US and Canadian Immigration Update | Immigration Lawyer Andy Semotiuk

By Andy Semotiuk | July 29, 2013

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The following is a Q and A with immigration lawyer Andy Semotiuk. He answers questions on current immigration issues:

Can you give us a brief update on the US immigration reform effort? It’s still in the House of Representatives. What’s holding things up?

The U.S. Senate adopted a Comprehensive Immigration Reform (CIR) bill not long ago. It is now time for the House of Representatives to pass one. However, there is one major stumbling block in the House: a path to citizenship for the 11 million illegal immigrants in the United States.

The argument on the negative side goes that people who came to America illegally should not be rewarded. By extension, doing so will just encourage others to come illegally as well. It also places such illegal immigrants in a preferential position to those immigrants who followed the rules. These people would be unfairly brushed aside in favour of those who broke the rules.

The argument on the positive side to a path to citizenship is that 11 million illegal immigrants are a reality that simply cannot be ignored. America has to do something with them.

A path to citizenship would accomplish a number of favourable goals: 1. It would bring these people out of the shadows and make it possible for them to openly and legally contribute to American society. 2. By adding penalties such as a financial penalty and delayed processing of their paperwork until all those immigrants who legally applied are taken care of, the illegal immigrants will effectively pay for their sins. They will be treated fairly, but not at the expense of the legal applicants. 3. We need to add measures that will better secure American borders and reduce the attraction for illegal immigrants to come to the United States. We can do this through better policing and the E-verify program. This program lets employers go online to check the immigration status of applicants for work before they are hired.

So far, instead of meeting this path to citizenship issue head on, the Republican-dominated House has been avoiding this issue, and have instead been passing piece meal measures to repair various other aspects of the immigration law. But it take two to tango. The Senate is awaiting some comprehensive response, and is not inclined to pass piece meal measures supplied by the House. Politics in the corridors of power will have to resolve these issues. But I predict that they will be resolved and some broader measure will eventually become law, most likely by the end of this year. There is too much pressure on Congress from business, labour and various other groups, including the Latino community in the United States, for this not to happen.

This article has a story about a man who will not be deported from the US because he fears persecution in his homeland. In this case, it’s because of his sexual orientation. What are the rules when it comes to deportation and people seeking protection?

To gain protection from the state against persecution a refugee in Canada – or asylum claimant in the United States – must prove that they have a well founded fear or persecution on certain well defined grounds. These ground include race, religion, nationality, membership of a particular social group or political opinion. The person must be outside the country of his or her nationality, and is unable to, or owing to such fear, is unwilling to avail themselves of the protection of that home country.

The issue of gender persecution is not clearly stated in one of the defined grounds, but increasingly the courts have recognized it as part of the definition of a “social group.” The cited case is thus riding the wave of that trend, by recognizing that this particular claimant has the right to state protection in the United States for fear that if he is returned to his country of origin, he will face persecution by reason of being gay. This is in accord with the trend in most Western countries.

Do you have any news about investor immigration options that you can offer to people?

The most exciting news in the investor area has come from Quebec, which is reopening its investor program on the same criteria it had before. An investor can get permanent residence in Quebec by investing the sum of $800,000 with the province, interest free, for five years. Through the help of financial intermediaries, the burden of the investment has been reduced to paying a one-time amount of only $220,000 Canadian to an intermediary, generally a bank. For that fee, the bank then advances the sum of $800,000 in the name of the investor to the Quebec government, on the basis that at the end of the five year period, that money will be directly repaid to the bank. The result is that an investor effectively can ‘purchase’ Canadian permanent residence for $220,000.

It is expected that the program will be oversubscribed to the point where more than 2000 applications will be filed, so that a lottery will be used to choose who will be successful. There is a one week period starting August 1st, 2013, when investors can file. Once chosen, due to a Canadian Charter of Rights and Freedoms guarantee of mobility, investors are able to settle anywhere in Canada and not only in Quebec.

A special aspect of the program is that French-speakers will not be constrained to the one-week window, but will be able to apply at any time beyond the one week period in the coming year – the obvious reason being that Quebec wants to promote French immigration to that province.

In either case, Canadian citizenship can be obtained in three years following landing.

Other than Quebec, there is no other other purely investor program available in Canada. The EB-5 program in the United States, where an investor can gain permanent residence and a two-year initial conditional green card for $500,000 invested for effectively five years, is still in play. This program also leads to permanent residence and ultimately US citizenship after five years.