON]

The only issue seems to be that I had to file my own taxes, pay for my pension plan and other deductions.

Then it is quite simple - For those 4-5 months, you were self-employed.  Period.   So you will need to continue to work for that company as an employee until you meet the 2 years of work experience AS AN EMPLOYEE before you are qualified.  If you apply now (nothing stopping you), you will simply be throwing your application fee away.

Not sure what your circumstances are that you can't work another 4-5 months, but you should also look into the PNP program for your province...

[justtheme]

Then it is quite simple - For those 4-5 months, you were self-employed.  Period.   So you will need to continue to work for that company as an employee until you meet the 2 years of work experience AS AN EMPLOYEE before you are qualified.  If you apply now (nothing stopping you), you will simply be throwing your application fee away.

Not sure what your circumstances are that you can't work another 4-5 months, but you should also look into the PNP program for your province...

4 months. I will not be able to keep working because Human Resources just refused my last LMO application. My employer made mistakes in the application (due to ignorance. Wrong NOC category, low wage) and my implied status will end as soon as the WP decision is issued (around mid January, according to CIC). I will ask them to give me some extra grace time to wait for the new LMO but I think they will likely not wait.

What would I need from my employer to prove that I was an employee?
If they agree to categorize me as such, would a letter be sufficient for immigration purposes?
Is there a way to request for more time to process my WP and wait for the LMO?

[jes_ON]

Sorry to hear about all that.   Get your employer to submit that new LMO application ASAP, you never know.  If worse comes to worse and your work permit application is refused while you are still waiting for the new LMO decision, you have a 90-day grace period after your work permit is refused during which you can apply to restore status and apply for a new work permit with the new LMO - But of course you cannot work during that grace period (until you receive a new work permit).

As for those 4-5 months - if your employer agrees that it was a mistake and you should not have been classified as self-employed, s/he could try to correct it with the CRA - it looks like it may be possible to cancel a T4A and issue a T4 - there may be penalties involved - and then you would have to file an amended tax return with the CRA for that time period.   I'm just guessing here, so if your employer is willing to do that for you, s/he would have to contact the CRA for correct information.

Of course, you can always TRY to convince CIC that the T4A was a mistake and you were really an employee - stranger things have happened - but I doubt it will be successful.

[justtheme]

Sorry to hear about all that.   Get your employer to submit that new LMO application ASAP, you never know.  If worse comes to worse and your work permit application is refused while you are still waiting for the new LMO decision, you have a 90-day grace period after your work permit is refused during which you can apply to restore status and apply for a new work permit with the new LMO - But of course you cannot work during that grace period (until you receive a new work permit).

As for those 4-5 months - if your employer agrees that it was a mistake and you should not have been classified as self-employed, s/he could try to correct it with the CRA - it looks like it may be possible to cancel a T4A and issue a T4 - there may be penalties involved - and then you would have to file an amended tax return with the CRA for that time period.   I'm just guessing here, so if your employer is willing to do that for you, s/he would have to contact the CRA for correct information.

Of course, you can always TRY to convince CIC that the T4A was a mistake and you were really an employee - stranger things have happened - but I doubt it will be successful.

Hi Jes - Thanks a lor for your advice. I genuinely appreciate it. it is not an easy case.

I got in touch with a couple of immigration lawyers (both of them very specialized in the matter). So far one of them has replied and confirmed to me that I could apply counting my first 4 months of "self-employment". Here's what M. Max Chaudhary (www.chaudharylaw.com) had to say:

Hello, we have filed a CEC application using a contract where deductions were not paid by the emloyer and the case has thus far been accepted, and medicals were issued. It thus is possible to file such a case.
If you have any questions, please contact me.

I will book a consultation with Mr. Chaudhary to get more details. There seems to be very little clarity on this topic. I've spent days looking this up and so far I've only found cases of Research Assistants that used T4As to apply under CEC.

Ps. Jes, now I get why you're so passionate about this. I think after this whole process and I could start giving advice too LOL Geez

[jes_ON]

Your case is one where a lawyer may be of help - choose carefully tho, this board is littered with stories of bad experiences with lawyers/consultants...

Just a caution - just because one person was successful or "got away with" something doesn't mean that you will too... it does seem a bit idiosyncratic.  (BTW - I'm not implying that you are trying to cheat, yours is yet another unfortunate case of reality not conforming to CIC rules).

And yes, once you go thru it, you will be the reigning expert on this particular hurdle ... good luck and let us know what happens...

[flag2009]

TO justtheme:

be cautious with lawyers, getting to do medicals is NO big deal nowadays, since CIC is sending medical before an officer reviews your file.

[justtheme]

TO justtheme:

be cautious with lawyers, getting to do medicals is NO big deal nowadays, since CIC is sending medical before an officer reviews your file.

But this category is a pass/fail one. As soon as the officer verifies eligibility, medicals and PCC are requested. There's very little room for back and forth...

[jes_ON]

But this category is a pass/fail one. As soon as the officer verifies eligibility, medicals and PCC are requested. There's very little room for back and forth...

Mmmm.... Not quite.  It appears that medicals are now being requested before the eligibility review is complete.  Only a completeness check is conducted initially... As for PCCs, in most cases you have to submit them as oart of the application (it is true that for some countries, they are requested after the eligibility review).

It's true that it is pass/fail, tho - exactly why it will be difficult for you to prove your case...