Rejected CEC application - basis for appeal?

[clodaoc]

Hi everyone,

I submitted an application for CEC residency last year and it was received end of November 2012. I received an email in January saying my application had gone through the first round of checks and it was being sent to the visa processing office in Ottowa. Since then I hadn't received any communication until today when I was emailed and told my application had been rejected. The reason given was, between August and November of 2012 I was on implied status (my work permit was expiring and I had applied for a renewal or extension prior to when my initial one expired....therefore putting me on implied status) - the visa processing office said this time frame of worked hours would not be counted in my overall requirement of 24 months of full time work. I can't understand the sense behind this. Implied status provides an individual who remains in Canada with the right to continue working. Nowhere on the CEC application does it say implied status is not permitted?

I am now weighing up the situation and trying to figure out what does and doesn't make sense. The new requirements for individuals applying for Canadian residency under CEC since the start of 2013 state individuals need to prove 12 months of full time employment (at 35 hours per week) as opposed to 24 months (at 37.5 hours) when I posted my application. Besides this the rest of the requirements stays the same (proven ability with the English or French language). If I am now being told my application is rejected based on the above, what am I being expected to provide for a new application? All the paperwork they currently have is more than sufficient to be assessed against the current application requirements. I would literally just be printing off copies of the exact same paperwork, getting a re-dated police cert (for a country I haven't lived in since moving to Canada so they would pull up the exact same information) and posting it all out to Ottowa again. My English test is still in date for another year so again I would just be posting them the same transcript. There is absolutely nothing new that would go into the new application other than the fact it would be re-dated to the present date. It would basically just be me sending through the same paperwork, the visa people going through it all again but this time assessing it against the new 12 month rule and approving the application. But in the meantime I will have to waste up to another year waiting around not knowing what's going on. I will be paying another fee for the same paperwork to be examined against criteria easier than what my current application has been assessed against.

Since I received this email I forwarded my rejection email to an immigration expert that i have kept in touch with based in Toronto who is extremely knowledgeable and helpful. She mentioned she had heard that CIC may or may not count the hours collected whilst on implied status. Why is there no set rule about this? She also suggested contacting my local MP and making an appeal through them. On top of this she said the rules state that you may reapply if your circumstances change. In this case, the change of circumstances would be that I have the necessary amount of hours for the CEC based on current requirements and resubmitting the exact same paperwork (and forking over the fee) makes no sense when they have the same paperwork in their hands already.

Struggling to come to terms with this considering I just found out a few hours ago. Is there any grounds for appeal based on the ridiculous idea of resubmitting the exact same paperwork?? I have sent an email back with basically the same points as what I raised above. Still waiting on a response.... They did provide a phone number on their email so I will call tomorrow if I don't get an email response. I don't want to get to the stage where they suddenly dispose of my paperwork and then i'm left with no choice other than apply again and fork over another massive amount of cash! Thanks for your comments in advance.

 

[MrB]

The immigration officer assessing your file certainly erred in the application of the law. What I would advice you to do is write a cover letter, to request an administrative review for the following reasons:

1/According to section 183(5)(a)(b) of the IRPR,

If a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until
(a) the day on which a decision is made, if the application is refused; or
(b) the end of the new period authorized for their stay, if the application is allowed.​

2/Also according to section 24. of OP 11

If a temporary resident applies for renewal of their work or study permit and their permit expires
before a decision is made, R186(u) and R189 (the right to continue working or studying under the
same conditions pending a determination of their application for renewal) apply only as long as
the person remains in Canada.​

That alone would change the decision on your application if it's as a result of the implied status period not counted. If they refuse I suggest you consult with an immigration lawyer or certified consultant. Immigration officers discretionary powers cannot strike out the law.

I suggest you also be careful who you consult and refer to as immigration experts. cheers!

Hi everyone,

I submitted an application for CEC residency last year and it was received end of November 2012. I received an email in January saying my application had gone through the first round of checks and it was being sent to the visa processing office in Ottowa. Since then I hadn't received any communication until today when I was emailed and told my application had been rejected. The reason given was, between August and November of 2012 I was on implied status (my work permit was expiring and I had applied for a renewal or extension prior to when my initial one expired....therefore putting me on implied status) - the visa processing office said this time frame of worked hours would not be counted in my overall requirement of 24 months of full time work. I can't understand the sense behind this. Implied status provides an individual who remains in Canada with the right to continue working. Nowhere on the CEC application does it say implied status is not permitted?

I am now weighing up the situation and trying to figure out what does and doesn't make sense. The new requirements for individuals applying for Canadian residency under CEC since the start of 2013 state individuals need to prove 12 months of full time employment (at 35 hours per week) as opposed to 24 months (at 37.5 hours) when I posted my application. Besides this the rest of the requirements stays the same (proven ability with the English or French language). If I am now being told my application is rejected based on the above, what am I being expected to provide for a new application? All the paperwork they currently have is more than sufficient to be assessed against the current application requirements. I would literally just be printing off copies of the exact same paperwork, getting a re-dated police cert (for a country I haven't lived in since moving to Canada so they would pull up the exact same information) and posting it all out to Ottowa again. My English test is still in date for another year so again I would just be posting them the same transcript. There is absolutely nothing new that would go into the new application other than the fact it would be re-dated to the present date. It would basically just be me sending through the same paperwork, the visa people going through it all again but this time assessing it against the new 12 month rule and approving the application. But in the meantime I will have to waste up to another year waiting around not knowing what's going on. I will be paying another fee for the same paperwork to be examined against criteria easier than what my current application has been assessed against.

Since I received this email I forwarded my rejection email to an immigration expert that i have kept in touch with based in Toronto who is extremely knowledgeable and helpful. She mentioned she had heard that CIC may or may not count the hours collected whilst on implied status. Why is there no set rule about this? She also suggested contacting my local MP and making an appeal through them. On top of this she said the rules state that you may reapply if your circumstances change. In this case, the change of circumstances would be that I have the necessary amount of hours for the CEC based on current requirements and resubmitting the exact same paperwork (and forking over the fee) makes no sense when they have the same paperwork in their hands already.

Struggling to come to terms with this considering I just found out a few hours ago. Is there any grounds for appeal based on the ridiculous idea of resubmitting the exact same paperwork?? I have sent an email back with basically the same points as what I raised above. Still waiting on a response.... They did provide a phone number on their email so I will call tomorrow if I don't get an email response. I don't want to get to the stage where they suddenly dispose of my paperwork and then i'm left with no choice other than apply again and fork over another massive amount of cash! Thanks for your comments in advance.

 

[lpc19800]

I'm sorry to hear this

A few things:
- would you mind posting the whole letter (removing sensitive/personal information)
- unfortunately VO's wouldn't assess against new criteria if you applied under older criteria so you'd need to resubmit (if appeal isn't an option for whatever reason)
- I can recommend bomza law group in toronto - very knowledgable and experienced.

Good luck

 

[canadavisa13]

hi clodaoc sorry to hear about your rejection.

before i make any recommendations or give any advices,i have one important question here to clarify:
*while you were working on implied status and waiting for your work permit extension,was it for the same or a new employer?
waiting for your answer

 

[CEC2013]

I'm sorry to hear this
A few things:
- would you mind posting the whole letter (removing sensitive/personal information)
- unfortunately VO's wouldn't assess against new criteria if you applied under older criteria so you'd need to resubmit (if appeal isn't an option for whatever reason)
- I can recommend bomza law group in toronto - very knowledgable and experienced.

Sorry to hear as well.

Agreed. Could you post the letter or if you have GCMS notes (minus personal info) on the rejection... It will help us see the whole picture a little more clearly. And perhaps we could offer some useful advice.

 

[clodaoc]

Thanks for the responses so far. To answer all of your questions:

1) I was on implied status for that long due to an error on their side (their meaning the people dealing with work permits etc...) I ended up having to phone the CIC helpdesk number and asked what the situation was as I had applied for an extension to my work permit in August 2012 and by November I still hadn't heard anything. I was then told over the phone a letter had been posted to me a few weeks previous. I never received this letter and was then told it was sent by regular mail which i find quite strange for such an important letter! It was then decided over the phone that my implied status ended there and then and I had to go tell my boss I needed to finish work that day.

2) I was looking to extend my work permit but stay in the say job with the same employer. I had been working for that company for 2 years.

3) Here is the information taken straight from the emailed letter I received:

I have now completed the assessment of your application for a permanent resident visa as a member of the Canadian Experience Class and have determined that you do not meet the requirements for immigration to Canada.

According to the Immigration and Refugee Protection Regulations, applicants in the Canadian Experience Class are assessed on the basis of the pass/fail requirements set out in subsection R87.1(2). The assessment of these criteria determines whether a worker with Canadian experience will be able to become economically established in Canada. The criteria are:

· knowledge of English or French,

· Canadian skilled work experience,

· Canadian educational credentials (for the Post-Graduation Stream only).

Your application was assessed based on the occupation(s) which you identified as part of your skilled work experience in Canada: Project Analyst

I am not satisfied that you meet the Canadian work experience requirement because you have not obtained sufficient full-time equivalent Canadian work experience within the 36 months preceding the date the application was made.

Any periods of self-employment or unauthorized work will not be included in calculating the period of work experience.

The period of work from 2012/08/12 to2012/11/13 when you were employed at (taken out for privacy) could not be included in the calculations of eligible work experience as you did not hold a valid work permit during that time. I note that your work permit expired on 2012/08/11.

The period of eligible Canadian work experience was calculated to be approximately 3337 hours, 563 hours short of the 3900 hours required by the Temporary Foreign Worker stream of the program. I note that you have not indicated a Canadian educational credential, and therefore cannot be considered under the Post-graduation stream of the program.

Subsection 11(1) of the Act states that a foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the Regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Subsection 2(1) specifies that unless otherwise indicated, references in the Act to “this Act” include regulations made under it.

Following an examination of your application, I am not satisfied that you meet the requirements of the Act and Regulations for the reasons explained above. I am therefore refusing your application.

Thank you for the interest you have shown in Canada.

 

[clodaoc]

I should probably also include my worked hour calculation came to over 3900 hours for the 24 months of full time work I was asked to prove.
99 full time worked weeks (3712.5 hours) plus an additional 8.56 weeks of full time temp work in the correct categories (321 hours). Their total calculated figure minus the implied status time comes to 3337 which makes no sense.

 

[YoungJC]

Thanks for the responses so far. To answer all of your questions:

1) I was on implied status for that long due to an error on their side (their meaning the people dealing with work permits etc...) I ended up having to phone the CIC helpdesk number and asked what the situation was as I had applied for an extension to my work permit in August 2012 and by November I still hadn't heard anything. I was then told over the phone a letter had been posted to me a few weeks previous. I never received this letter and was then told it was sent by regular mail which i find quite strange for such an important letter! It was then decided over the phone that my implied status ended there and then and I had to go tell my boss I needed to finish work that day.

2) I was looking to extend my work permit but stay in the say job with the same employer. I had been working for that company for 2 years.

3) Here is the information taken straight from the emailed letter I received:

I have now completed the assessment of your application for a permanent resident visa as a member of the Canadian Experience Class and have determined that you do not meet the requirements for immigration to Canada.

According to the Immigration and Refugee Protection Regulations, applicants in the Canadian Experience Class are assessed on the basis of the pass/fail requirements set out in subsection R87.1(2). The assessment of these criteria determines whether a worker with Canadian experience will be able to become economically established in Canada. The criteria are:

· knowledge of English or French,

· Canadian skilled work experience,

· Canadian educational credentials (for the Post-Graduation Stream only).

Your application was assessed based on the occupation(s) which you identified as part of your skilled work experience in Canada: Project Analyst

I am not satisfied that you meet the Canadian work experience requirement because you have not obtained sufficient full-time equivalent Canadian work experience within the 36 months preceding the date the application was made.

Any periods of self-employment or unauthorized work will not be included in calculating the period of work experience.

The period of work from 2012/08/12 to2012/11/13 when you were employed at (taken out for privacy) could not be included in the calculations of eligible work experience as you did not hold a valid work permit during that time. I note that your work permit expired on 2012/08/11.

The period of eligible Canadian work experience was calculated to be approximately 3337 hours, 563 hours short of the 3900 hours required by the Temporary Foreign Worker stream of the program. I note that you have not indicated a Canadian educational credential, and therefore cannot be considered under the Post-graduation stream of the program.

Subsection 11(1) of the Act states that a foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the Regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Subsection 2(1) specifies that unless otherwise indicated, references in the Act to “this Act” include regulations made under it.

Following an examination of your application, I am not satisfied that you meet the requirements of the Act and Regulations for the reasons explained above. I am therefore refusing your application.

Thank you for the interest you have shown in Canada.

Did you add a cover letter explaining that you were on implied status during that time? It seems to me that the officer did not recognize that your temp status was extended till the work permit application was officially denied. Did you in any way advice the officer that you were on implied status for those months?

 

[clodaoc]

Yes I did. My application was so thorough and absolutely every effort was made to point out why I was on implied status or anything different that might be questioned on my application. I spent months putting it together and anything that I thought might raise some eyebrows (like my implied status) I included a letter explaining why. My application was so big I had to send it in two separate envelopes. I don't think I could have provided any more additional supporting documentation if I tried! I also supplied a letter stating why my implied status ended in November, quoting the date and time of my phone call to the CIC helpdesk (as these conversations are apparently recorded). I wasn't hiding anything. They were given all the information I had to provide them with.

 

[YoungJC]

Yes I did. My application was so thorough and absolutely every effort was made to point out why I was on implied status or anything different that might be questioned on my application. I spent months putting it together and anything that I thought might raise some eyebrows (like my implied status) I included a letter explaining why. My application was so big I had to send it in two separate envelopes. I don't think I could have provided any more additional supporting documentation if I tried! I also supplied a letter stating why my implied status ended in November, quoting the date and time of my phone call to the CIC helpdesk (as these conversations are apparently recorded). I wasn't hiding anything. They were given all the information I had to provide them with.

I certainly think you should challenge the decision. CIC states work experience gained during an authorized time, and implied status is certainly authorized. The manual clearly states
If a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until
(a) the day on which a decision is made, if the application is refused; or
(b) the end of the new period authorized for their stay, if the application is allowed.

I'd suggest you find out the process to appeal and find a good lawyer or consultant

 

[YoungJC]

Another thing you could do is order GCMS notes so you could see the officer's reasoning for not including your implied status experience. GCMS is free to order

 

[clodaoc]

Would you know how I go about ordering these GCMS notes? I will certainly do that if you think it will help or at least provide me with more information.

 

[canadavisa13]

hi clodaoc,

*sorry again about your rejection and hope you have a good luck in the next step you decide to take.
as stated by a few forum members,implied status is totally authorized,i don't see why an immigration officer would exclude it from your experience.
did you applied for the work permit extension by yourself or was it submitted by a lawyer/employer? if it was submitted by a third party representative then double check with them that it was sent before your work permit expiry otherwise maybe IF it was submitted after the expiry date then you didn't had an implied status.
*what was the reason for your work permit extension rejection back then?

if everything on your side looks good then its for sure an immigration officer's mistake and i would suggest you email them asap explaining the situation and attach as much supporting documents as possible,and ask them to consider reopening your file.
wait for a week if you get no answer from cpp-ottawa then approach your local MP office and they will be able to get hold of CIC.
the last thing you can do is either appeal their desicion or reapply from scratch again if you still qualify(before i would choose which route to go for i would compare the time each takes and cost associated with that).

good luck and hope you hear some good news,stay positive

 

[CEC2013]

Would you know how I go about ordering these GCMS notes? I will certainly do that if you think it will help or at least provide me with more information.

Its done through ATIP and here's the link (you can request directly online). Follow the instructions. If you are still in Canada, you can order the notes for free under the Privacy Act. You want to request electronic files, not physical. Select the category for permanent residence and case files. And within 30 days, your notes will be sent to you via email. Voila!

http://www.cic.gc.ca/english/department/atip/requests-personal.asp

 

[CEC2013]

The period of work from 2012/08/12 to2012/11/13 when you were employed at (taken out for privacy) could not be included in the calculations of eligible work experience as you did not hold a valid work permit during that time. I note that your work permit expired on 2012/08/11.

I think that the claim here is - and dont get me wrong, I think this is a bit far out there and I dont agree - that the PA did NOT infact hold a permit. And thats looking at it in the most blunt manner possible. He was authorized to work, but did not hold a permit any longer. While you did not violate any rules, your experience would not be counted as there was not permit (putting you in limbo while you wait). I think this actually sets a precedent in my book, as all those hoping to stay on implied status so they can apply for CEC and BOWP, may be called into question.

Anyway, this is just my thinking...in VO's point of view. I dont necessarily agree, as the regulations dont specify this very clearly. I dont believe you will have enough to appeal. Probably a better shot with reapplying. Just my opinion.