Ziaie Law: News

Canada’s New Immigration Pilot for Rural and Northern Communities

7/2/2019

Canada’s goal to attract up to a million new immigrants over the next three years is well advertised and highly talked about. Even with the increased intake, the distribution of immigrants is still a real challenge. The vast majority of newcomers settle in the same three big cities and surrounding areas (Toronto, Vancouver, Montreal) such that the economic and social benefits of immigration do not necessarily reach all communities across Canada. In recognizing the particular challenges faced by smaller communities in attracting and retaining new immigrants, the federal government has announced the Rural and Northern Immigration Pilot for communities in Ontario, Western Canada and Canada’s three territories.

This is a unique program that will work with local communities to identify their needs and create an environment where the new immigrants will be welcomed and encouraged to stay in rural and Northern areas that need them. The program is based on the successful Atlantic Immigration Pilot (“AIIP”) program that was created in 2017 and has helped fill local market needs in the Atlantic provinces. AIIP allows employers in Atlantic Canada to hire foreign workers to fill positions if they have not been able to find the necessary workers locally. In 2018, AIIP allowed 2,500 foreign workers and international students to apply for permanent residence based on these offers from local employers in New Brunswick, Newfoundland and Labrador, Nova Scotia and Prince Edward Island.

The Rural and Northern Immigration Pilot will allow communities and organizations to target immigrants they need for specific jobs based on the needs of their local labour market. Communities that have a population of 50,000 or less if within 75km of a metropolitan area or less than 200,000 in more remote areas, may apply under this program if they can demonstrate: they have job opportunities, have an economic development plan and are able to settle new immigrants. Further it will be crucial for communities to have the support of local municipalities and immigrant-serving organizations. The program will be available to communities in Alberta, British Columbia, Manitoba, Northwest Territories, Nunavut, Ontario, Saskatchewan and Yukon.

The Rural and Northern Immigration Pilot shows the government’s recognition that the economic needs across the country are different and there is room to create unique programs to meet local needs. The ongoing challenge will be to see how well the program can be implemented and if the communities can effectively retain their new members on a going forward basis. Communities must submit their complete applications by 1 March 2019 and the successful communities will be revealed in Spring 2019.

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Maintaining legal status as a temporary resident in Canada

18/10/2018

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Every year, hundreds of thousands of foreign nationals are admitted to Canada as “temporary residents”. These may be tourists who are visiting under a visitor visa or an electronic Travel Authorization (eTA) if they are from a visa-exempt country. They may be students or workers in Canada temporarily. While many applicants are most concerned about the eligibility requirements to obtain such temporary visas to enter Canada, it is extremely important for temporary residents to understand the legal nature of their stay in Canada in order to maintain their status and ensure that they do not become inadmissible to Canada by breaching any conditions on their type of visa.

Having legal status means you are authorized to enter and remain in Canada as a temporary or permanent resident under the Immigration and Refugee Protection Act, as a Canadian citizen under the Citizenship Act or as a Registered Indian under the Indian Act. In the case of temporary residents, your status is valid for a specific period of time that is set out in your visa, study or work permit.

Apply for an extension before you lose your status
Each type of temporary visa has a different duration. For example a study permit may be for the duration of your studies in Canada. A work permit may be for the duration of the contract of employment you have with your employer in Canada. In the case of visitors you are generally permitted to stay in Canada for up to 6 months from the date of your entry (unless the officer indicates at the time of your entry that you are permitted to remain in Canada for a shorter period of time).

Irrespective of the type of temporary status you hold, you should be careful of the duration and ensure that you take appropriate steps to extend you status before your status expires. For example, if your studies are taking longer than your original study permit, you can apply to extend your study permit. In the case of visitors, you will need to leave Canada before six months or, if there is a reason why you need to remain in Canada, it is possible to apply for an extension of your status before the six months is up.
What if you miss the deadline to extend you status?
In some situations you may not be able to apply to extend your visa or apply for a new visa in time. Depending on your circumstances this may create serious problems with regards to your ability to extend your study permit or work permit and may even impact your eligibility for future visas. However, if you have missed your deadline to apply for a renewal by only a few days, there is a window of opportunity to be able to apply to restore your status for up to 90 days from the date of expiration of your visa or permit

A restoration application is very important as you must explain the circumstances that prevented you from complying with the conditions of your permit and you must meet all the conditions of your initial visa or permit. Applications are processed on a case-by-case basis and the 90 day deadline is very rigid. If you have missed your deadline you should immediately consult an experienced immigration lawyer to understand your options.
Application To Return to Canada (ARC)
In some cases, where a temporary resident has overstayed his or her authorized period to remain in Canada or did not comply with the conditions of his or her stay, the resident may be issued with a removal order. If you are issued with a removal order (which may be a departure order, deportation order or exclusion order) then you may no longer stay in Canada and it may also result in you becoming inadmissible for re-entry to Canada.
Depending on the reason you receive on the removal order you may be able to appeal the decision. However, once a removal order is final, in most cases you will need a special permission called an Authorization to Return to Canada (“ARC”) before you will be allowed to re-enter Canada.
ARC applications require that you demonstrate that there is a low possibility that you will repeat the behaviour that caused the order to be issued in the first place and your current situation as well as the reason you have for returning to Canada. The officer will also consider the reasons for which the removal order was issued and the amount of time that has passed since the order was issued. There is no guarantee that an ARC will be issued and by having the assistance of an experienced immigration lawyer you will be able to navigate the process and ensure that you submit the best application possible and have the highest chance of success.

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Business Pathways: Buying or Setting Up a Business in Canada

27/9/2018

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An entrepreneur is a person who organizes and operates a business, taking on financial risks in the hope of profit. Entrepreneurs are an important part the fabric of Canada's economy, creating and growing businesses that, at the very least, provide us with products and services and create employment.

Until 2014, Canada had a federal “Entrepreneur” immigration program that granted permanent residence to applicants on the condition that after immigrating they would buy or set up a business in Canada. There were great benefits from the businesses created under the program but monitoring the businesses was very difficult and it often took up to 5 or 6 years for applications to be approved.

However, the demand for those wanting to buy or set up a business in Canada has not changed since the program was cancelled. I am approached regularly by applicants, often business owners and managers, who want to relocate their business or buy a business in Canada because of the market opportunities they have identified in Canada. The good news is that there are visa and immigration options available for those interested in buying or setting up a business in Canada.

Under certain conditions you may qualify to obtain a work permit to buy or set up a business in Canada. The first step is that you must find an acceptable, active business opportunity. There is no list of “acceptable” businesses but the business should be a genuine business, it should be financially viable and it should be logical that given your experience and training you will be able to manage the business when you obtain your work permit. The minimum investment required for the business will be determined on a case by case basis depending on factors such as the type of business you are acquiring, the investment required to achieve the business goals, and where the business is located.

As with any other business transaction you will need a team of experts to assist you in your purchase of the business including a business lawyer to negotiate and finalize the business purchase agreements, you may require a real estate lawyer if there is a property that is part of the business, and you should also have an accountant to review the financial documents of the business and advise with regards to tax planning and related matters.

After you have the business in place and the necessary approvals, the final and critical step is to obtain a work visa to work for your own business. While you may own shares of a business in Canada without a work permit or being a permanent resident, you cannot work for the company until you have a work visa. The application for your work visa is extremely important as the officer will carefully review your application to determine if you will be able to manage the business in Canada. Further, since a work visa is a temporary visa, the officer will look at important factors such as your ties to your home country and your financial ability to pay for your investment in determining whether you will receive a work visa.

Once you receive your work visa you will be able to work in Canada for your own business, managing its day-to-day operations. It is important to note that a work visa is temporary (even though there are options to renew it) and if you are interested in applying for permanent residence later you should make clear plans from the beginning of the process to ensure that the path you choose will be suitable. The requirements for a work visa are different from those required to qualify for immigration. You should seek advice from an experienced immigration lawyer to determine your eligibility for both immigration (based on factors such as your age, education, language ability) as well as a work visa.

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Top Five Questions from Visitors to Canada

12/7/2018

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Schools are closed summer and the weather is warm making July and August the busiest months in Canada for tourists visiting from around the world. From visiting the historic sights in Montreal and Ottawa to trekking through the breathtaking natural landscapes in Alberta and British Columbia, climbing to the top of the CN Tower and of course visiting Niagara Falls there is something to see and do for everyone.

If you are travelling to Canada during the summer as tourists or want to spend time visiting family members in Canada you will need authorization to enter Canada. US citizens and greencard holders do not need visas and can enter Canada by presenting their US documents. However, nationals of all other countries must either have a “visitor visa” or an “eTA” (an electronic Travel Authorization issued to those coming to Canada from visa exempt countries).

Being new to the Canadian legal system many visitors have questions about what they can do as visitors in Canada and the limitations on their visas. While each case is unique, below are the top 5 questions I am frequently asked by visitors to Canada.

1- Should I buy travel insurance? YES! One of the key criteria in assessing your visitor visa application is your financial ability (as well as the ability of any person inviting you) to pay any expenses related to your trip. This is because visitors are not permitted to use public services in Canada such as free health care. As a visitor to Canada you will not be covered by the public health insurance system and must either have private health coverage or pay for the medical coverage you receive from a doctor or hospital. You should look into getting emergency travel insurance and speak with an experienced insurance broker in Canada to find the best possible insurance plan before you travel to Canada.

2- How long can I remain in Canada with a visitor visa? Typically when you enter Canada you will be allowed to remain for up to 6 months. In some circumstances, if the officer at the border determines that you should leave Canada before 6 months he or she may determine an earlier departure date. If they require you to leave earlier than 6 months the departure date will be written on the Canada date stamp in your passport.

If you need to remain in Canada beyond 6 months, we may be able to apply to extend your stay. We will need to prove why you need to remain longer and also that you have the financial resources to cover any expenses in the remaining time you will be in Canada. It is very important to carefully keep track of the dates that you travel to Canada and ensure that you depart before the end of your visa. Remaining beyond the validity of your visa may make you inadmissible for future entry or in future applications for visas or permanent residence. In instances where someone has overstayed their visa and lost their legal status they should consult an experienced lawyer immediately to find out how they can restore their status. It will be crucial to act quickly because the window of opportunity to restore your legal status is very limited and once it is gone things will undoubtedly become much more complicated.

I am sometimes asked if it is possible to get around the 6 month deadline by exiting Canada and re-entering Canada a few days or weeks later if you hold a multiple entry visitor visa. While there is nothing in the Immigration laws and regulations that prevents a person from re-entering with a visitor visa you should be mindful that every time you enter Canada your eligibility is checked and reaffirmed by the border officer. You must be able to convince the officer as to the purpose of your trip, your ability to support yourself and that you are a genuine visitor and not someone who is living in Canada with a visitor visa. The border officer can ask to see proof of your ongoing eligibility as a visitor and will likely do so if your pattern of travel gives rise to a suspicion that you are not visiting for a short period but rather intending to effectively live in Canada.

3- Can study or work while I am in Canada with a visitor visa? NO! When you receive a visitor visa you are only allowed to visit and cannot study or work in Canada. Visitor visas are intended for those who are traveling to Canada for a short period of time and are not intended for someone who wants to remain in Canada for long periods of time. As such you are not permitted to study or work with a visitor visa. The only exemption to this rule is if you want to participate in a short-term course of study that is less than 6 months in duration. In such a case you do not require a study permit and can participate in the course with your visitor visa.

A continuation of this question is: can I turn my visitor visa to a study visa or work visa? There is no automatic mechanism to convert a visitor visa to a study or work visa. In order to obtain either a study or work visa you will need to meet all the requirements for those visas (e.g. have an acceptance from a college or university or have a valid job offer from a Canadian employer) and generally need to apply for the visa from outside of Canada. If you are from a country that requires fingerprints, you will need to travel outside of Canada to provide your fingerprints (even if you previously provided fingerprints as part of your visitor visa application).

4- Can my visitor visa become a permanent residence status if I buy a house, have a child born in Canada or live here for a period of time? NO! In order to become a permanent resident you have to meet the criteria for one of the immigration programs in Canada. There are no limitations on who can buy property in Canada, although some areas such as Ontario and British Columbia now have additional taxes for non-residents due to the perceived effect of foreign buyers on rising home prices. However, Canada does not grant permanent residence to anyone who chooses to buy property in Canada. It is also true that Canada generally grants citizenship to children born in Canada, irrespective of their parents' visa status. However, the grant of citizenship to a child does not bring any additional rights for other family members to remain in Canada or qualify for permanent residence.

A modified version of this question is: Can my visitor visa status become a work permit if I set up or purchase a business in Canada? In some cases, the answer may be yes depending on your circumstances, your prior experience that would be of benefit in developing the business in Canada and how that business can benefit Canada. It is important to note that if you are able to do this you will obtain a work permit and if you wish to remain in Canada permanently you will still need to qualify under one of Canada's immigration programs.

5- What are your options for becoming a permanent residence? The answer depends on your unique circumstances and whether you are able to meet the requirements of one of Canada's current immigration programs. These programs include, but are not limited to: the Federal Skilled Worker Program, Federal Skilled Trades Program, Canadian Experience Class, Start-up Visa Program, Self-employed Program, Caregiver Classes, Provincial Nominee Programs or Quebec Selected Immigrant. Each of these programs has different requirements in terms of education, experience, language ability and so on that you must meet in order to qualify.

And remember while a permanent residence application is separate from your visitor application, the information you provided in your visitor visa application is part of your immigration record. If you “simplified” information or chose not to provide certain information as part of your visitor visa application, such as not declaring your education, work history or family members, then you may be at risk of a finding of misrepresentation. A finding of misrepresentation can lead to the canceling of your visitor visa, removal from Canada and a ban on you being able to submit an application for visa or permanent residence for a number of years. You should consult with an experienced immigration lawyer to assess your situation and determine the steps you need to take to rectify any mistakes that may have been previously made.

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Work Visas Under NAFTA What is at risk in NAFTA negotiations

21/6/2018

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The North America Free Trade Agreement, NAFTA, has been constantly in the news for the past year. Canada, the US and Mexico have been renegotiating the trade agreement that came into force in January 1994. While there have been changes and updates to NAFTA over the past three decades, from the sound of things the current negotiations will likely lead to major changes.

As a trade agreement, NAFTA contains provisions related to trade between these three countries, but it also includes provisions that allow citizens of the countries to work in any of the other three countries. The goal of these provisions was to make the flow of workers easier and thereby facilitate trade between the three countries. For example, based on the latest figures available, in 2016 Canada granted work permits to 17,602 Americans and 691 Mexicans under NAFTA professional provisions. In the same year, the US issued 14,768 NAFTA professional visas to Canadians and Mexicans.

NAFTA has a number of provisions that allow for the movement of people including Intracompany Transfers, Treaty Traders or Investors as well as educated professionals. For example under the professionals category, educated Canadians, Americans and Mexicans in 63 occupations can obtain work permits for up to three years to work as engineers, accountants, lawyers and so on. Under NAFTA, citizens may apply to work in any of the three countries, as long as they have a qualifying temporary employment offer. This process is much easier and faster than the process that a citizen of another country would face to secure work authorization and enter the North American workforce.

Professionals under NAFTA must fall under one of 63 occupations listed in the current NAFTA provisions. This list was created before the rise of the digital era and therefore does not include many high demand occupations. Therefore, the NAFTA negotiations are an opportunity to update this occupation list. However, the current NAFTA negotiations and the general anti-immigrant political climate in the US will not only make it difficult to update this list but there is talk that the professional provisions may be removed entirely, putting the status of tens of thousands of Canadians, Americans and Mexicans in jeapordy.

Unfortunately it is not clear what will happen to professionals if NAFTA negotiations breakdown and the US withraws from NAFTA. The good news for Canadian businesses that hire American and Mexican workers is that they may be able to apply for authorization and work permits for their employees under other programs such as the global talent stream. However, the fate of Canadians and Mexicans in the US is less clear, particularly with the strong competition for existing professional work permits and we may see thousands of Canadians returning home to Canada, reversing the general trend over the past few decades of Canadian talent leaving for the US. While the negotiations and talk of trade wars continue it is impossible to predict what will happen but we can hope that cool heads prevail and the provisions are saved and updated to allow for many more decades of prosperous trade and free movement of work between the three countries.

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Hiring a foreign employee: the case of foreign caregivers

14/6/2018

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Over the last two weeks I have written about the possibility for Canadian businesses to hire foreign workers in Canada when they face a labour shortage. This week I am writing about the case of a special category of employers: families that want to hire a foreign caregiver to work in their home to look after children or a family member with high medical needs.

As with all other visa and immigration categories, the caregiver category has changed greatly in recent years. A few months ago I wrote about changes that would impact the ability of caregivers already in Canada to be able to obtain permanent residence. But what can you do if you want to hire a foreign caregiver? Here are answers to your top three questions as you consider whether and how to hire a foreign caregiver:

1- Can I hire a “live-in” caregiver or nanny?
You cannot require that the caregiver must live with you or the family member that they are looking after. However, it is possible for the caregiver to agree to live with you or the family member that they are caring for. If you come to an agreement with your caregiver for her or him to live in your home, you must:

provide accommodation in the form of a private bedroom that is furnished
the bedroom door must have a lock and safety bolt on the inside
the bedroom must meets the municipal building requirements and the provincial / territorial health standards
you cannot charge the caregiver for room and board for the accommodations

2- What is the process for hiring a foreign caregiver?
In order to hire a foreign caregiver, you must be meet the following requirements:

Demonstrate that you want to hire someone to provide care on a full-time basis (minimum 30 hours per week).
Demonstrate that you want to hire someone to work in the private household where the care is being provided.
Prove that you have eligible individuals requiring care (either that your children are under 18 or that your family member has high medical needs).
Prove that you have the financial ability to pay the caregivers' wages. You will be required to provide your Notice of Assessment as part of the application process.
Prove that have conducted recruitment and advertisement in Canada to try to find a caregiver in Canada before looking for a foreign caregiver.

If you meet these requirements you can submit an application to Employment and Social Development Canada and if your application is approved you will be able to apply for a work permit for your foreign caregiver.

You should also note that once your caregiver is in Canada you must comply with all the requirements of the Ontario Employment Standards Act that sets out the rights that employees have including minimum wage, overtime pay, public holidays, severence pay, and various kinds of leave such as pregnancy leave, medical leave, and so on.

3- What costs are associated with hiring a caregiver?
The process of hiring a caregiver can be complex as described above. It also requires payment of at least the following costs:

Employer Compliance fee: $230
Labour Market Impact Assessment application fee: $1000 (this is waived if your total family income is below $150,000)
Advertising costs: there may be some costs associated with advertising for 4 weeks before we can submit the application (this is one of the trickiest parts of the application)
Work permit application fees: $155
If biometrics are required: $85
Transportation costs for the caregiver to travel to Canada for your caregiver
Private health insurance for the first three months before your caregiver becomes eligible for health insurance in Ontario (this will differ in other provinces)
Work place safety insurance for your nanny as a monthly premium

You should also note that you are required to provide compensation for your caregiver at the prevailing wage in the area you live. For example, the median wage in Toronto is $14 per hour and you will have to offer the same to a caregiver you wish to employ in Toronto.

Given the complexity of the process and costs involved you should speak with a specialized immigration lawyer to evaluate your chances and create the best path for bringing a caregiver for your family to Canada.

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Hiring a Temporary Foreign Worker Top 5 Questions for businesses that need to fill a labour shortage in Canada

7/6/2018

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There are more than 300,000 temporary foreign workers (“TFW”) in Canada employed across the country in different positions. In order for these individuals to work in Canada they must hold a valid work permit or benefit from an exemption that permits them to work without a work permit. If you are a business owner interested in hiring a TFW the process can be very complex, especially given that hiring a TFW is regulated by Employment and Social Development Canada (“ESDC”) with a rigorous compliance regime for employers.

If you are looking to hire a TFW to fill a labour shortage because you have not been able to find a Canadian citizen or permanent resident to fill the position, then your business will need to proceed under the Temporary Foreign Worker Program. This program addresses genuine labour shortages in Canada and is intended for employers trying to fill jobs in cases where qualified Canadian citizens or permanent residents are not available.

Below are five questions you should carefully consider when starting to navigate this interesting but difficult process:

1- What kind of position do you want to hire for?
The process of hiring a TFW will start with an understanding of the position you are looking to fill in your business. Are you looking to fill a highly technical position and you have not been able to find anyone with the necessary training or experience in Canada? Or are you looking to fill a low-skill position but cannot find permanent residents or Canadian citizens to fill the position because there is a shortage of low-skill workers in your area?

These types of situations typically require you to apply for a Labour Market Impact Assessment (“LMIA”) from ESDC based on the shortage of labour in the local market. With the LMIA you can then apply to hire a TFW from outside of Canada.

2- Have you made adequate efforts to hire a Permanent Resident or Canadian first?
In order to be permitted to hire a TFW, your business will first need to demonstrate that you have made adequate efforts to hire a PR or Canadian citizen for the position. This is a mandatory step that takes at least one month. Your business must advertise the position in the Canada Job Bank and also undertake a number of other recruitment activities targeted towards hiring PRs and Canadian citizens. If this step is not correctly implemented your business will not be able to hire a temporary foreign worker.

There are some occupations where there is an exemption from the advertising requirement. If one of these exemptions applies to your business or the position you are hiring, then it is not mandatory to demonstrate your recruitment efforts in Canada.

3- Is your business eligible to hire temporary foreign workers?
If you are looking to hire a TFW your business must be economically viable and demonstrate that it is able to pay the salary expenses related to the TFW without reducing your existing work force. Your business must typically provide documents to show its legal status (e.g. incorporation documents) as well as its financial health (e.g. tax returns and payroll documents for existing staff members). Depending on the circumstances of your business you may be asked to provide additional documents such as a commercial lease agreement or major contracts for the business.

4- Are you ready for when the TFW starts working?
Going through the application process to hire a TFW can be challenging, particularly for the first time. But the process is not over when the TFW receives his or her visa and starts working for you. When you apply to hire a TFW you undertake to pay the employee at a particular wage to perform specific job duties and under certain work conditions. There are rules and formula that determine the minimum wage based on the job description and place of employment. For example a graphic designer will have to be paid at least $35.90 per hour if employed in Toronto but in Fredericton, New Brunswick the employee could be paid $30.77 per hour.

You are required to meet these conditions throughout the term of employment of the TFW. For example you cannot reduce the TFW's wages or require them to work for more hours than what you initially requested. This is monitored through various inspections and check-ups from ESDC to ensure your performance. Therefore, it is extremely important that you understand your obligations when you are preparing and submitting your application because there is a requirement for ongoing compliance and there are consequences for the business if you are found deviate from your initial job offer. And you should make sure you have a compliance program in place to be able to track your progress and be able to respond to any requests from ESDC.

5- Is there any way to hire TFWs without applying for an LMIA?
Yes! There are opportunities to hire temporary foreign workers who are already in Canada and who hold an open work permit. The biggest group of open work permit holders are those who have graduated from an eligible post-secondary program and hold a post-graduate work permit. Those with an open work permit can be hired to legally work for you without the need for an LMIA. There are some other exceptions for when you can hire a TFW without an LMIA such as if the person is exempt under a free-trade agreement such as NAFTA to work as a professional or is a high-level executive that is being sent to your business in Canada as an intra-company transferee from a parent or subsidiary company outside Canada. Given the range of options available it is best to seek the advice of an immigration lawyer to assess the best way for your business to proceed.

And don't forget that many of the TFWs that work for you may soon become eligible for permanent residence. Your investment of time and money in hiring a TFW will no doubt pay off when he or she becomes a permanent resident of Canada is an ideal candidate to permanently join your team.

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NEWS

Canada’s New Immigration Pilot for Rural and Northern Communities

Maintaining legal status as a temporary resident in Canada

Business Pathways: Buying or Setting Up a Business in Canada

Top Five Questions from Visitors to Canada

Work Visas Under NAFTA What is at risk in NAFTA negotiations

Hiring a foreign employee: the case of foreign caregivers

Hiring a Temporary Foreign Worker Top 5 Questions for businesses that need to fill a labour shortage in Canada

Authors:
Zeynab Ziaie
Zahra Ziaie

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Categories

NEWS

Canada’s New Immigration Pilot for Rural and Northern Communities

Maintaining legal status as a temporary resident in Canada

Business Pathways: Buying or Setting Up a Business in Canada

Top Five Questions from Visitors to Canada

Work Visas Under NAFTA What is at risk in NAFTA negotiations

Hiring a foreign employee: the case of foreign caregivers

Hiring a Temporary Foreign Worker Top 5 Questions for businesses that need to fill a labour shortage in Canada

Authors: Zeynab Ziaie Zahra Ziaie

Archives

Categories

Authors:
Zeynab Ziaie
Zahra Ziaie