THE LAWYERS WEEKLY  December 15, 2000

IMMIGRATION

24/36 rule can be a catch-22 for Live-in Caregivers

The Live in Caregiver Program was introduced by Citizenship and Immigration Canada on April 27, 1992 to replace the earlier Foreign Domestic Movement Program which had been in effect since 1981. The aim of the program was to allow individuals to enter Canada for a period of two years on work permits to care for the minor children, elderly or disabled of Canadian citizens or permanent residents. The program was last revised on March 24, 1994. The purpose of the program was to meet a labour demand for live-in caregivers in Canada while providing an avenue for these workers to gain employment and eventually apply for permanent residence in Canada. The Canadian employer is required to obtain a validation of employment from the Department of Human Resources Development Canada in order to engage the services of a foreign live-in caregiver.

The initial program known as FDM required grade nine education and a minimum of one year of work experience. With the introduction of the live-in caregiver program, Canadian qualifications increased for the worker to require a minimum of the equivalent of Canadian secondary school and a 6 month training period with a rated assessment in a caregiving field

In 1994 the training requirement was further amended to alternatively include one year of work experience related to the job. The amendment was found necessary based on the inability of many foreign workers to satisfy the former requirement.

The effect of these changes was to eliminate in practice applicants from the Carribean and most third world countries where educational levels are low and no training program for caregivers exists. Today most applicants are of Philippine origin.

Applicants with a Quebec employer must proceed through two levels of government for approval based on two sets of regulations that although similar have some very important differences. Quebec Immigration requires that within the last 5 years the applicant possess either 6 months of work experience in the same type of employment or 6 months of professional training in a professional school for that type of employment. There is also a grade 11 minimum educational requirement (secondary school in Quebec) and a language requirement to speak and understand either English or French. The applicant must be interviewed by both the Canadian and Quebec Immigration officers overseas to insure they meet both governments’ requirements.

Once the applicant receives their Quebec Acceptance Certificate (CAQ) the Canadian Embassy will determine whether the work experience has been obtained within the last 3 years or in the alternative whether the training requirement has been met.

To make the program especially attractive to foreigners, a right to apply for permanent residence from within Canada was incorporated. This advantage still exists today and is available to live-in caregivers who have completed 24 months of work within 36 months following their initial entry into Canada on their work permit.

The problem occurs however, when the worker arrives in Canada and their job is no longer available due to the slow processing time overseas and the applicant then has to find work with a new employer, and transfer the work permit to the new employer’s name.

There is a serious backlog of cases in certain regions such as the Philippines where cases can take up to 18 months to process. Once in Canada the caregiver can only work for the employer stipulated on the work permit and if the job is no longer available they must seek a new employer who is required to go through a validation process. It can take up to 6 months before the worker obtains a new work permit. The problem is particularly acute in Quebec where a job offer validation is required from both Quebec Immigration and HRDC and where the worker is required to obtain a new CAQ from Quebec and a new work permit from Citizenship and Immigration Canada.

Often jobs do not last for 2 years based on the employer’s unilateral decision to terminate the work due to a loss of financial status, health or other personal reasons. This results in the need for the worker to transfer the work permit once again. This has ultimately a negative impact on the applicants’ ability to satisfy the 24 months of legal work experience required as a precondition for permanent residence. Transfers take too long and if one factors in the time it takes to find a new position, the 24 months mandatory requirement within 36 months to apply for permanent residence becomes totally unreasonable . Furthermore during the transfer period all parties suffer as the caregiver is unable to legally work and support herself, the Canadian employer is unable to employ her and there is a loss of tax revenue for the government.

When an applicant is refused permanent residence based on the live-in caregiver rules due to system processing delays and/or their employer’s fault the only option available is to reapply for permanent residence based on humanitarian and compassionate grounds. The application must set out in detail the valid reasons why the applicant was unable to meet the 24 months requirement within 36 months of arrival in Canada. However this is not a perfect solution as it is entirely discretionary.

The problem emanates from the existing regulation which leaves no room for discretion on the part of the immigration officer to deviate from the 24/36 month rule. This in the authors opinion requires an amendment to the existing regulations in order to remedy the injustice caused to the live in caregiver.

An amendment should provide for a discretionary provision which would permit the immigration officer to increase the period allotted to the live-in caregiver to complete their 24 months of work experience in cases where it is warranted..

Herbert Brownstein is a senior partner of Brownstein & Brownstein in Montreal