Immigration Essentials: With each case there is a very human story to consider

Tuesday, January 5, 2016 - 14:47

Dr. David Crawford and Audrea Golding traveled widely different paths toward immigration law, converging at Fragomen, a firm of immigration specialists. Their remarks on the issues facing Canadian immigrants and their employers have been edited for length and style.

 

MCC: You each took an interesting path to your current position at Fragomen in Toronto. David, you came through academia and government service into private practice in Sydney and Fragomen’s London office before settling in Toronto. Audrea, your arrival in Toronto was a bit of a homecoming after years in Los Angeles and your experiences emigrating from the U.S. to Canada and Jamaica as a child. How did you come to immigration law, and how does your background inform the counsel you provide to your clients?

 

Crawford:  My interest in immigration was fueled by what I think is the most interesting area of public policy. If you think about how most of our countries have developed economically over the last few hundred years, the contributions of immigrants have been a major feature, and they continue to be. 

 

Golding: Most people who come to immigration law enjoy working with people to get them where they want to live and settle, usually in our situation for career reasons. I didn’t deliberately plan for a career in immigration. I fell into it even though I am a child of immigrants and emigrated as a child to a number of countries. It helps me have empathy for immigrants and an understanding of what people face when they’re going through any immigration process. That helps us be good advocates, not just for the employers we tend to represent but for the employees who are directly affected by the work we do. We all bring our personal backgrounds and experiences to the work we do. Clients appreciate the understanding that we have for their personal situations.

 

MCC: Canadian immigration is undergoing major changes, including the launch of the Express Entry program, which The Economist called a move away from the country’s traditional “talent for citizenship” approach to a more economic-based model with a heavy emphasis on job offers. What’s the state of Canadian immigration today?

 

Crawford:  There’s been a shift toward skill-based immigration for a number of countries; Canada is not leading that. Populations in Western economies are aging. Attracting the right skill set to come into the labor market is a challenge, as is working out the best way to get the best people to meet the country’s growing needs. We have a new Liberal government that has promised it will give greater priority to some family migration elements. So it’s not as if everything is going in one direction. Throughout all of it, though, there remains a commitment by the Canadian government to get good quality people to come and live in Canada to enjoy the country and contribute. 

 

Golding: I started out in practice in this market some 20 years ago and then came back last year and saw a very different immigration regime. It is definitely more economic-based or employer-based. There is an emphasis on those who can securely settle into the labor market and less of an emphasis on entrepreneurship and investors. The new government has articulated its intent to place more of an emphasis on family reunification and refugees, and so I’m not sure there’s going to be a major overhaul that will change the current Express Entry program focused on those who can settle into the labor market. There has never been a strong appetite for bringing in new immigrants when there may be limited job opportunities for Canadian workers and new arrivals alike during an economic downturn. It’s a fine balance because Canada has always had a welcoming approach to immigrants. The government has a tough job trying to balance competing interests. We hope the government will continue to recognize what Canadian businesses need to be competitive globally and will remove some of the barriers to getting skilled talent here.

 

MCC: The federal government, provinces and territories in Canada share jurisdiction over certain immigration policies and practice. How does this work, and what are the challenges?

 

Crawford:  The constitution protects the provinces’ right to have a role in immigration. They can tailor some programs to their specific needs to try and attract people to their province.
It gives them a voice at the table. It can make it more complicated, but
it means that some less populated provinces can actively recruit and
get the sort of people who will make
a difference. 

 

Golding: As David said, the provincial programs give immigrants a few more options. For example, last year when the government decided to scrap its federal investor program, which had been a significant pipeline for folks to enter Canada and become permanent residents by virtue of investment into small businesses or larger enterprises, some provinces, Quebec in particular, still had an investor program that would allow the province to select those types of immigrants for the benefit of the local economy. 

 

MCC: Your backgrounds must give clients an advantage when it comes to multijurisdictional issues, particularly vis-à-vis the U.S. and Canada and Canada and the UK. Can you tell us a bit about your work representing multinationals in their global immigration programs?

 

Crawford:  We primarily worry about supporting clients who need to enter Canada. I have several accounts that cross a lot of countries. I’m the overarching relationship partner and work with colleagues in other countries to provide services. I am familiar with broad principles about immigration, enough so that I am able to talk with clients about what they’re seeking to do, and then make sure that we can prepare a plan to help them. It does help to have perspective on how things operate around the world, no question. 

 

Golding: When it comes to U.S.–Canada cross-border matters, that’s my wheelhouse. One of the reasons that I relocated here was to address the increasing demand from clients that we have in Canada for cross-border assistance, whether they’re headquartered here or are subsidiaries here of larger global corporations. When I was starting out 20 years ago, NAFTA was just coming about, and since then, the opportunities for Canadian and U.S. entities to move talent across the border have exploded. The volume of people moving across the Canada–U.S. border each day is at an all-time high. It gives us an opportunity to offer support to clients traveling on either side of
the border. 

When I was in the U.S., I had more of a singular practice. There’s so much to know in U.S. immigration that you tend to focus in on that. In Canada, there are a lot of folks moving back and forth, so you have to be sharp about the requirements on both sides of the border. Add to that mix, persons in Canada who are here on work permits from other countries and then need to go to a parent or a subsidiary in the U.S., and you’ve got people shifting across the border with all kinds of documents. It gives you a more global perspective. Clients appreciate having
a resource able to provide a full
range of services across borders and jurisdictions. 

 

MCC: How, if at all, does the political backlash over refugees that has mushroomed in the wake of the Paris attacks impact the corporate immigration work that Fragomen does?

 

Crawford:  We’ll have to wait to see. The Canadian government’s work to assist Syrian refugees coming into this country may require considerable government resources. That could have an impact on other areas of service, such as work permits and permanent residence categories, where we provide a service to clients. 

On a broader level, I would draw a very big distinction between refugee immigration and the work we do. The companies we represent need people here to provide goods and services that will be developed in Canada for Canada and the markets beyond. The refugee crisis is a humanitarian situation, which has a completely different starting point. 

 

Golding: It really depends on the government’s priorities. In Canada, thus far, and to some extent in the U.S., there may be some backlash on the ground, but the governments have been firm in their commitment to address the humanitarian crisis. In terms of the impact on our corporate immigration work, it’s about recognizing that there are going to be some practical impacts for our clients. For example, if somebody’s traveling into Europe or applying for a visa, we know that there are probably going to be some delays due to additional review or scrutiny. Even people who have a legitimate employment offer and the most diligent employers could face delays in transferring employees across the border in today’s immigration climate. Corporate clients have to be prepared for that. 

 

MCC: David, on your video on the firm’s website, you talk about the many human stories that emerge from immigration law and practice. Can you each tell us about the most challenging cases you’ve faced and how you dealt with them?

 

Crawford:  Where you’ve got sufficient information about an individual, you can make an assessment on their eligibility and claims and manage expectations based on that. What I’ve found most difficult is when you’re taken by surprise. That’s no clearer than when there’s a health problem that’s unexpected. Very early on in my career I had to deliver news to an applicant who found that she had very serious congenital heart disease. I’m glad to say that she had some really complicated surgery, reapplied, passed the new test and got through. In another case, a couple was found to be HIV positive. Neither of them knew how they contracted the disorder. It took two years of submissions and arguments before they were accepted. As practitioners we must provide the professional guidance, but of course underlying these situations is a very human story that touches all of us. 

 

Golding: Some years ago, I was contacted by a childhood friend about a mutual friend who was about two weeks from the end of a visa that she had gotten based on her marriage to her expat spouse, who was in the U.S. on a work permit. They were going through a divorce, and she was running out of time to find a way to stay in the U.S. once her status on a dependent visa came to an end. If she had left the U.S., she would have had to relinquish custody of her child, a U.S. citizen. She was at wit’s end about what to do. She had consulted with a number of immigration attorneys who had told her they couldn’t do anything for her. She had traveled around the world with her husband and had gotten dependent visas in each country he transferred to and really didn’t have a place to go from here. I recalled that over the years she had become known as a fine artist in her home country. I put together an application for her, with the help of an art gallery who wanted to hire her because of her reputation in the art world, and got her a work permit as a person of extraordinary ability. It had to happen in rapid fashion because of her desperate situation, and the U.S. immigration service’s premium processing service allowed us to get her a new status in a matter of weeks. It was very gratifying. It was a corporate law solution, something she never would have
contemplated, that kept her and
her child together. She ended up staying in the U.S. and ultimately becoming a citizen. Her child is now in college.

 

MCC: Most of our readers are top legal officers in U.S. companies. What advice would you give them on their approach to immigration and the need they all share to recruit and retain the best talent available? 

 

Crawford:  It may be a cliché, but all businesses are different. What they require for immigration varies. Where does it fit into your business model? That sometimes gets lost in the mix, and immigration becomes a bit of a stopgap that people fall back on without thinking about whether they are doing it the right way. We get involved in those conversations to try and help businesses work out what they want.

 

Golding: In terms of recruitment and retention, immigration plays more and more of a significant part in the search for skilled talent. In the U.S. and Canada, especially in the high-tech industry and the search for skilled workers, a large portion of the talent for the future will come out of markets that companies are trying to penetrate. Capturing that talent typically will require an immigration solution. Eventually, as those persons get experience and become more attractive to other companies, immigration becomes a way to retain that person. It has to be looked at as a significant human resources retention and recruitment tool. 

Often the immigration component comes in at the last minute when somebody’s been recruited and it looks like they have a work permit that was valid for another employer or is valid only for a certain period of time. That’s because nobody thought that they should look at their recruitment and retention from an immigration perspective. It’s becoming more and more important for companies to include immigration training and immigration know-how within their human resources teams. 

The other component is compliance. That’s the biggest issue for legal officers in both the U.S. and Canada – making sure that immigration isn’t left to the mobility and the HR community alone, and not having legal officers understand that there are risks to their companies if they run afoul of immigration laws. At the end of the day, the compliance and the legal officers within companies need to be aware of the significant ramifications that noncompliance could lead to. 

 

MCC: Fragomen has been one of the fastest growing firms in the world, and the Toronto office is a big part of that. Tell us about the firm’s growth strategy, particularly as it pertains to this office.

 

Crawford:  A lot of clients, particularly after 2008, were looking for opportunities to grow as the world economy struggled. We found ourselves able to commit to going to jurisdictions where we could help clients expand their footprint. We were working hand in glove with our clients to maximize their global capability. At the same time, and Toronto’s an example, we’ve made sure that we work with our clients within our own jurisdictions. 

Fragomen is a firm of immigration specialists. We don’t do other things. We take the visa stuff very seriously. It adds to our culture because we are working in the same area. It makes conversations within the office very easy and fosters a sense of interdependence, not only within offices but between offices. 

 

Golding: Our growth is strongly linked with the growth of the firm globally. As the firm grows, our ability to service global clients’ needs wherever they originate feeds our growth. As long as they have a need in Canada, it means that we have to have the infrastructure and the expertise to help those clients in this market. 

We talked a bit about the growth in cross-border traffic. It is a global phenomenon in that companies that are headquartered anywhere in the world will have a Canadian presence. Our growth strategy is to help our clients pursue their goals in this market and get to know all parts of their business, all parts of their industry, and be a resource and advocate for them in a way that other firms perhaps may not where there’s a singular focus in representing clients. We try to be partners with them across the board, not just in front of an immigration officer.

 

Dr. David CrawfordPartner, Fragomen (Canada) Co. dcrawford@fragomen.com

Audrea GoldingPartner, Fragomen (Canada) Co. agolding@fragomen.com